PART 20. TEXAS WORKFORCE COMMISSION
CHAPTER 801. LOCAL WORKFORCE DEVELOPMENT BOARDS
SUBCHAPTER A. GENERAL PROVISIONS
The Texas Workforce Commission (TWC) proposes amendments to the following section of Chapter 801, relating to Local Workforce Development Boards:
Subchapter A. General Provisions, §801.1
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The purpose of the proposed Chapter 801 rule change is to address changes in Texas Government Code §2308.256(a) and (g) because of the passage of House Bill (HB) 1615 by the 88th Texas Legislature, Regular Session (2023). Regarding Local Workforce Development Board (Board) composition, the bill removes the requirement that a Board member must have expertise in child care or early childhood education and adds the requirement that a Board must have representatives from the child care workforce.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
(Note: Minor editorial changes are made that do not change the meaning of the rules and, therefore, are not discussed in the Explanation of Individual Provisions.)
SUBCHAPTER A. GENERAL PROVISIONS
TWC proposes the following amendments to Subchapter A:
§801.1. Requirements for Formation of Local Workforce Development Boards
Section 801.1 is amended by amended Texas Government Code §2308.256(a) to add that a Board must include a representative from the child care workforce and subsection §2308.256(g) subsequently removes the requirement that at least one Board member shall have expertise in child care or early childhood education by amending §801.1 as follows:
--Section 801.1(g)(2)(C)(vi) is removed because of the amended Texas Government Code §2308.256(a) requirement. The subsequent clause is renumbered.
--Section 801.1(g)(2)(D)(i) and (ii) are also removed and the language in §801.1(g)(2)(D)(ii) is merged into §801.1(g)(2)(D).
PART III. IMPACT STATEMENTS
Chris Nelson, Chief Financial Officer, has determined that for each year of the first five years the rules will be in effect, the following statements will apply:
There are no additional estimated costs to the state and to local governments expected as a result of enforcing or administering the rules.
There are no estimated cost reductions to the state and to local governments as a result of enforcing or administering the rules.
There are no estimated losses or increases in revenue to the state or to local governments as a result of enforcing or administering the rules.
There are no foreseeable implications relating to costs or revenue of the state or local governments as a result of enforcing or administering the rules.
There are no anticipated economic costs to individuals required to comply with the rules.
There is no anticipated adverse economic impact on small businesses, microbusinesses, or rural communities as a result of enforcing or administering the rules.
Based on the analyses required by Texas Government Code §2001.024, TWC has determined that the requirement to repeal or amend a rule, as required by Texas Government Code §2001.0045, does not apply to this rulemaking.
Takings Impact Assessment
Under Texas Government Code §2007.002(5), "taking" means a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the US Constitution or the Texas Constitution, §17 or §19, Article I, or restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action, and is the producing cause of a reduction of at least 25 percent in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect. TWC completed a Takings Impact Assessment for the proposed rulemaking action under Texas Government Code §2007.043. The primary purpose of this proposed rulemaking action, as discussed elsewhere in this preamble, is to address changes in Texas Government Code §2308.256(a) and (g) as a result of the passage of HB 1615 by the 88th Texas Legislature, Regular Session (2023). Regarding Board composition, the bill adds the requirement that a Board must have at least one representative from the child-care workforce.
The proposed rulemaking action will not create any additional burden on private real property or affect private real property in a manner that would require compensation to private real property owners under the US Constitution or the Texas Constitution. The proposal also will not affect private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. Therefore, the proposed rulemaking will not cause a taking under Texas Government Code Chapter 2007.
Government Growth Impact Statement
TWC has determined that during the first five years the rules will be in effect, they:
-- will not create or eliminate a government program;
-- will not require the creation or elimination of employee positions;
-- will not require an increase or decrease in future legislative appropriations to TWC;
-- will not require an increase or decrease in fees paid to TWC;
-- will not create a new regulation;
-- will not expand, limit, or eliminate an existing regulation;
-- will not change the number of individuals subject to the rules; and
-- will not positively or adversely affect the state's economy.
Economic Impact Statement and Regulatory Flexibility Analysis
TWC has determined that the rules will not have an adverse economic impact on small businesses or rural communities, as the proposed rules place no requirements on small businesses or rural communities.
Mariana Vega, Director, Labor Market Information, has determined that there is not a significant negative impact upon employment conditions in the state as a result of the rules.
Courtney Arbour, Director, Workforce Development Division, has determined that for each year of the first five years the rules are in effect, the public benefit anticipated as a result of enforcing the proposed rules will be to expand Board membership to ensure that Boards have adequate representation from the child care workforce and that such child care representatives are able to influence local policymaking.
