Current through Reg. 49, No. 12; March 22, 2024
(a) Policy. It is the department's policy to
encourage the use of negotiated rulemaking and alternative dispute resolution
procedures in appropriate situations.
(b) Negotiated Rulemaking. When the
department finds that a rule to be proposed is likely to be complex,
controversial, or affect disparate groups, the department may propose to engage
in negotiated rulemaking in accordance with Government Code, Chapter 2008.
(1) When negotiated rulemaking is considered,
the department's General Counsel, or designee, shall be the department's
negotiated rulemaking convener.
(A) The
convener shall assist in identifying persons who are likely to be affected by a
proposed rule, including those who oppose issuance of a rule. The convener
shall discuss with those persons or their representatives as provided in
Government Code §
RSA
2008.052(c).
(B) The convener shall then recommend to the
department whether negotiated rulemaking is a feasible method to develop the
proposed rule and shall report to the agency on the relevant considerations,
including those listed in Government Code §
RSA
2008.052(d).
(2) Upon the convener's
recommendation to proceed, the department may initiate negotiated rulemaking
according to the provisions of Government Code, Chapter 2008 and Government
Code §
RSA
2054.121(c)
(c) Alternative Dispute
Resolution. The department encourages the fair and expeditious resolution of
disputes through alternative dispute resolution (ADR) procedures.
(1) ADR procedures include any procedure or
combination of procedures described by Civil Practice and Remedies Code,
Chapter 154. ADR procedures are intended to supplement and not limit other
dispute resolution procedures available for use by the department.
(2) Any ADR procedure used to resolve
disputes with the department shall conform with Government Code, Chapter 2009,
and, to the extent possible, the model guidelines for the use of ADR issued by
the State Office of Administrative Hearings (SOAH).
(3) Upon receipt of notice of a dispute, the
department's Executive Director, in consultation with the department's General
Counsel, shall determine whether use of an ADR procedure is an appropriate
method for resolving the dispute.
(4) If an ADR procedure is determined to be
appropriate, the department's Executive Director shall recommend to the
claimant the use of ADR to resolve the dispute. The department's General
Counsel will collaborate with the claimant to select an appropriate procedure
for dispute resolution and implement the agreed upon procedure consistent with
SOAH's model guidelines.
(5) ADR
for Breach of Contract Claims. Resolution of breach of certain contract claims
brought by a contractor against the department shall conform to the
requirements of Government Code, Chapter 2260. The department adopts by
reference the Office of the Attorney General's rules regarding the negotiation
and mediation of certain contract disputes (1 Texas Administrative Code Part 3,
Chapter 68).
(6) The requirements
of Government Code, Chapter 2260, and the Office of the Attorney General's
model rules are required prerequisites to a contractor filing suit in
accordance with Civil Practices and Remedies Code, Chapter 107.
(d) The department's General
Counsel, or designee, shall coordinate the implementation of the policy set out
in subsection (a) of this section in accordance with state law and provide
necessary training. The department's General Counsel, or designee, is
designated as the coordinator to implement the department's policy under this
rule, provide necessary training, and collect data concerning the effectiveness
of the implemented procedures.