TITLE health-services

Part I. Texas Department of Health

Chapter 1. Texas Board of Health

Subchapter E. Use of Departmental Facilities by Public Health Related Organizations and Public Employee Organizations

The Texas Department of Health (department) adopts the repeal of §§1.71-1.74, and adopts new §1.71, concerning the use of departmental facilities without changes to the proposed text as published in the December 4, 1998, issue of the Texas Register (23 TexReg 12078); therefore the section will not be published. Specifically, the new section addresses the use of departmental facilities by public health-related organizations and public employee organizations. The repeal is necessary in order to reorganize the four current sections into a new section.

The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th Legislature, requires each state agency to review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Sections 1.71-1.74 has been reviewed and the department has determined that the reasons for adopting the sections continue to exist; however, the sections are reorganized into a single section.

The Administrative Procedure Act, §2001.021 requires each state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. Section 2001.003 defines the term "rule" to include a state agency statement of general applicability that implements or prescribes policy or describes the procedure or practice requirements of a state agency but does not include a statement regarding only the internal management of an agency not affecting private rights or procedures. New §1.71 fits within the definition of a "rule". This section informs readers that there are procedures for public health- related organizations and public employee organizations to obtain approval for limited use of departmental facilities. The rule is further supplemented and explained in the department's Administrative Policy Executive Order XO-1003.

The department published a notice of intention to review the four sections as required by Rider 167 in the Texas Register (23 TexReg 9075) on September 4, 1998. No comments were received by the department following that notice. In addition, no comments were received during the comment period for this repeal and new section.

25 TAC §§1.71-1.74

The repeal is adopted under the Administrative Procedure Act, §2001.004 which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures and the Health and Safety Code, §12.001 which provides the Texas Board of Health (board) with the authority to adopt rules for its procedures and for the performance of each duty imposed by law on the board, the department, and the commissioner of health. The General Appropriations Act, Article IX, Rider 167, passed by the 75th Legislature is implemented by this adoption.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 24, 1999.

TRD-9903014

Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: June 13, 1999

Proposal publication date: December 4, 1998

For further information, please call: (512) 458-7236


Subchapter E. Use of Departmental Facilities

25 TAC §1.71

The new section is adopted under the Administrative Procedure Act, §2001.004 which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures and the Health and Safety Code, §12.001 which provides the Texas Board of Health (board) with the authority to adopt rules for its procedures and for the performance of each duty imposed by law on the board, the department, and the commissioner of health. The General Appropriations Act, Article IX, Rider 167, passed by the 75th Legislature is implemented by this adoption.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 24, 1999.

TRD-9903015

Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: June 13, 1999

Proposal publication date: December 4, 1998

For further information, please call: (512) 458-7236


Subchapter F. Petition for the Adoption of a Rule

25 TAC §1.81

The Texas Department of Health (department) adopts an amendment to §1.81, concerning petitions for the adoption of a rule without changes to the proposed text as published in the December 4, 1998, issue of the Texas Register (23 TexReg 12079); therefore, the section will not be republished.

The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th Legislature, requires each state agency to review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Section 1.81 has been reviewed and the department has determined that the reasons for adopting the section continue to exist.

The Administrative Procedure Act, §2001.021 requires each state agency to adopt rules relating to the form of a petition for adoption of rules and the procedures for submission, consideration, and disposition of the petition. The law also requires that a state agency shall deny the petition in writing or initiate rulemaking procedures not later than the 60th day after the date of submission of a petition. Section 1.81 describes the form of a petition which would be accepted by the commissioner of health. The amendment states that the commissioner may refuse to accept a petition which is not in the correct form, rather than requiring board action to deny an unacceptable petition. The amendment also provides that the commissioner shall submit an accepted petition to the board and that the board shall deny the petition or institute rulemaking procedures within 60 days after receipt of an accepted petition.

The department published a Notice of Intention to Review this section as required by Rider 167 in the Texas Register (23 TexReg 9075) on September 4, 1998. No comments were received by the department following that notice. In addition, no comments were received during the comment period for this amendment.

The amendment is adopted under the Administrative Procedure Act, §2001.021 which requires state agencies to adopt rules relating to petitions for adoption of rules and the Health and Safety Code, §12.001 which provides the board with the authority to adopt rules for its procedures and for the performance of each duty imposed by law on the board, the department, and the commissioner of health. The General Appropriations Act, Article IX, Rider 167, passed by the 75th Legislature is implemented by this adoption.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 24, 1999.

TRD-9903013

Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: June 13, 1999

Proposal publication date: December 4, 1998

For further information, please call: (512) 458-7236


Subchapter I. Reimbursement Programs

25 TAC §1.111

The Texas Department of Health (department) adopts the repeal of §1.111, concerning the State Legalization Impact Assistance Grant (SLIAG) without changes to the proposed text as published in the January 29, 1999, issue of the Texas Register (24 TexReg 486), and therefore will not be republished.

The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th Legislature, requires each state agency to review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Section 1.111 has been reviewed and the department has determined that the reasons for the existence of this rule no longer exists and the grant under this rule is no longer funded.

The department published a Notice of Intention to Review the section as required by Rider 167 in the Texas Register (23 TexReg 9075) on September 4, 1998. No comments were received concerning the notice for review of this section.

No comments were received on the proposed rule during the comment period.