PART IV. COORDINATION ACTIVITIES
During the Workforce Call on July 21, 2023, Board executive directors and Board staff were informed of the upcoming changes to the rule. The call was made at the beginning of the rulemaking process and an additional Workforce Call was made prior to the Commission approving the rule for public comment.
PART V. PUBLIC COMMENTS
Comments on the proposed rules may be submitted to TWCPolicyComments@twc.texas.gov and must be received no later than January 5, 2024.
PART VI. STATUTORY AUTHORITY
The rule is proposed under the specific authority of House Bill 1615, 88th Texas Legislature, Regular Session (2023), which amended Texas Government Code §2308.256 to require that Boards include a representative of the child care workforce.
The rules are proposed under the general authority of Texas Labor Code §301.0015 and §302.002(d), which provide TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.
The proposed rule affects Texas Government Code Chapter 2308.
§801.1.Requirements for Formation of Local Workforce Development Boards.
(a) Purpose of Rule.
(1) Upon application by the chief elected officials (CEOs) and approval of the Commission, the Commission shall forward an application to form a Local Workforce Development Board (Board) to the Governor.
(2) Before an application may be submitted to the Governor, all requirements of this section shall be met.
(b) State Law. The formation of Boards is governed
by Texas Government Code[,] Chapter 2308.
(c) Chief Elected Official Agreement. Creation of a Board requires agreement by at least three-fourths of the CEOs in the local workforce development area (workforce area) who represent units of general local government, including all of the CEOs who represent units of general local government having populations of at least 200,000. The elected officials agreeing to the creation of the Board shall represent at least 75 percent of the population of the workforce area.
(d) Chief Elected Officials. The CEOs may, and are encouraged to, consult with local officials other than the ones delineated below. The following officials are designated as the CEOs for the purpose of establishing agreements to form Boards:
(1) Mayors.
(A) The mayor of each city with a population of at least 100,000;
(B) or, if there is no city with a population of greater than 100,000, the mayor of each city with a population greater than 50,000;
(C) or, if there are no cities with a population of greater than 50,000, the mayor of the largest city in the workforce area.
(D) For purposes of this section, municipal population will be determined by the figure last reported by the Texas Demographic Center at the time of submission of the application to the Commission.
(2) All county judges included in a workforce area as designated by the Governor.
(e) Time of Application. CEOs in a workforce area may
not establish a Board until the Governor has designated that area
as a workforce area as provided in Texas Government Code[,]
Chapter 2308.
(f) Applications shall meet all Governor-approved criteria for the establishment of Boards.
(g) Procedures for Formation of a Board. The CEOs shall comply with the following procedures to form a Board.
(1) Public process procedure. If three-fourths of the CEOs, as defined in subsection (d) of this section, agree to initiate procedures to establish a Board, they shall conduct a public process, including at least one public meeting, to consider the views of all affected organizations before making a final decision to form a Board. This public process may include, but is not limited to, notices published in various media and surveys for public comment.
(2) Application procedure.
(A) The CEOs shall submit an application to the Commission. This application shall include evidence of the actions required by paragraph (1) of this subsection. As a part of the application, each CEO who is in agreement regarding the formation of a Board, shall execute the following documents:
(i) An interlocal agreement delineating:
(I) the purpose of the agreement;
(II) the process that will be used to select the CEO who will act on behalf of the other CEOs and the name of such CEO if the person has been selected;
(III) the procedure that will be followed to keep those CEOs informed regarding Board activities;
(IV) the initial size of the Board;
(V) how resources allocated to the workforce area will be shared among the parties to the agreement;
(VI) the process to be used to appoint the Board members, which shall be consistent with applicable federal and state laws; and
(VII) the terms of office of the members of the Board.
(ii) An acknowledgment in the following form: We, the chief elected officials of the Workforce Development Area, acknowledge that the following are responsibilities and requirements pursuant to the formation of the Board:
(I) The Board will assume the responsibilities for
the following committees and councils that will be replaced by the
Board unless otherwise provided in Texas Government Code[,]
Chapter 2308: private industry council, quality workforce planning
committee, job service employer committee, and local general vocational
program advisory committee;
(II) At least one Workforce Solutions Office shall be established within 180 days of Board certification;
(III) The Board shall have its own independent staff and not be a provider of workforce services, unless the Board secures a waiver of these provisions;
(IV) The CEOs shall enter into a partnership agreement with the Board to designate a grant recipient to receive, be accountable for, and be liable for any misuse of block grant funds;
(V) The partnership agreement shall also specify the entity that will administer the programs, which may be separate from the entity that receives the funds from the state;
(VI) The partnership agreement shall define the process through which the Boards and CEOs will develop the strategic and operational plans, including the training plan required under the Workforce Innovation and Opportunity Act; and
(VII) The strategic plan shall be reviewed by both the Commission and the Texas Workforce Investment Council and approved by the Governor before block grants will be available to the workforce area.
