PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES
CHAPTER 91. HEARINGS UNDER THE ADMINISTRATIVE PROCEDURE ACT
As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all its functions were transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code §531.0055, requires the Executive Commissioner of HHSC to adopt rules for the operation of and provision of services by the health and human services system, including rules in Texas Administrative Code (TAC), Title 40, Part 1. Therefore, the Executive Commissioner of HHSC proposes the repeal of 40 TAC, Part 1, Chapter 91, Hearings Under the Administrative Procedure Act, comprised of §§91.1 - 91.8.
BACKGROUND AND PURPOSE
The purpose of the proposal is to repeal 40 TAC, Chapter 91.
SECTION-BY-SECTION SUMMARY
The proposed repeal of 40 TAC, Chapter 91 deletes the rules as no longer needed, because the content of the rules has been added to proposed new 26 TAC, Chapter 110.
FISCAL NOTE
Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rule repeals will be in effect, enforcing or administering the repeals does not have foreseeable implications relating to costs or revenues of state or local governments.
GOVERNMENT GROWTH IMPACT STATEMENT
HHSC has determined that during the first five years that the rule repeals will be in effect:
(1) the proposed repeals will not create or eliminate a government program;
(2) implementation of the proposed repeals will not affect the number of HHSC employee positions;
(3) implementation of the proposed repeals will result in no assumed change in future legislative appropriations;
(4) the proposed repeals will not affect fees paid to HHSC;
(5) the proposed repeals will not create new rules;
(6) the proposed repeals will repeal existing rules;
(7) the proposed repeals will not change the number of individuals subject to the rules; and
(8) the proposed repeals will not affect the state's economy.
SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS
Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities because the proposed repeals do not require a change to current business practices.
LOCAL EMPLOYMENT IMPACT
The proposed repeals will not affect a local economy.
COSTS TO REGULATED PERSONS
Texas Government Code §2001.0045 does not apply to these rules because the repeals do not impose a cost on regulated persons.
PUBLIC BENEFIT AND COSTS
Stephen Pahl, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rules are in effect, the public will benefit from the repeal of 40 TAC, Chapter 91 because it will be easier to find the new rules in 26 TAC, Chapter 110.
Trey Wood has also determined that for the first five years the rules are repealed, there are no anticipated economic costs to persons who are required to comply with the proposed repeals because the repeals do not impose any additional costs on those required to comply.
TAKINGS IMPACT ASSESSMENT
HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.
PUBLIC COMMENT
Written comments on the proposal may be submitted to Josie Esparza, Program Specialist, Mail Code E-370, 701 W. 51st Street, Austin, Texas 78751; or by email to hhscltcrrules@hhs.texas.gov.
To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 21R045" in the subject line.
STATUTORY AUTHORITY
The repeals are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rule-making authority; and Texas Human Resources Code §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.
The repeals implement Texas Government Code §531.0055, §531.021, and Chapter 531, Subchapter A-1; and Texas Human Resources Code §32.021.
§91.1.Purpose.
§91.2.Definitions.
§91.3.Contested Case Heard by SOAH.
§91.4.Contested Case Heard by HHSC.
§91.5.Review of Proposal for Decision.
§91.6.Issuance and Finality of Decision.
§91.7.Motion for Rehearing.
§91.8.Judicial Review.
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 August 10, 2022.
TRD-202202971
Karen Ray
Chief Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: September 25, 2022
For further information, please call: (512) 438-3161
CHAPTER 452. ADMINISTRATION GENERAL PROVISIONS
The Texas Veterans Commission (commission) proposes amendment to Chapter 452, Advisory Committees.
PART I. PURPOSE AND BACKGROUND
The proposed amendment is made to change eligibility requirements for the Veterans County Service Officer Advisory Committee Membership. The change will ensure that current Veterans County Service Officers provide their ongoing challenges and best practices to the Committee for consideration and action.
PART II. EXPLANATION OF SECTIONS
Section 452.2
Subsection (d) (2) deletes "majority of members" to read "members" and changes eligibility requirements to include only current Veteran County Service Officers.
PART III. IMPACT STATEMENTS
FISCAL NOTE
Michelle Nall, Chief Financial Officer of the Texas Veterans Commission, has determined for each year of the first five years the proposed rule amendment will be in effect, there will not be an increase in expenditures or revenue for state and local government as a result of administering the proposed rule.
COSTS TO REGULATED PERSONS
Ms. Nall, Chief Financial Officer, has also determined there will not be anticipated economic costs to persons required to comply with the proposed rule.
LOCAL EMPLOYMENT IMPACT
Anna Baker, Director, Veterans Employment Services of the Texas Veterans Commission, has determined that there will not be a significant impact upon employment conditions in the state as a result of the proposed rule.
