1. (a) Time for filing. Unless otherwise provided by statute or this section, a person must file a written request for a hearing with the Texas Department of Human Services (DHS) Hearings Department so that the Hearings Department receives the written request within 15 days from the date the person receives DHS's notice of adverse action. If a request for a hearing is not filed in accordance with the provisions of this section, unless otherwise provided by statute, the person will be deemed to have consented to DHS's action, and the request for a hearing will be denied.
2. (b) Form of request. The request must be in writing, in the form of a petition or letter, and must state the basis of the appeal of the adverse action. The person must include with the request a legible copy of the letter or notice received from DHS that specified the proposed adverse action. The request for a hearing is not complete without a copy of the adverse action notice or letter. The Hearings Department will not forward a request for appeal to the State Office of Administrative Hearings (SOAH) unless it is accompanied by a copy of DHS's adverse action notice or letter. If a request for a hearing is not completed within 15 days of the initial request, unless otherwise provided by statute, the person will be deemed to have consented to the department's action, and the request for a hearing will be denied.
3. (c) Referral to SOAH. Upon receipt of a request to set a hearing filed in accordance with the requirements of this section, the director of the Hearings Department will transfer the appeal to SOAH within a reasonable time for disposition according to 1 Texas Administrative Code Part VII. Transferring a case to SOAH for hearing does not waive the department's right to assert any defenses, including, but not limited to, jurisdiction or mandatory statutory requirements.
4. (d) Special requirements for requesting nurse aide appeals. A nurse aide must file a written request for a hearing with the Hearings Department so that the Hearings Department receives the written request within 30 days from the date the nurse aide receives DHS's notice of adverse action.
5. (e) Special requirements for requesting medication aide appeals. A medication aide or an applicant for a medication aide permit must file a written request for a hearing with the Hearings Department so that the Hearings Department receives the written request within 30 days from the date the medication aide or applicant receives DHS's notice of adverse action.

6. (f) Special requirements for requesting nursing facility administrator administrative penalty appeals. Within 20 days from the date the administrator receives DHS's notice of assessment of an administrative penalty, the administrator may file with the Hearings Department:

   1. (1) a written acceptance of the determination and the penalty recommended by DHS, or

   2. (2) a written request for a hearing on

      1. (A) the occurrence of the violation, and/or
      2. (B) the amount of the penalty.
7. (g) Special requirements for requesting motor vehicle and recreational license appeals. If a licensee wishes to request a hearing on DHS's petition to suspend a license, the licensee must file a written request for a hearing with the Hearings Department not later than the 20th day after the date of service of the notice.

8. (h) Special requirements for requesting administrative penalty appeals pursuant to §242.066 of the Texas Health and Safety Code.

   1. (1) Not later than the 20th day after the date on which DHS's notice of adverse action is sent, the person may give written consent to the recommended penalty, submit a plan of correction if the violation is subject to correction, or file a written request for a hearing.
   2. (2) If a plan of correction has been submitted and rejected, then, not later than the 20th day after the date on which DHS's notice that the plan of correction is rejected is sent, the person may give written consent to the recommended penalty or file a written request for a hearing.

9. (i) Special requirements for requesting administrative penalty appeals pursuant to §252.066 of the Texas Health and Safety Code.

   1. (1) Not later than the 20th day after the date on which DHS's notice of adverse action is received, the person notified may accept DHS's determination, including the proposed penalty, or may file a written request for a hearing on the determination.
   2. (2) If the person notified of the violation accepts DHS's determination or if the person fails to respond in a timely manner to the notice, the commissioner or the commissioner's designee may issue an order approving the determination and ordering that the person pay the proposed penalty.

10. (j) Special requirements for appeals of placement in the employee misconduct registry.

    1. (1) Not later than the 30th day after the date on which DHS's notice of adverse action is received, the person may accept DHS's determination or file a written request for a hearing on the determination.
    2. (2) If the person accepts DHS's determination, DHS shall issue an order approving the determination and ordering that the incident of misconduct be recorded in the registry.

11. (k) Election of arbitration as alternative to hearing.

    1. (1) A person or DHS may elect binding arbitration as an alternative to a hearing for any of the following adverse actions, unless the United States Health Care Financing Administration requires that the appeal be resolved by the federal government:

       1. (A) failure to renew a license pursuant to the Texas Health and Safety Code, §242.033;
       2. (B) suspension or revocation of a license pursuant to the Texas Health and Safety Code, §242.061;
       3. (C) assessment of a civil penalty pursuant to the Texas Health and Safety Code, §242.065;
       4. (D) assessment of a monetary penalty pursuant to the Texas Health and Safety Code, §242.066; or
       5. (E) assessment of a penalty pursuant to the Texas Human Resources Code, §32.021(n).
    2. (2) The rules and procedures for electing arbitration as an alternative to a hearing are codified at 1 Texas Administrative Code Chapter 163 (relating to Arbitration Procedures for Certain Enforcement Actions of the Department of Human Resources).
    3. (3) Arbitration may not be used to resolve a dispute related to an affected institution that has had an award levied against it in the previous five years.

12. (l) Representation of parties.

    1. (1) Respondent. DHS is represented by an attorney appointed by the general counsel.

    2. (2) Petitioner. The petitioner may be represented by any of the following persons:

       1. (A) the petitioner;
       2. (B) a licensed attorney, upon filing of a notice of representation with the administrative law judge and service on all parties;
       3. (C) a non-attorney person designated in writing by the petitioner to the administrative law judge; or
       4. (D) if the petitioner is a corporation, by an officer, board member, or any other person designated by written resolution of the board of directors of the corporation, filed with the administrative law judge and served on all parties.
    3. (3) Attorney not required. A petitioner is not required to have an attorney in order to appear and participate at a hearing. DHS will not provide an attorney to represent a petitioner.
    4. (4) Change in representation. A party wishing to change its representative files a written notice of substitution of representative with the administrative law judge. An attorney wishing to withdraw from representing a party must do so in accordance with the Texas Rules of Civil Procedure.

Source Note:The provisions of this §357.485 adopted to be effective January 25, 2000, 25 TexReg 391; amended to be effective May 1, 2000, 25 TexReg 3556; amended to be effective November 1, 2001, 26 TexReg 8356; transferred effective September 1, 2004, as published in the Texas Register September 17, 2004, 29 TexReg 9013.