(B) The application shall include evidence that any affected existing Board has been notified and agrees that its functions and responsibilities will be assumed by the proposed Board upon the proposed Board's final certification by the Governor.
(C) The application shall include the names and affiliations
of individuals recommended for Board membership, with documentation
that CEOs followed the nomination process specified in applicable
state and federal law, including Texas Government Code[,] §2308.255
and §2308.256.
(i) Private sector members shall be owners of business concerns, chief executives, chief operating officers of nongovernmental employers, or other private sector executives who have substantial management or policy responsibility. To be eligible to represent the private sector, at least 51 percent of an individual's annual income shall be from private sector sources.
(ii) Private sector membership should represent the composition of the local pool of employers. The private sector membership should include representatives of the region's larger employers and emerging growth industries. Primary consideration should be given to private sector employers who do not directly provide employment and workforce training services to the general public. CEOs shall develop a profile of the workforce area's major industries using locally obtained information and state-published data. The Agency shall provide relevant labor market information, including data that identifies employment trends, emerging high-growth, high-demand industries, the size of local employers, and other data needed to assist CEOs in developing the employer profile. Documentation submitted with the application shall show how the regional employer profile is reflected in the Board membership.
(iii) Board membership shall include representatives
of local organized labor organizations, community-based organizations,
educational agencies, vocational rehabilitation agencies, public assistance
agencies, economic development agencies, the public employment service,
local literacy councils, [and] adult basic and continuing
education organizations, and the child care workforce as
required by law.
(iv) Representatives of local organized labor organizations shall be nominated by local labor federations unless no employees in the workforce area are represented by such organizations, in which case nominations may be made by other representatives of employees. A labor federation is defined as an alliance of two or more organized labor unions for the purpose of mutual support and action.
(v) Board nominees shall be actively engaged in the organization, enterprise, or field that they are nominated to represent. Board nominees shall have an existing relationship with the workforce area through residence or employment within the workforce area.
[(vi) At least one of the members
of a Board appointed under Texas Government Code, §2308.256(a)
shall, in addition to the qualifications required for the members
under that subsection, have expertise in child care or early childhood education.]
(vi) [(vii)] At least one of
the members of a Board appointed under Texas Government Code[,] §2308.256(a)
shall, in addition to the qualifications required for the members
under that subsection:
(I) be a veteran as defined in Texas Government Code[,] §2308.251(2); and
(II) have an understanding of the needs of the local veterans' population and willingness to represent the interests and concerns of veterans in the workforce area.
(D) No individual member shall be a representative
of more than one sector or category described in this section, except
as statutorily permitted for one or more members having the qualifications
set forth in subparagraph (C)(vi) of this paragraph.[:]
[(i) expertise in child care or early
childhood education; or]
[(ii) the qualifications set forth in subparagraph (C)(vii) of this paragraph.]
(E) The application shall include documentary evidence substantiating compliance with the application procedure, including but not limited to, written agreements, minutes of public meetings, copies of correspondence, and such other documentation as may be appropriate.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 19, 2023.
TRD-202304894
Les Trobman
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: February 4, 2024
For further information, please call: (512) 850-8356
The Texas Workforce Commission (TWC) proposes amendments to the following sections of Chapter 853, relating to Independent Living Services for Older Individuals Who Are Blind:
Subchapter A. Independent Living Services for Older Individuals Who Are Blind, §§853.1 - 853.6
Subchapter B. Services, §853.10
Subchapter C. Customer Financial Participation, §853.21
Subchapter D. Case Documentation, §853.30
Subchapter E. Customer's Rights, §853.40
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The purpose of the proposed Chapter 853 rule change is to amend eligibility for the OIB program, clarify language for consistency purposes, and complete its four-year review.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
(Note: Minor editorial changes are made that do not change the meaning of the rules and, therefore, are not discussed in the Explanation of Individual Provisions.)
Texas Government Code §2001.039 requires that every four years each state agency review and consider for readoption, revision, or repeal each rule adopted by that agency. TWC has conducted a rule review of Chapter 853, Independent Living Services for Older Individuals Who Are Blind, and any changes are described in Part II of this preamble.