SMALL BUSINESS, MICRO BUSINESS AND RURAL COMMUNITIES IMPACT
Megan Tamez, Director of the Veterans Entrepreneur Program of the Texas Veterans Commission, has determined that the proposed rule will not have an adverse economic effect on small businesses, micro businesses or rural communities as defined in Texas Government Code §2006.001. As a result, an Economic Impact Statement and Regulatory Flexibility Analysis is not required.
PUBLIC BENEFIT
Shawn Deabay, Deputy Executive Director of the Texas Veterans Commission, has determined that for each year of the first five years the proposed rule amendments are in effect, the public benefit anticipated as a result of administering the amended rule will reduce the need for formal disputes and settle disputes at the lowest level possible.
GOVERNMENT GROWTH IMPACT STATEMENT
Mr. Deabay has also determined that for each year of the first five years that the proposed rule amendments are in effect, the following statements will apply:
(1) The proposed rule amendments will not create or eliminate a government program.
(2) Implementation of the proposed rule amendments will not require creation of new employee positions, or elimination of existing employee positions.
(3) Implementation of the proposed rule amendments will not require an increase or decrease in future legislative appropriations to the agency.
(4) No fees will be created by the proposed rule amendments.
(5) The proposed rule amendments will not require new regulations.
(6) The proposed rule amendments have no effect on existing regulations.
(7) The proposed rule amendments have no effect on the number of individuals subject to the rule's applicability.
(8) The proposed rule amendments have no effect on this state's economy.
PART IV. COMMENTS
Comments on the proposed amended rule may be submitted to Texas Veterans Commission, Attention: General Counsel, P.O. Box 12277, Austin, Texas 78711; faxed to (512) 475-2395; or emailed to rulemaking@tvc.texas.gov. For comments submitted electronically, please include "Chapter 452 Rules" in the subject line. The commission must receive comments postmarked no later than 30 days from the date this proposal is published in the Texas Register.
PART V. STATUTORY AUTHORITY
The rule amendment is proposed under Texas Government Code §434.010, which authorizes the commission to establish rules it considers necessary for its administration, and Texas Government Code §434.0101, granting the commission authority to establish rules governing the agency's advisory committees.
No other statutes, rules, or regulations are affected.
§452.2.Advisory Committees.
(a) - (c) (No change.)
(d) Veterans County Service Officer Advisory Committee.
(1) Purpose. The purpose of the Veterans County Service Officer Advisory Committee is to develop recommendations to improve the support and training of Veterans County Service Officers and to increase coordination between Veterans County Service Officers and the Texas Veterans Commission related to the statewide network of services being provided to veterans.
(2) Committee member qualifications. The [majority
of] members shall be current Veteran [, former,
or retired Veterans] County Service Officers, but may also include
representatives from veterans' organizations or other individuals
with the experience and knowledge to assist the committee with achievement
of its purpose.
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 August 12, 2022.
TRD-202203023
Cory Scanlon
General Counsel
Texas Veterans Commission
Earliest possible date of adoption: September 25, 2022
For further information, please call: (512) 463-3288
The Texas Veterans Commission (commission) proposes amendment to Chapter 452, §452.4, Alternative Dispute Resolution.
PART I. PURPOSE AND BACKGROUND
The proposed amendment is made to eliminate language that is no longer applicable.
PART II. EXPLANATION OF SECTIONS
Section 452.4 Alternative Dispute Resolution.
Subsection (b) deletes the title "Chief Administrative Officer" and adds "Director of Resource Management."
PART III. IMPACT STATEMENTS
FISCAL NOTE
Michelle Nall, Chief Financial Officer of the Texas Veterans Commission, has determined for each year of the first five years the proposed rule amendment will be in effect, there will not be an increase in expenditures or revenue for state and local government as a result of administering the proposed rule.
COSTS TO REGULATED PERSONS
Ms. Nall, Chief Financial Officer, has also determined there will not be anticipated economic costs to persons required to comply with the proposed rule.
LOCAL EMPLOYMENT IMPACT
Anna Baker, Director, Veterans Employment Services of the Texas Veterans Commission, has determined that there will not be a significant impact upon employment conditions in the state as a result of the proposed rule.
SMALL BUSINESS, MICRO BUSINESS AND RURAL COMMUNITIES IMPACT
Megan Tamez, Director of the Veterans Entrepreneur Program of the Texas Veterans Commission, has determined that the proposed rule will not have an adverse economic effect on small businesses, micro businesses or rural communities as defined in Texas Government Code §2006.001. As a result, an Economic Impact Statement and Regulatory Flexibility Analysis is not required.
PUBLIC BENEFIT
Shawn Deabay, Deputy Executive Director of the Texas Veterans Commission, has determined that for each year of the first five years the proposed rule are in effect, the public benefit anticipated as a result of administering the amended rule will reduce the need for formal disputes and settle disputes at the lowest level possible.
