Interim Operating and Transition Plan

Interim Operating and Transition Plan

WHEREAS, public health conditions relating to COVID-19 have favorably improved throughout the state to allow indoor gatherings in public settings; and

WHEREAS, best practices for avoiding and addressing backlogs associated with the COVID-19 pandemic include the continued use of remote hearing technologies, and the use of hybrid hearings in which some participants appear in-person and others are permitted to appear remotely; and

WHEREAS, the State Office of Administrative Hearings (SOAH) will go live with a new Administrative Case Tracking System (ACTS) during the 4th quarter of state fiscal year 2022 that will significantly transform all of SOAH’s operations and case management processes by converting workflows to a modern cloud-based system that relies on an all-electronic administrative record; and

WHEREAS, the use of remote and hybrid hearings to conduct legal proceedings by SOAH and other courts has proven to offer an efficient, accessible, and cost-effective means of allowing parties, attorneys, witnesses, and others to participate in administrative hearings; and

WHEREAS, the regular and continued use of remote hearings for some dockets will be necessary to promote the scheduling of hearings at the earliest possible date, avoid delay in the resolution of cases, and minimize disruption caused by ACTS implementation;

NOW THEREFORE, the State Office of Administrative Hearings will implement the following Interim Operating and Transition Plan, effective as of April 1, 2022, and continuing until further notice:

I. General Office Operations

1. All SOAH employees are expected to adhere to this this Interim Operating and Transition Plan.

2. All SOAH offices will be open for business Monday to Friday, 8:00 a.m. to 5:00 p.m.

3. There are no restrictions on in-person staffing levels at SOAH offices. All employees are permitted by the Chief Administrative Law Judge to attend work at their regularly assigned SOAH office location during regular hours of operation, subject to the direction of SOAH management.

4. The Chief Clerk’s Office in SOAH’s Austin Headquarters Office will be staffed at all times during regular business hours, Monday through Friday, with essential staff necessary to process filings. Other employees at SOAH’s Austin Headquarters may be present in the office on a rotating basis depending on the business needs of the agency.

5. Field offices statewide will be staffed with sufficient personnel in the office during regular business hours to process mail, issue orders, and process filings each business day. Staff may be present in SOAH field offices on a rotating basis to be determined by the office Lead ALJ in coordination with the Deputy Chief ALJ for ALR and Field Operations.

6. When in the office, employees are expected to adhere to minimum standard health protocols regarding COVID-19 prevention, including use of safe hygiene practices and being respectful of other’s preferences regarding social distancing and the wearing of face coverings. Employees are expected to engage in self-screening prior to reporting to work and should not come into the office if they are experiencing any new or worsening COVID-19 symptoms.

7. Any agency staff who receive a confirmed COVID-19 diagnosis, or who has had known close contact with a person with a confirmed COVID-19 diagnosis, shall notify SOAH Human Resources at SOAH.HR@soah.texas.gov to ensure that the employee has the support they need, and to enable SOAH to take additional precautions that may be necessary to ensure the health and safety of its other employees and visitors.

8. Employees and visitors are not required to show documentation of their COVID-19 vaccination status.

9. SOAH staff who can perform the essential functions of their job remotely may be permitted to telework in accordance with SOAH's Remote Work Program Policy. Based upon the needs of the agency and the duties of particular positions, participation in telework may not be available to all SOAH employees, or at all times.

10. SOAH’s General Counsel and Risk Manager will monitor guidance and health protocols issued by the Texas Supreme Court, the Office of Court Administration, and state and local health officials, and will adjust this operating plan as necessary to meet public health conditions in SOAH offices and remote hearing locations statewide.

II. Hearings Operations

The Chief Clerk and all SOAH judges and mediators will administer cases in accordance with this Interim Operating and Transition Plan.

A. General Hearings and Mediations

1. Requests to Docket. To the extent that a Request to Docket Case Form requests the scheduling of a hearing or mediation at a specific date or time, the SOAH Chief Clerk’s Office will consider the request, but SOAH reserves the right to schedule all proceedings in light of statutory priority, current caseloads, ALJ assignments, and the business needs of the agency.

2. Limited In-Person Hearings Schedule. Upon the motion of a party for an in-person hearing, SOAH may schedule a limited number of in-person proceedings with hearing dates on or after May 1, 2022, at SOAH’s offices and remote locations. SOAH reserves the right to limit the scheduling of live hearings to proceedings with statutory priority and other case types as determined by SOAH. The presiding ALJ, in coordination with the Chief Clerk's Office, will evaluate requests for the scheduling of in-person hearings to ensure that the designated hearing location is available and approved for use as an in-person hearings venue, taking into consideration the complexity and duration of the case, the availability of ALJ assignments, and the availability of public health and safety accommodations for vulnerable individuals.