SUBCHAPTER A. Independent Living Services for Older Individuals Who Are Blind
TWC proposes amendments to Subchapter A, as follows:
§853.1. Definitions
Section 853.1 is amended to remove references to Independent Living Services (ILS) and add definitions for "Older Individuals Who are Blind (OIB)" and "significant visual impairment." Subsequent paragraphs are renumbered.
§853.2. Referral
Section 853.2 is amended to remove a reference to ILS, add additional referral sources, and to more clearly describe the referral process.
§853.3. Accessible Communication
Section 853.3 is amended to remove references to ILS.
§853.4. Application
Section 853.4 is amended to more clearly describe the application process.
§853.5. Eligibility
Section 853.5 is amended to remove a reference to ILS and add "significant visual impairment" to the eligibility criteria.
§853.6. Ineligibility Determination
Section 853.6 is amended to clarify language.
SUBCHAPTER B. Services
TWC proposes amendments to Subchapter B, as follows:
§853.10. Independent Living Plan
Section 853.10 is amended to clarify the time frame for developing an ILP and to update the form number.
SUBCHAPTER C. Customer Financial Participation
TWC proposes amendments to Subchapter C, as follows:
§853.21. Customer Participation in the Cost of Services
Section 853.21 is amended to clarify language relating to customer participation in cost of service and to remove a reference to ILS.
SUBCHAPTER D. Case Documentation
TWC proposes amendments to Subchapter D, as follows:
§853.30. Case Closure
Section 853.30 is amended to add language regarding minimal services closures and remove a subsection about post-closure services. The removed subsection included obsolete terminology that was later replaced but is no longer applicable to OIB.
SUBCHAPTER E. Customer's Rights
TWC proposes amendments to Subchapter E, as follows:
§853.40. Rights of Customers
Section 853.40 is amended to remove references to ILS and add receiving a diagnosis of significant visual impairment as one of the requirements to receive OIB services.
PART III. IMPACT STATEMENTS
Chris Nelson, Chief Financial Officer, has determined that for each year of the first five years the rules will be in effect, the following statements will apply:
There are no additional estimated costs to the state and to local governments expected as a result of enforcing or administering the rules.
There are no estimated cost reductions to the state and to local governments as a result of enforcing or administering the rules.
There are no estimated losses or increases in revenue to the state or to local governments as a result of enforcing or administering the rules.
There are no foreseeable implications relating to costs or revenue of the state or local governments as a result of enforcing or administering the rules.
There are no anticipated economic costs to individuals required to comply with the rules.
There is no anticipated adverse economic impact on small businesses, microbusinesses, or rural communities as a result of enforcing or administering the rules.
Based on the analyses required by Texas Government Code, §2001.024, TWC has determined that the requirement to repeal or amend a rule, as required by Texas Government Code, §2001.0045, does not apply to this rulemaking.
Takings Impact Assessment
Under Texas Government Code §2007.002(5) "taking" means a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the US Constitution or the Texas Constitution, §17 or §19, Article I, or restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action, and is the producing cause of a reduction of at least 25 percent in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect. TWC completed a Takings Impact Assessment for the proposed rulemaking action under Texas Government Code §2007.043. The primary purpose of this proposed rulemaking action, as discussed elsewhere in this preamble, is to amend eligibility for the OIB program, clarify language for consistency purposes, and complete its four-year review, as required by Texas Government Code §2001.039.
The proposed rulemaking action will not create any additional burden on private real property or affect private real property in a manner that would require compensation to private real property owners under the US Constitution or the Texas Constitution. The proposal also will not affect private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. Therefore, the proposed rulemaking will not cause a taking under Texas Government Code Chapter 2007.
Government Growth Impact Statement
TWC has determined that during the first five years the rules will be in effect, they:
--will not create or eliminate a government program;
--will not require the creation or elimination of employee positions;
--will not require an increase or decrease in future legislative appropriations to TWC;
--will not require an increase or decrease in fees paid to TWC;
--will not create a new regulation;
--will not expand, limit, or eliminate an existing regulation;
--will not change the number of individuals subject to the rules; and
--will not positively or adversely affect the state's economy.
Economic Impact Statement and Regulatory Flexibility Analysis
TWC has determined that the rules will not have an adverse economic impact on small businesses or rural communities, as the proposed rules place no requirements on small businesses or rural communities.
Mariana Vega, Director, Labor Market Information, has determined that there is not a significant negative impact upon employment conditions in the state as a result of the rules.