GOVERNMENT GROWTH IMPACT STATEMENT
Mr. Deabay has also determined that for each year of the first five years that the proposed rule amendments are in effect, the following statements will apply:
(1) The proposed rule amendments will not create or eliminate a government program.
(2) Implementation of the proposed rule amendments will not require creation of new employee positions, or elimination of existing employee positions.
(3) Implementation of the proposed rule amendments will not require an increase or decrease in future legislative appropriations to the agency.
(4) No fees will be created by the proposed rule amendments.
(5) The proposed rule amendments will not require new regulations.
(6) The proposed rule amendments have no effect on existing regulations.
(7) The proposed rule amendments have no effect on the number of individuals subject to the rule's applicability.
(8) The proposed rule amendments have no effect on this state's economy.
PART IV. COMMENTS
Comments on the proposed amended rule may be submitted to Texas Veterans Commission, Attention: General Counsel, P.O. Box 12277, Austin, Texas 78711; faxed to (512) 475-2395; or emailed to rulemaking@tvc.texas.gov. For comments submitted electronically, please include "Chapter 452 Rules" in the subject line. The commission must receive comments postmarked no later than 30 days from the date this proposal is published in the Texas Register.
PART V. STATUTORY AUTHORITY
The rule amendment is proposed under Texas Government Code §434.010 which authorizes the commission to establish rules it considers necessary for its administration; and Texas Government Code §434.0101, granting the commission authority to establish rules governing the agency's advisory committees.
No other statutes, rules, or regulations are affected.
§452.4.Alternative Dispute Resolution.
(a) (No change.)
(b) The commission's Director of Resource Management [Chief Administrative Officer] or designee shall be the commission's
dispute resolution coordinator (DRC). The DRC shall perform the following
functions, as required:
(1) coordinate the implementation of the policy set out in subsection (a) of this section;
(2) serve as a resource for any staff training or education needed to implement the ADR procedures; and
(3) collect data to evaluate the effectiveness of ADR procedures implemented by the commission.
(c) - (f) (No change.)
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 August 12, 2022.
TRD-202203024
Cory Scanlon
General Counsel
Texas Veterans Commission
Earliest possible date of adoption: September 25, 2022
For further information, please call: (512) 463-3288
CHAPTER 800. GENERAL ADMINISTRATION
SUBCHAPTER M. TAX REFUND FOR WAGES PAID TO EMPLOYEE RECEIVING FINANCIAL ASSISTANCE
The Texas Workforce Commission (TWC) proposes the following new subchapter to Chapter 800, relating to General Administration:
Subchapter M. Tax Refund for Wages Paid to Employee Receiving Financial Assistance, §§800.550 - 800.557
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The purpose of proposed new Chapter 800, Subchapter M is to establish administrative rules to clarify the requirements and eligibility determination applicable under Texas Labor Code, Chapter 301, Subchapter H, relating to Tax Refund for Wages Paid to Employee Receiving Financial Assistance.
Senate Bill (SB) 82, enacted by the 73rd Texas Legislature, Regular Session (1993), amended Texas Human Resources Code, Chapter 31 by adding Subchapter D, Tax Refund for Wages Paid to Employee Receiving Financial Assistance (Tax Refund Program). The Tax Refund Program required the Texas Department of Human Services (DHS) to provide tax vouchers to persons upon application and certification of eligibility.
In 1997, the 75th Texas Legislature enacted SB 1113, which transferred the Tax Refund Program from the Texas Human Resources Code, Chapter 31, Subchapter D to Texas Labor Code, Chapter 301, Subchapter H, effectively moving the application eligibility and certification procedures from DHS to TWC. SB 1113 also implemented new rulemaking authority, allowing TWC to "adopt rules as necessary to carry out its powers and duties under this subchapter" and required DHS to provide information to TWC that is required to determine eligibility for persons applying for the Tax Refund.
The Comptroller of Public Accounts' rule under 34 Texas Administrative Code (TAC) §3.4, implemented in 1995, was not amended when the program transitioned from DHS to TWC. TWC did not establish rule to operate the Tax Refund Program. The application and eligibility certification procedures related to the Tax Refund Program have been operated by TWC staff since 1997 through publicly available information and a tax refund application form, currently maintained on TWC's Work Opportunity Tax Credit Program Overview webpage.
The Comptroller's office is reviewing possible amendments to 34 TAC §3.4 that would eliminate reference to eligibility determinations in its rule. TWC determined that the establishment of an administrative rule to clarify the requirements and eligibility determination applicable under Texas Labor Code, §301.107 is now needed.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
SUBCHAPTER M. TAX REFUND FOR WAGES PAID TO EMPLOYEE RECEIVING FINANCIAL ASSISTANCE
TWC proposes new Subchapter M, as follows:
§800.550. Purpose
New §800.550 states the purpose and goal for Chapter 800, Subchapter M.
§800.551. Definitions
New §800.551 defines terms used in Chapter 800, Subchapter M.
