1. (a) Proposal for decision. After conducting the hearing, the State Office of Administrative Hearings (SOAH) issues a proposal for decision to the Texas Department of Human Services (DHS) for all hearings except for Summer Food Service Program appeals as set out in subsection (c) of this section.
2. (b) Exceptions, briefs, and replies. Any exception regarding the proposal for decision issued by SOAH must be filed with DHS's Hearings Department and SOAH within 15 days of the issuance of the proposal for decision. Replies and briefs must be filed with the Hearings Department and SOAH within 10 days of the filing of the exception. A copy is served on all parties to the contested case.
3. (c) Final decisions in Summer Food Service Program appeals. After conducting a hearing on an appeal involving the Summer Food Service Program, SOAH issues the final decision and final order in the case.

4. (d) Review of proposal for decision. The commissioner or the commissioner's designee may change a finding of fact or conclusion of law made by SOAH, or may vacate or modify an order issued by SOAH, only if DHS determines that

   1. (1) the SOAH administrative law judge did not properly apply or interpret applicable law, agency rules, written policies, or prior administrative decisions;
   2. (2) a prior administrative decision on which the SOAH administrative law judge relied is incorrect or should be changed; or
   3. (3) a technical error in a finding of fact should be changed.
5. (e) Reasons for change of SOAH proposal for decision or order. The commissioner or the commissioner's designee states in writing the specific reason and legal basis for a change made under this subsection.
6. (f) Final orders. The commissioner or the commissioner's designee issues a final order in each case in which SOAH has issued a proposal for decision. The final order either adopts the findings of fact and conclusions of law contained in the proposal for decision or makes changes in accordance with subsection (d) of this section.
7. (g) Manner of issuing final orders. Final orders are mailed by certified mail, return receipt requested, to the parties or their representatives. The parties or their representatives are presumed to have been notified of the final order on the third day after the date on which the final order is mailed. If a final order is returned unclaimed, the final order is re-mailed by regular mail service. If a final order has been re-mailed after having been returned unclaimed, a party is deemed to have been notified of the final order on the third day after the date it was first mailed, if mailed to the last known address of the addressee.

8. (h) Special requirements for nurse aide appeals.

   1. (1) Time for issuing final order. In any action involving an appeal by a nurse aide, the final order must be issued on or before the expiration of 120 days from the date the nurse aide's request for hearing is received by DHS.
   2. (2) Determinations of neglect. The administrative law judge must not find that a nurse aide has neglected a resident if the nurse aide demonstrates that the neglect was caused by factors beyond the control of the nurse aide.
9. (i) Special requirement for medication aide appeals. In any action involving an appeal by a medication aide or an applicant for a medication aide permit, the final order must be issued on or before the expiration of 120 days from the date the medication aide's or applicant's request for hearing is received by DHS.
10. (j) Special requirements for Child and Adult Care Food Program appeals. In any appeal involving the federal Child and Adult Care Food Program, the final order must be issued on or before the expiration of 120 days from the date DHS received a request for hearing.
11. (k) Special requirements for Summer Food Service Program appeals. In any appeal involving the federal Summer Food Service Program, the final order must be issued on or before the expiration of five days from the date the hearing is closed.
12. (l) Special requirements for nursing facility administrator administrative penalty appeals. When a final order is issued in any appeal involving an administrative penalty, a notice is provided to the administrator of the administrator's right to judicial review of the final order.
13. (m) Special requirements for motor vehicle and recreational license appeals. The commissioner or the commissioner's designee deems the allegations of the petition for suspension of license to be admitted and renders an order suspending a license if the licensee fails to respond to the notice of adverse action issued by DHS or request a hearing. The order must be delivered promptly to the appropriate licensing authority.

Source Note:The provisions of this §357.489 adopted 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.