Cheryl Fuller, Director, Vocational Rehabilitation Division, has determined that for each year of the first five years the rules are in effect, the public benefit anticipated as a result of enforcing the proposed rules will be to clarify program rules and increase efficiency of program operations.
PART IV. COORDINATION ACTIVITIES
The proposed rule amendments update Chapter 853 to match current OIB terminology, more accurately describe the referral, application, and case closure process, eligibility criteria, and the time frame for developing an independent living plan.
Because the proposed changes do not add new requirements but only align the rules with current policy and practices, TWC assesses that additional stakeholder engagement is not required for the development of these proposed rules. The public will have an opportunity to comment on these proposed rules when they are published in the Texas Register as set forth below.
PART V. PUBLIC COMMENTS
Comments on the proposed rules may be submitted to TWCPolicyComments@twc.texas.gov and must be received no later than February 25, 2024.
SUBCHAPTER A. INDEPENDENT LIVING SERVICES FOR OLDER INDIVIDUALS WHO ARE BLIND
PART VI. STATUTORY AUTHORITY
The rules are proposed under:
--Texas Labor Code §352.103(a), which provides TWC with the authority to establish rules for providing vocational rehabilitation services; and
--Texas Labor Code §301.0015(a)(6), which provides TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.
The proposed rules relate to Title 4, Texas Labor Code, particularly Chapter 352.
§853.1.Definitions.
In addition to the definitions contained in Texas Labor Code §352.001, 34 CFR §361.5, and §856.3 of the Agency's Division for Rehabilitation Services rules, the following words and terms, when used in this chapter, shall have the following meanings:
(1) Act--The Rehabilitation Act of 1973, as amended (29 USC 701 et seq.).
(2) Adjusted income--The dollar amount that is equal to a household's annual gross income, minus allowable deductions.
(3) Applicant--An individual who applies for [Independent
Living Services for] Older Individuals Who Are Blind (OIB) [(ILS-OIB)] services.
(4) Attendant care--A personal assistance service provided to an individual with significant disabilities to aid in performing essential personal tasks, such as bathing, communicating, cooking, dressing, eating, homemaking, toileting, and transportation.
(5) Blind--An individual having not more than 20/200 visual acuity in the better eye with correcting lenses or visual acuity greater than 20/200 but with a limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees.
(6) Center for Independent Living (CIL)--Has the meaning assigned by §702 of the Act (29 USC §796a).
(7) Client Assistance Program (CAP)--A federally funded program under 34 CFR Part 370 that provides information, assistance, and advocacy for individuals with disabilities who are seeking or receiving services from programs funded under the Act. In Texas, the designated agency is Disability Rights Texas (DRTx).
(8) Comparable services or benefits--Services and benefits that are provided or paid for, in whole or part, by other federal, state, or local public programs, or by health insurance, third-party payers, or other private sources.
(9) Customer--An individual who is eligible for and
receiving OIB [ILS-OIB] services under this chapter.
(10) Customer participation system--The system for
determining and collecting the financial contribution that a customer
may be required to pay for receiving OIB [ILS-OIB] services.
(11) Customer representative--Any individual chosen by a customer, including the customer's parent, guardian, other family member, or advocate. If a court has appointed a guardian or representative, that individual is the customer's representative.
(12) Federal Poverty Guidelines--The poverty guidelines updated periodically in the Federal Register by the US Department of Health and Human Services under the authority of 42 USC §9902(2), found at https://aspe.hhs.gov/poverty-guidelines.
(13) Independent Living Plan (ILP)--A written plan in which the customer and OIB staff have collaboratively identified the services that the customer needs to achieve the goal of living independently.
(14) Low vision--A condition of having a visual acuity not more than 20/70 in the better eye with correcting lenses, or visual acuity greater than 20/70 but with a limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than 30 degrees, or having a combination of both.
(15) Older Individuals Who Are Blind (OIB)--The independent living services program that serves individuals ages 55 and over who are blind or visually impaired.
(16) [(15)] Significant disability--A
significant physical, mental, cognitive, or sensory impairment that
substantially limits an individual's ability to function independently
in the family or community.
(17) Significant visual impairment--A disease or condition of the eye that does not meet the definitions of Blind or Low Vision but does create a significant impediment to independent living and cannot be corrected with glasses or contact lenses.
(18) [(16)] Transition services--Services that:
(A) facilitate the transition of individuals with significant disabilities from nursing homes and other institutions to home and community-based residences, with the requisite supports and services; and
(B) provide assistance to individuals with significant disabilities who are at risk of entering institutions so that the individuals may remain in the community.
§853.2.Referral.