§800.552. Tax Refund Voucher
New §800.552(a) states that TWC shall issue tax refund vouchers in the amounts allowed by and subject to restrictions in Chapter 800, Subchapter M. New §800.552(b) states that a person issued a tax refund voucher may apply for the tax refund.
§800.553. Amount of Refund: Limitation
New §800.553(a) states the maximum amount of the potential tax refund allowed per employee that is certified under new §800.554 and §800.555. New §800.553(b) states that the refund amount cannot exceed the amount of net tax paid by the person to the State of Texas after any other applicable tax credits for the calendar year.
§800.554. Eligibility
New §800.554 describes the eligibility required for the tax refund. New §800.554(1) describes the eligibility requirements regarding wages incurred by a person for service of an employee. New §800.554(2) refers to the certification requirements in new §800.555, and new §800.554(3) describes the options for a person to provide and pay a part of the cost for health care coverage.
§800.555. Certification
New §800.555 describes the time parameters for an employee to be receiving financial or medical assistance prior to employment.
§800.556. Application for Refund: Issuance
New §800.556 identifies the time period, on or after January 1 and before April 1, for persons to submit applications for the previous calendar year. New §800.556(b) gives TWC the authority to promulgate the application for the tax refund voucher. New §800.556(c) limits the use of the tax refund voucher to the year for which the voucher is issued.
§800.557. Limitations.
New §800.557(a) reinforces the requirement of health care coverage for the employee under new §800.554(3). New §800.557(b) identifies rules of conveyance, assignment, or transfer of a refund under Chapter 800, Subchapter M.
PART III. IMPACT STATEMENTS
Chris Nelson, Chief Financial Officer, 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 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 United States Constitution or the Texas Constitution, Article I, §17 or §19, 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 Analysis 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 establish administrative rules to clarify the requirements and eligibility determination applicable under Texas Labor Code, Chapter 301, Subchapter H.
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 United States 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 determined that during the first five years the rules will be in effect, they will not:
--create or eliminate a government program;
--require the creation or elimination of employee positions;
--require an increase or decrease in future legislative appropriations to TWC;
--require an increase or decrease in fees paid to TWC;
--create a new regulation;
--expand, limit, or eliminate an existing regulation;
--change the number of individuals subject to the rules; and
--positively or adversely affect the state's economy.
Economic Impact Statement and Regulatory Flexibility Analysis
TWC 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, 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, 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 provide a tax refund incentive for persons to hire employees on Medicaid or receiving Temporary Assistance for Needy Families benefits.
TWC hereby certifies that the proposal has been reviewed by legal counsel and found to be within TWC's legal authority to adopt.
PART IV. COORDINATION ACTIVITIES
In the development of these rules for publication and public comment, TWC sought the involvement of Texas' 28 Local Workforce Development Boards (Boards). TWC provided the policy concept for the new rules to the Boards for consideration and review on April 19, 2022. TWC also conducted a conference call with Board executive directors and Board staff on April 22, 2022, to discuss the policy concept. During the rulemaking process, TWC considered all information gathered in order to develop rules that provide clear and concise direction to all parties involved.
PART V. PUBLIC COMMENTS
Comments on the proposed rules may be submitted to TWCPolicyComments@twc.texas.gov and must be received no later than September 26, 2022.
PART VI. STATUTORY AUTHORITY
The rules are proposed under Texas Labor Code, §301.107(a), which stipulates that TWC shall adopt rules as necessary to carry out its powers and duties under Chapter 301, Subchapter H.
The proposed rules affect Title 4, Texas Labor Code, particularly Chapter 301.
§800.550.Purpose.
The purpose of this subchapter is to establish rules for the Tax Refund for Wages Paid to Employee Receiving Financial Assistance in accordance with Texas Labor Code, Chapter 301, Subchapter H.
§800.551.Definitions.
The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Comptroller--The comptroller of public accounts of the State of Texas, as defined under Texas Government Code, Chapter 403.
(2) Person--A "person" is:
(A) a business entity located in this state;
(B) a governmental subdivision located in this state; or
(C) a public or private organization located in this state that is not a state agency.
§800.552.Tax Refund Voucher.
(a) The Agency shall issue a tax refund voucher in the amount allowed by this subchapter and subject to the restrictions imposed by this subchapter to a person that meets the eligibility requirements under this subchapter.
(b) A person issued a tax refund voucher may, subject to the provisions of this subchapter, apply to the comptroller's office for a refund of taxes in accordance with Texas Labor Code, §301.106.
§800.553.Amount of Refund: Limitation.
(a) The amount of the refund allowed under this subchapter shall be equal to 20 percent of the total wages, up to a maximum of $10,000 in wages for each employee, paid or incurred by a person for services rendered by an employee of the person during the period beginning with the date the employee begins work for the person and ending on the first anniversary of that date.
