(a) Right to appeal. If the person responsible for payment has provided complete financial information and the person disagrees with any fee(s) assessed by the department, then the person is entitled to appeal such fee(s). (b) Obtaining forms to initiate an appeal. In order to appeal a fee(s), the person responsible for payment must notify the reimbursement manager at the facility providing SMT to the client of his or her intent to appeal the fee(s). Upon such notification, the reimbursement manager shall ensure that the person has provided complete financial information before sending the person a copy of this subchapter and a Request for Appeal form (referenced as Exhibit E in §417.108(5) of this title (relating to Exhibits)). (c) Initiating the appeal. The person responsible for payment initiates an appeal by completing, signing, and sending the Request for Appeal form (referenced in subsection (b) of this section or §417.107(a)(4) of this title (relating to Filing Notice of Lien)) to: Hearings Office, TDMHMR, P.O. Box 12668, Austin, Texas 78711-2668. The Hearings Office staff shall contact the facility reimbursement manager to confirm that the person responsible for payment has provided complete financial information before scheduling a hearing. (d) Representation.   (1) The appellant may represent himself or herself or use legal counsel, a relative, a friend, or other spokesperson.   (2) The department is represented by a department attorney. (e) Type of hearing.   (1) The appellant may choose to:     (A) appear by telephone conference or have his or her representative appear by telephone conference at the hearing;     (B) appear in person or have his or her representative appear in person at the hearing in Austin; or     (C) have a document hearing in which the hearing officer makes a decision based solely upon documentation filed by the parties with neither party appearing.   (2) If the appellant chooses to appear by telephone or in person at the hearing, then the designated department attorney may choose to:     (A) appear by telephone conference at the hearing; or     (B) appear in person at the hearing in Austin. (f) Scheduling the hearing. The hearing officer shall schedule the hearing to be held not later than the 40th day after the date the Request for Appeal form is received by the hearings office. The hearing officer shall consider any request for reasonable accommodations related to a disability of the appellant or the appellant's representative.   (1) If the appellant chooses to appear, then the hearing officer shall schedule a date, time, and location (and phone number if a party will be appearing by telephone conference) for the hearing. At least 20 calendar days before the hearing, the hearing officer shall notify the parties, in accordance with subsection (g) of this section, of the scheduled date, time, and location (and phone number) of the hearing.   (2) If the appellant chooses to have a document hearing, then at least 20 calendar days before the document hearing, the hearing officer shall notify the parties, in accordance with subsection (g) of this section, of the date that all documentation must be filed with the hearings office and copies submitted to the other party or the other party's representative. (g) Notification of parties.   (1) The appellant is notified by certified mail.   (2) The designated department attorney is notified by intra-agency mail, fax, or electronic mail. (h) Privileges. No party is required to disclose communications between an attorney and the attorney's client, an accountant and the accountant's client, a husband and wife, a clergy-person and a person seeking spiritual advice, or the name of an informant, or other information protected from being divulged by substantive federal or state law. (i) Ex parte communication. With the exception of communications regarding procedural matters, the hearing officer may not communicate with a party, directly or indirectly, on any issue of fact or law, unless both parties are present or the communication is in writing and a copy is delivered to both parties. (j) Withdrawing. The appellant may withdraw the appeal or the department may withdraw the fee(s) being appealed at any time prior to the hearing. Upon withdrawal of either party, no hearing is held. The hearing officer will issue an order of dismissal and notify the parties of such dismissal in accordance with subsection (g) of this section. (k) Settlement. At any time before the hearing, parties may enter into a settlement disposing of the contested issue(s). A settlement agreement must be in writing, signed by the parties or their representatives, and filed with the hearings office. Upon receipt of the settlement agreement, the hearing officer will issue an order of dismissal and notify the parties of such dismissal in accordance with subsection (g) of this section. (l) Filing documents.   (1) Hearing at which the parties will appear in person or by telephone.     (A) If a party intends to introduce documents at the hearing, then the party shall file such documents with the hearings office and submit a copy of the documents to the other party or the other party's representative at least three days before the hearing. Failure to submit copies of documents to the other party will result in a continuance if requested by the party who did not receive the documents.     (B) At the hearing, the hearing officer may request either or both parties to file additional documents for consideration in making a decision. The hearing officer shall indicate in writing the date by which the additional documents must be received by the hearings office.   (2) Document hearing. If a party intends for the hearing officer to consider his or her documents at a document hearing, then the party shall file such documents with the hearings office and submit a copy of the documents to the other party or the other party's representative by the date identified by the hearing officer as described in subsection (f)(2) of this section. Failure to submit copies of documents to the other party will result in a continuance if requested by the party who did not receive the documents. (m) Continuance. Each party is entitled to one continuance. The hearing officer may grant additional continuances on the request of either party provided the party shows good cause for requesting the continuance. A request for a continuance may be written or oral, and may be made before or during a hearing. If a hearing is continued, the hearing officer shall schedule the hearing to be continued on a day that is not later than the 45th day after the hearing was originally scheduled. The hearing officer must notify the parties, in accordance with subsection (g) of this section, of the continued hearing date within five working days of granting a continuance. (n) Telephone conference.   (1) Telephone conference equipment used for a hearing must be capable of allowing the parties and the hearing officer to hear and speak to each other at all times during the hearing.   (2) If a party elected to appear by telephone, then on the date and time of the hearing, the hearing officer shall initiate telephone contact with the party using the telephone number provided by the party. (o) Failure to appear. If the appellant fails to appear at the hearing, the hearing officer shall adjourn the hearing. If the appellant notifies the hearing officer within three working days after the hearing date and provides evidence of good cause for failing to appear and requests a continuance, the hearing officer shall grant a continuance. If the hearing officer has not been notified by the fourth working day after the hearing date, then the hearing officer shall close the record and consider all of the documents previously filed by both parties and prepare a decision based on such previously filed documents. (p) Evidence.   (1) Documents. Documents filed as evidence with the hearings office are admissible without further proof or authentication.   (2) Testimony. All testimony offered at the hearing is admissible. (q) Procedural rights. Each party has the right to:   (1) establish all pertinent facts and circumstances;   (2) present an argument without undue interference;   (3) question or refute any evidence; and   (4) make an audio recording of the hearing proceedings. (r) Audio recording of hearing proceedings. If the hearing is not a document hearing, then the hearing officer shall make an audio tape recording of the hearing proceedings. The appellant may request and receive a copy of the audio tape at minimal charge. (s) Record. The record of the hearing closes when the hearing is adjourned or at the end of the business day on the date that all documents are required to be filed. The record consists of:   (1) all documents submitted to the hearings office, together with the ruling on admissibility made by the hearing officer; and   (2) the audio recording of the hearing proceedings made by the hearing officer (as required in subsection (r) of this section), if the hearing was not a document hearing. (t) Decision. Not later than the 10th day after the hearing record has closed, the hearing officer shall issue a decision. Hearing decisions must be based exclusively on evidence in the record. The decision shall be in writing, signed and dated by the hearing officer, and state:   (1) the names of the parties and their representatives (if any), and whether they appeared in person or by telephone, if the hearing was not a document hearing;   (2) the evidence in the record;   (3) findings of fact and conclusions of law, separately stated;   (4) whether the appealed fee(s) has been sustained, reduced, or increased; and   (5) the fee(s) amount. (u) Effective date. A decision issued under this section is effective on the date it is signed by the hearing officer. (v) Notice of decision. After the hearing officer signs the decision, the hearings office shall send a copy of the hearing officer's decision to the parties in accordance with subsection (g) of this section. (w) Finality. The decision of the hearing officer is final. For the purpose of correcting a clerical error, the hearing officer retains jurisdiction for 20 calendar days after the date the decision is signed.

Source Note: The provisions of this §7.106 adopted to be effective February 17, 2000, 25 TexReg 1109; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841