(a) An individual may be referred for OIB [ILS-OIB] services in [by] a variety of ways
[organizations], including, but not limited to:
(1) a physician's office;
(2) a community organization;
(3) the Center for Independent Living (CIL);
(4) a senior community organization; [or]
(5) family, customer representative, and friends;[.]
(6) contract providers; or
(7) online self-referral portal.
(b) A referral shall include the name of the individual seeking services, the address where the individual resides, and an email [e-mail] address and telephone number, if available.
(c) During the referral process, OIB staff may determine the level of services needed by the customer, provide minimal services, or [shall] verify the customer's eligibility criteria. Minimal services may[, determine the level of services needed by the customer, and provide minimal services, which can] include information and referral [guide], a guide to independent living, bump dots for kitchen appliances,
and low-cost magnifiers. If minimal services are all that
a customer requires, the case may [can] be closed
as a referral only.
(d) For service delivery to begin, an individual shall submit a complete application and document that all eligibility requirements are met.
§853.3.Accessible Communication.
(a) The Agency shall provide all members of the public with disabilities who are seeking information or other services from the Agency access to and use of electronic and information resources comparable to the access and use provided to members of the public without disabilities, unless compliance with this section imposes a significant difficulty or expense to the Agency under Texas Government Code §2054.460.
(b) The Agency may use alternate methods or formats to provide timely access by individuals with disabilities to Agency electronic and information resources.
(c) The Agency shall ensure that OIB [ILS-OIB
] applicants and customers are given the opportunity to request
and receive communication from the Agency in an alternate format or
by alternate methods.
§853.4.Application.
An individual is considered to have completed the [submitted an] application process when [the
individual or the individual's representative, as appropriate]:
(1) the individual or the individual's representative
has completed and signed the OIB application form and
an OIB staff member has entered the[--including entry of]
electronic PIN into the case management system[--the
ILS-OIB application form];
(2) the individual or the individual's representative has provided the information necessary to initiate an assessment to determine eligibility and service delivery; and
(3) the individual or the individual's representative is available to complete the assessment process to determine eligibility.
§853.5.Eligibility.
(a) To be eligible for OIB [ILS-OIB],
a customer must:
(1) be age 55 or older;
(2) be blind or have low vision or a significant visual impairment, as defined in §853.1, relating to Definitions;
(3) be an individual for whom independent living goals are feasible; and
(4) be present in Texas.
(b) Eligibility for blindness, [or]
low vision, or a significant visual impairment is determined
by OIB staff based on the documented diagnosis of a licensed practitioner.
(c) Individuals shall establish eligibility through existing data and information, including, but not limited to, medical records and information used by the Social Security Administration. The information may be obtained from the applicant, the applicant's family members, or the applicant's representative. OIB staff may assist in locating or obtaining existing documentation.
(d)The Agency shall substantively evaluate the documentation and application to determine whether eligibility requirements are met.
(e) OIB staff shall endeavor to make an eligibility determination within 60 days from the time a completed and signed application for services has been received. The eligibility determination is conditional on the applicant's availability to complete the assessment process, as set forth in §853.4(3) of this subchapter. When an applicant is unavailable to complete such assessment process in a timely manner due to unforeseen circumstances, which may include, but are not limited to, medical conditions or hospitalizations, the 60-day period shall be abated until the applicant is available to complete the necessary assessment process to determine eligibility.
(f) Eligibility cannot be established unless and until all required elements under subsection (a) of this section have been completed and documented, including any assessment to establish eligibility.
(g) Eligibility requirements are applied without regard to an individual's age, color, creed, gender, national origin, race, religion, or length of time present in Texas.
§853.6.Ineligibility Determination.
(a) A determination of ineligibility shall be based only on a substantive evaluation of an applicant's completed and signed application, including all documentation required to establish eligibility under §853.5(a) of this subchapter.
(b) Before making a determination of ineligibility,
OIB staff shall provide the applicant or the applicant's representative,
as appropriate, an opportunity to consult with OIB staff. OIB staff
shall notify the applicant, or the applicant's representative, as
appropriate, of an ineligibility determination. Notice shall be provided
in accessible format and through accessible methods and in compliance
with[, as required under] Texas Government Code §2054.460, if applicable. The notice shall include the following:
(1) A brief statement of the ineligibility determination, with reference to the requirements under this chapter and any deficiencies;
(2) The mailing date of the determination;
(3) An explanation of the individual's right to an appeal;
(4) The procedures for filing an appeal with the Agency, including applicable time frames;
(5) The right to have a hearing representative, including legal counsel;
(6) How to contact the Texas CAP, which is DRTx; and
(7) The contact information [address
or fax number] to which the appeal must be sent.