(b) The refund claimed for a calendar year shall not exceed the amount of the net tax paid by the person to the State of Texas, after any other applicable tax credits in that calendar year.
§800.554.Eligibility.
A person is eligible for the refund for wages paid or incurred by the person, during each calendar year for which the refund is claimed, only in the following circumstances:
(1) The wages paid or incurred by the person are for services of an employee who is a:
(A) resident of this state; and
(B) recipient of:
(i) financial assistance or services in accordance with Texas Human Resources Code, Chapter 31; or
(ii) medical assistance in accordance with Texas Human Resources Code, Chapter 32;
(2) The person satisfies the certification requirements under §800.555 of this subchapter; and
(3) The person, under an arrangement under Texas Human Resources Code, §32.0422, provides and pays for the benefit of the employee a part of the cost of coverage under:
(A) a health plan provided by a health maintenance organization established under Texas Insurance Code, Chapter 843;
(B) a health benefit plan approved by the commissioner of insurance;
(C) a self-funded or self-insured employee welfare benefit plan that provides health benefits and is established in accordance with the Employee Retirement Income Security Act of 1974 (29 United States Code §§1001 et seq.); or
(D) a medical savings account or other health reimbursement arrangement authorized by law.
§800.555.Certification.
A person is not eligible for the refund of wages paid or incurred by the person unless the person has received a written certification from the Agency that the person's employee is a recipient of:
(1) financial assistance within the six months prior to his or her start date; or
(2) medical assistance within the six months prior to his or her start date.
§800.556.Application for Refund: Issuance.
(a) A person may apply for a tax refund voucher for wages paid an employee in a calendar year only on or after January 1 and before April 1 of the following calendar year.
(b) A person must submit an application for the tax refund voucher on a form promulgated by the Agency.
(c) On issuance of the tax refund voucher to the person by the Agency, the person may apply the voucher against a tax paid by the person to this state only for the calendar year for which the voucher is issued.
§800.557.Limitations.
(a) A person may only apply for a tax refund related to wages paid while the person's employee was covered by health care coverage in accordance with §800.554(3) of this subchapter and the cost of coverage was paid in full or in part by the person.
(b) A person may convey, assign, or transfer a refund under this subchapter to another person only if:
(1) the employing unit is sold, conveyed, assigned, or transferred, in the same transaction or in a related transaction, to the person to whom the refund is conveyed assigned, or transferred; or
(2) the person to whom the refund is conveyed, assigned, or transferred:
(A) is subject to a tax administered by the comptroller and deposited to the credit of the state General Revenue Fund without dedication; and
(B) directly or indirectly owns, controls, or otherwise directs, in whole or in part, an interest in the person from whom the refund is conveyed, assigned, or transferred.
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 August 9, 2022.
TRD-202202950
Les Trobman
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: September 25, 2022
For further information, please call: (512) 689-9855
The Texas Workforce Commission (TWC) proposes amendments to the following sections of Chapter 819, relating to the Texas Workforce Commission Civil Rights Division:
Subchapter B. Equal Employment Opportunity Provisions, §819.11 and §819.12
Subchapter D. Equal Employment Opportunity Complaints and Appeals Process, §819.41
Subchapter E. Equal Employment Opportunity Deferrals, §819.73
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The purpose of the proposed amendments to Chapter 819 is to implement House Bill (HB) 21 and Senate Bill (SB) 45, 87th Texas Legislature, Regular Session (2021), relating to sexual harassment complaints filed against employers. HB 21 expanded the statute of limitations for filing sexual harassment discrimination complaints and SB 45 broadened the definition of "Employer" as it relates to the filing of a sexual harassment discrimination complaint.
HB 21 amended Texas Labor Code, §21.202 to include a deadline for filing complaints alleging sexual harassment. Under new Texas Labor Code, §21.202(a-1), complaints must be filed with TWC within 300 days after the alleged sexual harassment occurred.
SB 45 amended Texas Labor Code, Chapter 21 by adding Subchapter C-1, §21.141 and §21.142, relating to Sexual Harassment. New Texas Labor Code, §21.141 defines "Employer" and "Sexual harassment" and new Texas Labor Code, §21.142 includes sexual harassment as an unlawful employment practice.
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 conducted a rule review of Chapter 819 and any changes are described in Part II of this preamble.
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.)
CHAPTER 819. TEXAS WORKFORCE COMMISSION CIVIL RIGHTS DIVISION
TWC proposes the following amendment to the title of Chapter 819:
The Chapter 819 title is amended to remove "Texas Workforce Commission" for consistency with the titles of other chapters.
SUBCHAPTER B. EQUAL EMPLOYMENT OPPORTUNITY PROVISIONS
TWC proposes the following amendments to Subchapter B:
§819.11. Definitions
Section 819.11 is amended to expand the definition of "Employer" to include provisions relating to sexual harassment, modify the definition of "Complaint" to include the statute of limitations to file a complaint for sexual harassment to within 300 days of the alleged unlawful employment practice, and add the definition of "Sexual Harassment."