3. ACTS Implementation. Due to the business needs of the agency associated with the transition of data and operations to SOAH’s new Administrative Case Tracking System, in-person hearings and mediations may not be available for all case types or at all times.

4. Filing of Exhibits and Evidence for All Hearings. To the extent possible, the exhibits should be filed electronically in compliance with Rule 155.101(b)(1) and 155.429 of SOAH’s Rules of Procedure, and in compliance with the judge’s orders. Exhibits should be numbered sequentially, and multipage documents shall be paginated or Bates stamped. If multiple exhibits are combined into a single PDF, the document must be bookmarked to allow the judge and parties to locate each exhibit within the record.

   a. eFile Texas. On or about June 1, 2022, the Chief Clerk shall discontinue the practice of accepting the pre-filing and submission of documentary exhibits to be offered at a hearing through eFile Texas. Pre-filed testimony, documents filed as exhibits to motions, and exhibits for cases on written submission only should continue to be filed using eFile Texas.

   b. MOVEIt Transfer. Effective May 1, 2022, parties in General Docket proceedings shall be expected to submit all exhibits and evidence to be offered at the hearing electronically using MOVEit Transfer at least three (3) days prior to the scheduled hearing date, unless otherwise ordered by the judge. Thereafter, only exhibits that are admitted as evidence or accompanied by an offer of proof shall be accepted for filing as part of the administrative record.

   c. Audio/Video Exhibits. MOVEit Transfer shall continue to be used as the primary method for SOAH’s receipt of audiovisual exhibits and evidence.

5. Videoconference Technology. All videoconferences shall be hosted using a videoconference platform controlled by SOAH or a court-reporting service. Parties without an attorney who do not have reasonable access to a mobile device or computer that will enable them to attend their hearing by videoconference should contact SOAH to request assistance.

6. Prehearing Conferences. All prehearing conferences will be conducted by remote technologies to the extent feasible.

7. Remote Hearing Planning Conference. If deemed necessary by SOAH, by motion of the parties or sua sponte, the judge may request or require certain participants to confer prior to any preliminary hearing or hearing on the merits, for the purposes of determining or discussing:

   a. venue requirements for the proceeding, including the availability and feasibility of conducting all or a portion of the proceedings by teleconference or videoconference;

   b. alternatives for providing adequate notice and an opportunity to participate in proceedings to potentially affected persons or persons seeking party status;

   c. requirements for court reporters, language interpreters, audio or visual technology, or special accessibility needs;

   d. opportunities for referral of the case to mediation or another appropriate alternative dispute resolution procedure; and/or

   e. any other special procedures or requirements necessary for the fair and efficient handling of the proceeding.

8. IDEA Hearings and Resolution Meetings. The provisions of this Section apply to due process hearings conducted pursuant to the Individuals with Disabilities Education Act (IDEA) to the extent that such hearings are presided over by SOAH ALJs. Exhibits for IDEA proceedings shall continue to be filed electronically using MOVEit Transfer five (5) days prior to the scheduled hearing date, and/or in strict compliance with the orders of the presiding judge.

   Unless the parties otherwise agree in writing, federal law requires local school districts to convene a resolution meeting prior to the initiation of the IDEA due process hearing. These resolution sessions are not conducted at SOAH or attended by SOAH ALJs. However, SOAH encourages the parties to conduct these meetings telephonically or by videoconference if necessary to help resolve issues related to individual education plans without delay.

9. Balance Billing Mediation. This operating plan does not apply to mediations relating to consumer health benefits disputes pursuant to the former provisions of Texas Insurance Code, Chapter 1467. These “balance billing” or “surprise medical bill” mediations are not conducted at SOAH or by SOAH mediators, nor does SOAH have any authority over the parties to the mediation, or over the timetable on which the mediations occur. However, SOAH encourages the mediators and parties to those disputes to conduct their mediations by teleconference or videoconference to promote efficiency, and to afford consumers and providers the opportunity to efficiently resolve their disputes without delay.