(c) When appropriate, OIB staff may refer the applicant to other agencies and facilities.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 19, 2023.
TRD-202304896
Les Trobman
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: February 4, 2024
For further information, please call: (512) 850-8356
The rule is proposed under:
--Texas Labor Code §352.103(a), which provides TWC with the authority to establish rules for providing vocational rehabilitation services; and
--Texas Labor Code §301.0015(a)(6), which provides TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.
The proposed rule relates to Title 4, Texas Labor Code, particularly Chapter 352.
§853.10.Independent Living Plan.
(a) Once an individual is determined eligible, the
ILP is developed [and agreed to] within 90 days of
the eligibility date. If the ILP cannot be completed within 90 days,
then OIB staff must document the reason for the delay in a case note. [from the date of notification of eligibility, unless an alternate
date is agreed to by the customer or the customer's representative,
as appropriate].
(b) OIB staff must jointly develop the ILP and all subsequent amendments in writing, through consultation with the customer or the customer's representative, as appropriate.
(c) A customer may waive receipt of the written plan
by signing the Agency Waiver of Independent Living Plan (VR 5154 [DARS 5154]).
(d) Through consultation, OIB staff and the customer, or the customer's representative, as appropriate, determine how services shall be delivered and document service delivery methods in the electronic record of the ILP, which OIB staff must maintain.
(e) The Agency shall ensure that the customer or the customer's representative, as appropriate, is advised of procedures and requirements affecting the development and review of the ILP.
(f) To receive a copy of the ILP and its amendments in a medium other than print, the customer must inform OIB staff of the preferred medium.
(g) OIB staff shall review the ILP at least annually with the customer or the customer's representative, as appropriate, to assess the customer's progress in meeting the objectives identified in the ILP.
(h) OIB staff shall incorporate any revisions to the ILP that are necessary to reflect changes in the customer's goals, intermediate objectives, or needs.
(i) The customer must inform the Agency in a timely manner of changes that will affect the provision of services, including, but not limited to, the customer's unavailability to receive services.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 19, 2023.
TRD-202304897
Les Trobman
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: February 4, 2024
For further information, please call: (512) 850-8356
The rule is proposed under:
--Texas Labor Code §352.103(a), which provides TWC with the authority to establish rules for providing vocational rehabilitation services; and
--Texas Labor Code §301.0015(a)(6), which provides TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.
The proposed rule relates to Title 4, Texas Labor Code, particularly Chapter 352.
§853.21.Customer Participation in the Cost of Services.
(a) Some [The following] independent
living services, as set forth [defined] in §853.11,
relating to Scope of Services, may be [are]
subject to customer participation in cost of service as defined
in OIB policy.[:]
[(1) Transportation, excluding transportation
for diagnostic services; and]
[(2) Adaptive aids or appliances that cost more than $50.]
(b) OIB staff shall administer the customer participation
system in accordance with the rules in this chapter, the OIB [ILS-OIB] policy manual, and 34 CFR §367.67(b)(1).
(c) OIB staff shall provide those independent living
services [defined as] not requiring customer participation
in cost of services as set forth in §853.11 of this
chapter at no cost to the customer.
(d) OIB staff shall determine the customer's adjusted gross income and the percentage of the Federal Poverty Guidelines at https://aspe.hhs.gov/poverty-guidelines for that income, based on documentation provided by the customer.
(e) OIB staff is required to apply the Federal Poverty Guidelines at https://aspe.hhs.gov/poverty-guidelines to determine customer participation.
(f) The customer or customer's representative shall
sign an ILP [a customer participation agreement]
acknowledging [the amount of] the customer's contribution
[fee] for services and providing written agreement that:
(1) the information provided by the customer or the customer's representative about the customer's household size, annual gross income, allowable deductions, and comparable services or benefits is true and accurate; or
(2) the customer or the customer's representative chooses not to provide information about the customer's household size, annual gross income, allowable deductions, and comparable services or benefits.
(g) If the customer or the customer's representative, as appropriate, chooses not to provide information on the customer's household size, annual gross income, allowable deductions, and comparable services or benefits, the customer shall pay the entire cost of applicable services.
(h) The customer shall report to OIB staff as soon
as possible all changes to household size, annual gross income, allowable
deductions, and comparable services or benefits and sign an amended
ILP [a new customer participation agreement].
(i) When the customer amends the ILP [signs
a new participation agreement], the new [amount of the]
customer's contribution [fee] for services [service] takes effect the beginning of the following month.