§819.12. Unlawful Employment Practices
Section 819.12 is amended to add new subsection (k) to include sexual harassment as an unlawful employment practice.
SUBCHAPTER D. EQUAL EMPLOYMENT OPPORTUNITY COMPLAINTS AND APPEALS PROCESS
TWC proposes the following amendments to Subchapter D:
§819.41. Filing a Complaint
Section 819.41(e) is amended to include that a complaint alleging sexual harassment must be filed within 300 days of the alleged unlawful employment practice. Section 819.41(h) is amended to include if a perfected complaint alleging sexual harassment is not received within 300 days of the alleged unlawful employment practice, the respondent shall be notified that a complaint has been filed and the process of perfecting the complaint is in progress.
SUBCHAPTER E. EQUAL EMPLOYMENT OPPORTUNITY DEFERRALS
TWC proposes the following amendments to Subchapter F:
§819.73. Deferral to Local Commission
Section 819.73(b)(2) is amended to expand jurisdiction over sexual harassment complaint allegations.
PART III. IMPACT STATEMENTS
Chris Nelson, Chief Financial Officer, 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 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 United States Constitution or the Texas Constitution, Article I, §17 or §19, 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 Analysis 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 implement HB 21 and SB 45, relating to sexual harassment complaints filed against employers.
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 United States 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 determined that during the first five years the rules will be in effect, they will not:
--create or eliminate a government program;
--require the creation or elimination of employee positions;
--require an increase or decrease in future legislative appropriations to TWC;
--require an increase or decrease in fees paid to TWC;
--create a new regulation;
--expand, limit, or eliminate an existing regulation;
--change the number of individuals subject to the rules; and
--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, determined that there is not a significant negative impact upon employment conditions in the state as a result of the rules.
Bryan Snoddy, Director, Civil Rights 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 implement HB 21, which expanded the statute of limitations for filing sexual harassment discrimination complaints, and SB 45, which broadened the definition of "Employer" as it relates to filing a sexual harassment discrimination complaint.
TWC hereby certifies that the proposal has been reviewed by legal counsel and found to be within TWC's legal authority to adopt.
PART IV. COORDINATION ACTIVITIES
In the development of these rules for publication and public comment, TWC sought the involvement of Texas' 28 Local Workforce Development Boards (Boards). TWC provided the policy concept regarding these rule amendments to the Boards for consideration and review on February 11, 2022, and during the rulemaking process, TWC considered all information gathered in order to develop rules that provide clear and concise direction to all parties involved.
PART IV. PUBLIC COMMENTS
Comments on the proposed rules may be submitted to TWCPolicyComments@twc.texas.gov and must be received no later than September 26, 2022.
SUBCHAPTER B. EQUAL EMPLOYMENT OPPORTUNITY PROVISIONS
STATUTORY AUTHORITY
The rules are proposed under 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 rules implement HB 21 and SB 45, relating to sexual harassment complaints filed against employers.
§819.11.Definitions.
The following words and terms, when used in Subchapter B, Equal Employment Opportunity Provisions; Subchapter C, Equal Employment Opportunity Reports, Training, and Reviews; Subchapter D, Equal Employment Opportunity Complaints and Appeals Process; Subchapter E, Equal Employment Opportunity Deferrals; and Subchapter F, Equal Employment Opportunity Records and Recordkeeping shall have the following meanings, unless the context clearly indicates otherwise.
(1) Bona fide occupational qualification--A qualification:
(A) that is reasonably related to the satisfactory performance of the duties of a job; and
(B) for which there is a factual basis for believing that no members of the excluded group would be able to satisfactorily perform the duties of the job with safety and efficiency.
(2) Civil Rights Act--The Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 and the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1976, as amended; the Rehabilitation Act of 1973, as amended; the Americans with Disabilities Act of 1990, as amended; and Texas Labor Code, Chapter 21, regarding Employment Discrimination.
(3) Complaint--A written statement made under oath stating that an unlawful employment practice has been committed, setting forth the facts on which the complaint is based, and received within 180 days or, for a complaint alleging sexual harassment, within 300 days of the alleged unlawful employment practice.
(4) Conciliation--The settlement of a dispute by mutual written agreement in order to avoid litigation where a determination has been made that there is reasonable cause to believe an unlawful employment practice has occurred.
(5) Disability--A mental or physical impairment that substantially limits at least one major life activity of an individual, a record of such mental or physical impairment, or being regarded as having such an impairment as set forth in §3(2) of the Americans with Disabilities Act of 1990, as amended, and Texas Labor Code, §21.002(6).