B. Administrative License Revocation (Driver's License) Hearings

1. Remote ALR Hearings. The SOAH Chief Clerk’s Office shall docket ALR proceedings to be conducted by telephone or videoconference to promote efficiency, schedule hearings at the earliest available date, avoid undue delay in the resolution of cases, and minimize disruption associated with the transition of ALR scheduling from legacy systems operated by the Texas Department of Public Safety to SOAH’s Administrative Case Tracking System (ACTS). Judges shall issue scheduling orders as necessary to ensure that parties are provided with proper notice of how to participate in remote hearings.

2. Continuances and Objections. If a party requests a continuance or otherwise refuses to consent to a remote hearing, they must file a motion for continuance or an objection showing good cause as to why the continuance does not result in undue delay, or how the use of remote technologies is not feasible or in the interest of justice.

3. Electronic Filing Required. Pleadings and exhibits in all ALR cases must be timely filed in electronic format as specified on SOAH’s website at: https://www.soah.texas.gov/drivers-license-hearings-filing-information. All exhibits should be pre-filed at least two (2) days before the hearing and the evidentiary package submitted by the Department of Public Safety should in every case include the Notice of Hearing and any amended or corrected Notices of Hearing. If the document is a motion, the motion must be submitted separately from pleadings other filings.

4. Limited In-Person Hearing Schedule. The ability of SOAH to conduct in-person ALR hearings is expected to remain limited at this time due to ACTS implementation and circumstances beyond SOAH’s control, such as the restricted ability to reserve adequate hearing space throughout the state as a result of the COVID-19 pandemic and case backlogs in other courts.

5. Use of eFile Texas. By not later than June 1, 2022, SOAH shall begin requiring the Texas Department of Public Safety and defense attorneys to submit all ALR case filings by use of eFile Texas. SOAH shall promulgate amendments to the Rules of Procedure for ALR Hearings, in Title 1, Chapter 159 of the Texas Administrative Code in furtherance of this requirement.

C. Requirements for In-Person Proceedings

1. Due to enhanced security measures at the William P. Clements Building, agency representatives, lawyers, parties, and witnesses may be required to check in with the SOAH Chief Clerk's Office prior to being admitted to SOAH’s Austin Headquarters or proceeding to their assigned hearing room.

2. Hearing attendees at all SOAH offices may be required to wait outside of the assigned hearing room until their hearing is called.

3. Depending on local public health conditions relating to COVID-19, attendance may be limited as necessary, and all attendees may be encouraged to follow minimum standard health protocols announced by the ALJ as a matter of courtroom decorum.

4. Parties to in-person proceedings are not required to show documentation of their COVID-19 vaccination status.

5. Additional health protocols may be imposed by the judge as a matter of conduct and decorum if required for the protection of vulnerable individuals with an increased risk of severe illness.

6. Counsel and parties with a positive COVID-19 test, or any flu-like symptoms—including fever, coughing, congestion, fatigue, nausea or vomiting—should contact SOAH prior to the proceeding. Lawyers should contact SOAH if they are aware that agency staff, clients, witnesses or others have these symptoms.

7. Parties to in-person proceedings may file a motion to request that the proceeding be conducted telephonically or by videoconference, and/or allow participants to individually appear telephonically or by videoconference.

8. The maximum number of persons permitted in each hearing room has been determined and posted. The maximum capacity of the hearing rooms will be monitored and enforced by SOAH staff.

9. The capacity of the hearing rooms may be limited to provide opportunities for persons to engage in appropriate social distancing.

10. Participants attending an in-person hearing at a remote hearing location that is not under SOAH’s ownership or control may be subject to additional security requirements or public health measures imposed by the facility or local officials.

D. COVID-19 Precautions for Vulnerable Populations

1. Individuals who are over age 65 and individuals with serious underlying health conditions, such as high blood pressure, chronic lung disease, diabetes, obesity, asthma, and those whose immune systems are compromised such as by chemotherapy for cancer or other conditions requiring such therapy are considered to be vulnerable populations.

2. Individuals who are in vulnerable populations should contact SOAH to identify themselves as a vulnerable individual and timely request accommodations that may be necessary to assist in their ability to safely participate in any in-person hearing at SOAH for which they are scheduled to appear.

3. Vulnerable populations who are scheduled to participate in an in-person hearing may be accommodated by means, including, but not limited to:

• Instructions and assistance with filing a motion requesting to appear telephonically or by videoconference;

• Offering the option, if available, to participate in the hearing from a separate hearing room by use of SOAH-provided videoconference technology;

• Relocating the hearing to a different or larger hearing room to allow for increased social distancing or the use of physical barriers; or

• Informing the judge of the need to impose additional health protocols for hearing participants.