The new contribution [amount] shall not be applied retroactively.
(j) OIB staff shall develop a process to reconsider
and adjust the customer's contribution [fee]
for services based on circumstances that are both extraordinary and
documented. This may include assessing the customer's ability to pay
the customer's participation amount. Extraordinary circumstances include:
(1) an increase or decrease in income;
(2) unexpected medical expenses;
(3) unanticipated disability-related expenses;
(4) a change in family size;
(5) catastrophic loss, such as fire, flood, or tornado;
(6) short-term financial hardship, such as a major repair to the customer's home or personally owned vehicle; or
(7) other extenuating circumstances for which the customer makes a request and provides supporting documentation.
(k) The customer's contribution [calculated
fee] for services remains in effect during the reconsideration
and adjustment process.
(l) OIB staff shall:
(1) use program income that is received from the customer
[participation system] only to provide services outlined
in §853.11 of this chapter; and
(2) report fees collected as program income.
(m) The Agency may not use program income received
from the customer [participation system] to supplant any
other fund sources.
(n) The Agency may not pay any portion of the customer's
contribution [participation fee].
(o) The customer's ILP [participation
agreement] and all financial information collected by OIB staff
are subject to subpoena.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 19, 2023.
TRD-202304898
Les Trobman
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: February 4, 2024
For further information, please call: (512) 850-8356
The rule is proposed under:
--Texas Labor Code §352.103(a), which provides TWC with the authority to establish rules for providing vocational rehabilitation services; and
--Texas Labor Code §301.0015(a)(6), which provides TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.
The proposed rule relates to Title 4, Texas Labor Code, particularly Chapter 352.
§853.30.Case Closure.
(a) The Agency closes a case when minimal services have been provided enhancing the applicant's independence and the applicant does not need the full array of OIB services, or when the customer's ILP has been completed, typically within 18 months of plan development. The case will be closed sooner without completion of services if:
(1) the customer does not meet eligibility criteria;
(2) the customer is unavailable, for an extended period of time, to complete an assessment of independent living needs and staff has made repeated efforts to contact and encourage the applicant to participate;
(3) the customer has refused services or further services;
(4) the customer is no longer present in Texas;
(5) the customer's whereabouts are unknown;
(6) the customer's medical condition is rapidly progressive or terminal;
(7) the customer has refused to cooperate with the Agency; or
(8) the customer's case has been transferred to another agency.
(b) A customer or the customer's representative, as appropriate, shall be notified of any case closure except when the customer's whereabouts are unknown.
[(c) Post-closure services shall not
normally exceed six months.]
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 19, 2023.
TRD-202304899
Les Trobman
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: February 4, 2024
For further information, please call: (512) 850-8356
The rule is proposed under:
--Texas Labor Code §352.103(a), which provides TWC with the authority to establish rules for providing vocational rehabilitation services; and
--Texas Labor Code §301.0015(a)(6), which provides TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.
The proposed rule relates to Title 4, Texas Labor Code, particularly Chapter 352.
§853.40.Rights of Customers.
(a) In accordance with applicable legal provisions,
the Agency does not, directly or through contractual or other arrangements,
exclude, deny benefits to, limit the participation of, or otherwise
discriminate against any individual on the basis of age, color, disability,
national origin, political belief, race, religion, sex, or sexual
orientation. For the purposes of receiving OIB [ILS-OIB]
services, the customer must be blind or have a low vision diagnosis
or a significant visual impairment as defined in §853.1;
however, that requirement is not considered discrimination against
any individual on the basis of disability.
(b) OIB staff shall ensure the customer or the customer's representative, as appropriate, is notified in an accessible format about the rights included in subsection (a) of this section, and §853.21, relating to Customer Participation in the Cost of Services, when:
(1) the customer applies for services;
(2) OIB staff determines that a customer is ineligible for services; and
(3) OIB staff intends to terminate services.
(c) Filing a complaint with DRTx:
(1) A customer has the right to appeal a determination to the state's CAP. The CAP in Texas is implemented by DRTx.
(2) DRTx advocates are not employees of the Agency. There are no fees for CAP services, which are provided by advocates and attorneys when necessary. Services are confidential.
(3) A customer who is enrolled in OIB services [ILS-OIB], or the customer's representative, may file a complaint
with DRTx alleging that a requirement of OIB [ILS-OIB]
was violated. The complaint does not need to be filed with OIB
[ILS-OIB].
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 19, 2023.
TRD-202304900
Les Trobman
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: February 4, 2024
For further information, please call: (512) 850-8356