(6) Employer--A person who is engaged in an industry affecting commerce and who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year and any agent of that person. The term includes an individual elected to public office in Texas or a political subdivision of Texas, or a political subdivision and any state agency or instrumentality, including public institutions of higher education, regardless of the number of individuals employed. The term excludes a franchisor from being considered an employer of a franchisee or a franchisee's employees. The term also exempts the Texas Military Forces from being an employer, as claims of discrimination against the Texas Military Forces by service members on state active duty shall be processed in accordance with military regulations and procedures as authorized by Texas Government Code, §437.212. Exclusively regarding allegations of sexual harassment, the term "Employer" includes a person who employs one or more employees or acts directly in the interests of an employer in relation to an employee.
(7) Local commission--Created by one or more political
subdivisions acting jointly, pursuant to Texas Labor Code, §21.152,
and recognized as a Fair Employment Practices Agency by EEOC pursuant
to Title VII of the [U.S.] Civil Rights Act of
1964, [Title VII,] §706, as amended by the Equal
Employment Opportunity Act of 1972, the Civil Rights Act of 1991,
and the Americans With Disabilities Act of 1990, as amended.
(8) Mediation--An alternative dispute resolution process to resolve a dispute by mutual written agreement among the complainant, respondent, and CRD.
(9) Perfected complaint--An employment discrimination complaint that CRD has determined meets all of the requirements of Texas Labor Code, Chapter 21, and for which CRD will initiate an investigation.
(10) Sexual Harassment--An unwelcome sexual advance, a request for a sexual favor, or any other verbal or physical conduct of a sexual nature if:
(A) submission to the advance, request, or conduct is made a term or condition of an individual's employment either explicitly or implicitly;
(B) submission to or rejection of the advance, request, or conduct by an individual is used as the basis for a decision affecting the individual's employment;
(C) the advance, request, or conduct has the purpose or effect of unreasonably interfering with an individual's work performance; or
(D) the advance, request, or conduct has the purpose or effect of creating an intimidating, hostile, or offensive working environment.
§819.12.Unlawful Employment Practices.
(a) Discrimination by Employer. An employer commits an unlawful employment practice if based on race, color, disability, religion, sex, national origin, or age, the employer:
(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or
(2) limits, segregates, or classifies an employee or applicant for employment in a manner that deprives or tends to deprive an individual of an employment opportunity or adversely affects in any other manner the status of an employee.
(b) Discrimination by Employment Agency. An employment agency commits an unlawful employment practice if based on race, color, disability, religion, sex, national origin, or age, it:
(1) fails or refuses to refer for employment or discriminates in any other manner against an individual; or
(2) classifies or refers an individual for employment on that basis.
(c) Discrimination by Labor Organization. A labor organization commits an unlawful employment practice if based on race, color, disability, religion, sex, national origin, or age, it:
(1) excludes or expels from membership or discriminates in any other manner against an individual; or
(2) limits, segregates, or classifies a member or an applicant for membership, or classifies or fails or refuses to refer for employment an individual in a manner that:
(A) deprives or tends to deprive an individual of any employment opportunity;
(B) limits an employment opportunity or adversely affects in any other manner the status of an employee or of an applicant for employment; or
(C) causes or attempts to cause an employer to violate this subchapter.
(d) Admission or Participation in Training Program. An employer, labor organization, or joint labor-management committee controlling an apprenticeship, on-the-job training, or other training or retraining program commits an unlawful employment practice if based on race, color, disability, religion, sex, national origin, or age, it discriminates against an individual in admission to or participation in the program, unless a training or retraining opportunity or program is provided under an affirmative action plan approved by federal or state law, rule, or court order. The prohibition against discrimination based on age applies only to individuals who are at least 40 years of age.
(e) Retaliation. An employer, employment agency, or
labor organization[,] commits an unlawful employment practice
based on race, color, disability, religion, sex, national origin,
or age if the employer, employment agency, or labor organization retaliates
or discriminates against an individual who:
(1) opposes a discriminatory practice;
(2) makes or files a charge;
(3) files a complaint; or
(4) testifies, assists, or participates in any manner in an investigation, proceeding, or hearing.
(f) Aiding or Abetting Discrimination. An employer, employment agency, or labor organization commits an unlawful employment practice if it aids, abets, incites, or coerces an individual to engage in an unlawful discriminatory practice based on race, color, disability, religion, sex, national origin, or age.
(g) Interference with the Agency or CRD. An employer, employment agency, or labor organization commits an unlawful employment practice if it willfully interferes with the performance of a duty or the exercise of a power by CRD or by the Agency in relation to CRD.
(h) Prevention of Compliance. An employer, employment agency, or labor organization commits an unlawful employment practice if it willfully obstructs or prevents an individual from complying with Texas Labor Code, Chapter 21, or a rule adopted or order issued under Texas Labor Code, Chapter 21.
(i) Discriminatory Notice or Advertisement. An employer, employment agency, labor organization, or joint labor-management committee controlling an apprenticeship, on-the-job training, or other training or retraining program commits an unlawful employment practice if it prints or publishes or causes to be printed or published a notice or advertisement relating to employment that:
(1) indicates a preference, limitation, specification, or discrimination based on race, color, disability, religion, sex, national origin, or age; and
(2) concerns an employee's status, employment, or admission to or membership or participation in a labor organization or training or retraining program.
(j) Bona Fide Occupational Qualification. A bona fide occupational qualification is an affirmative defense to discrimination.
(k) Sexual Harassment. An employer commits an unlawful employment practice if sexual harassment of an employee occurs and the employer or the employer's agents or supervisors:
(1) knows or should have known that the conduct constituting sexual harassment was occurring; and
(2) fails to take immediate and appropriate corrective action.
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 August 9, 2022.
TRD-202202951
Les Trobman
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: September 25, 2022
For further information, please call: (512) 689-9855
The rules are proposed under 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 rules implement HB 21 and SB 45, relating to sexual harassment complaints filed against employers.
§819.41.Filing a Complaint.
(a) A person may telephone, write, visit, e-mail, fax, or otherwise contact CRD or a local commission office recognized by EEOC as a Fair Employment Practices Agency to obtain information on filing a complaint with CRD.
(b) At the complainant's request, CRD:
(1) shall confer with the complainant about the facts and circumstances that may constitute the alleged unlawful employment practice;
(2) shall assist the complainant in perfecting the complaint if the facts and circumstances appear to constitute an alleged unlawful employment practice; or
(3) may advise the complainant if the facts and circumstances presented to CRD do not appear to constitute an unlawful employment practice.
(c) The complaint shall be filed in writing and either signed under oath or subscribed by the person making the declaration as true under penalty of perjury and in substantially the form prescribed by Texas Civil Practice and Remedies Code, Chapter 132, or its successor statute. It may be filed with CRD by mail, electronic communication, fax, or in person with:
(1) the CRD office on a CRD-provided form;
(2) an EEOC office; or
(3) a local commission office recognized by EEOC as a Fair Employment Practices Agency.
(d) The complaint shall set forth the following information:
(1) Harm experienced by the complainant as a result of the alleged unlawful employment practice;
(2) Explanation, if any, given by the employer to the complainant for the alleged unlawful employment practice;
(3) A declaration of unlawful discrimination under federal or state law;
(4) Facts upon which the complaint is based, including the date, place, and circumstances of the alleged unlawful employment practice; and
(5) Sufficient information to enable CRD to identify the employer, e.g., employer ID, business address, and business phone.
(e) A complaint shall be filed within 180 days or, for a complaint alleging sexual harassment, within 300 days, after the date on which the alleged unlawful employment practice occurred.
(f) A complaint may be withdrawn by a complainant only with the consent of the CRD director.
(g) A perfected complaint may be amended by the complainant to cure technical defects or omissions, or to clarify and amplify allegations made therein. Such amendment or amendments alleging additional acts that constitute unlawful employment practices related to or growing out of the subject matter of the original complaint shall relate back to the date the complaint was first filed. CRD shall provide a copy of the perfected complaint to the respondent. An amended perfected complaint shall be subject to the procedures set forth in applicable law.
(h) A respondent shall be mailed a copy of the perfected complaint within 10 days after CRD receives the perfected complaint. If CRD receives a complaint that is not perfected within 180 days or, for a complaint alleging sexual harassment, within 300 days, of the alleged unlawful employment practice, CRD shall notify the respondent that a complaint has been filed and the process of perfecting the complaint is in progress.
(i) The complainant and respondent shall be advised upon request by CRD of the status of their perfected complaint, unless doing so would jeopardize an undercover investigation by another state, federal, or local government.
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 August 9, 2022.
TRD-202202952
Les Trobman
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: September 25, 2022
For further information, please call: (512) 689-9855
The rule is proposed under 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 implements HB 21 and SB 45, relating to sexual harassment complaints filed against employers.
§819.73.Deferral to Local Commission.
(a) Texas Labor Code, §21.155 grants to a local commission the exclusive right to take appropriate action within the scope of its power and jurisdiction to process a complaint deferred by CRD pursuant to the requirements of Texas Labor Code, §21.155, and this chapter.
(b) CRD shall not assume jurisdiction over a complaint deferred to a local commission, pursuant to Texas Labor Code, §21.155, except:
(1) where the local commission defers a complaint under its jurisdiction to CRD;
(2) where the complaint is received by CRD within 180 days of the alleged violation or, for a complaint alleging sexual harassment, within 300 days of the alleged unlawful employment practice, but beyond the period of limitation of the appropriate local commission; and
(3) where the local commission has not acted on the complaint pursuant to the requirements of Texas Labor Code, §21.155(c), and this chapter.
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 August 9, 2022.
TRD-202202953
Les Trobman
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: September 25, 2022
For further information, please call: (512) 689-9855