The repealed section implemented Federal Legislation to alleviate the financial impact on state and local government that might result from the adjustment of immigration status of certain groups of aliens residing in the states through grant use of reimbursement of or payments for cost incurred by state or local governments in providing public assistance, public health assistance and educational services to eligible legalized aliens.

The repeal is adopted under Administrative Procedure Act, Government Code §2001.004, which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. Section 2001.003(6)(B) provides that the repeal of a prior rule is a "rule" and the Health and Safety Code, §12.001, provides that the Texas Board of Health (board) has authority to adopt rules for its procedures for the performance of each duty imposed by law on the board, the department, and the commissioner of health. The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th Legislature is implemented by this adoption.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 24, 1999.

TRD-9903045

Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: June 13, 1999

Proposal publication date: January 29, 1999

For further information, please call: (512) 458-7236


Subchapter L. Medical Advisory Board

The Texas Department of Health (department) adopts the repeal of §1.151 and new §1.151 and §1.152 concerning the operation of the Medical Advisory Board (MAB) without changes to the proposed text as published in the March 5, 1999, issue of the Texas Register (24 TexReg 1554) and therefore the sections will not be republished.

The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th Legislature, required that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Section 1.151 has been reviewed and the department has determined that reason for adopting the section continues to exist in that a rule on this subject is needed; however, revisions needed are reflected in new §1.151 and §1.152.

The department published a Notice of Intention to Review §1.151 which was published in the September 4, 1998, issue of the Texas Register (23 TexReg 9076). No comments were received.

New §1.151 and §1.152 became necessary due to legislation in the 75th Legislature, Regular Session. Specifically, House Bill 2909 amended §12.092 and §12.095 of the Health and Safety Code to additionally require the MAB to assist the Department of Public Safety in determining whether an applicant for or a holder of a license to carry a concealed handgun is capable of exercising sound judgment with respect to the proper use and storage of a handgun. References to the Medical Standards on Motor Vehicle Operations Division have been replaced with language referring to the Medical Advisory Board or the bureau. New §1.152 creates a department physician to serve as permanent chair of the MAB for quality improvement, to ensure stability and to increase the efficiency of the panel.

No comments were received by the department on the proposed rules.

25 TAC §1.151

The repeal is adopted under the Health and Safety Code, §§12.001, 12.092, 12.094, and 12.095, which provide the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th Legislature is implemented by this adoption.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 24, 1999.

TRD-9903019

Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: June 13, 1999

Proposal publication date: March 5, 1999

For further information, please call: (512) 458-7236


25 TAC §1.151, §1.152

The new sections are adopted under the Health and Safety Code, §§12.001, 12.092, 12.094, and 12.095, which provide the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th Legislature is implemented by this adoption.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 24, 1999.

TRD-9903020

Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: June 13, 1999

Proposal publication date: March 5, 1999

For further information, please call: (512) 458-7236


Subchapter M. Payment of Franchise Taxes by Corporations Contracting with the Department or Applying for a License from the Department.

25 TAC §1.161

The Texas Department of Health (department) adopts an amendment to §1.161 concerning Delinquent Corporate Franchise Taxes with changes to the proposed text published in the December 4, 1998, issue of the Texas Register (23 TexReg 12081).

The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th Legislature (1997), requires each state agency to review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Section 1.161 has been reviewed and the department has determined that the reasons for adopting the section continue to exist.

The Business Corporation Act, Article 2.45 states that a corporation that is delinquent in a franchise tax owed to the state may not be awarded a contract by a state agency and may not be granted a permit or license by any state agency. While the state law does not require the department to adopt rules, it is appropriate to have rules to clarify the requirements of the department for applicants and contractors and to provide consistency throughout department programs. The section incorporates the requirement of the General Services Commission that certain bids submitted by a corporation must contain the required certification. The amendment also incorporates the current legal requirement that a limited liability company, as well as any type of corporation, file the certification. One minor change was made to the final rule text as described in this adoption preamble.

The department published a notice of intention to review the section as required by Rider 167 in the Texas Register (23 TexReg 9075) on September 4, 1998. No comments were received by the department following that notice. In addition, no comments were received during the comment period for this amendment.

The department is making the following minor change due to a staff comment to clarify the intent and improve the accuracy of the section.

Change: Concerning §1.161(b), language was added to recognize that the location of the General Service Commission requirement may be renumbered or revised. The department will not have to amend the reference if the commission should revise its requirement.

The amendment is adopted under the Business Corporation Act, Article 2.45 which requires state agencies to not award contracts or grant permits or licenses to corporations that are delinquent in the payment of their franchise tax and the Health and Safety Code, §12.001 which provides the board with the authority to adopt rules for its procedures and the performance of each duty imposed by law on the board, the department, and the commissioner of health. The General Appropriations Act, Article IX, Rider 167, passed by the 75th Legislature (1997) is implemented by this adoption.

§1.161. Delinquent Corporate Franchise Taxes.

(a)

Each corporation contracting with the department or each corporate applicant for an original or renewal license or permit issued by the department shall certify:

(1)-(3)

(No change.)

(b)

The department must have the certification on file before the department will enter into the contract or issue the license or permit. When required by the General Services Commission under 1 Texas Administrative Code §113.5(a)(13) (relating to Bid Submission, Bid Opening, and Tabulation) or other applicable General Services Commission requirement, a bid submitted by a corporation must contain the certification.

(c)

(No change.)

(d)

If the corporation makes a false statement as to corporate franchise tax status on any contract, the statement is grounds for cancellation of the contract by the department at the sole option of the department.

(e)

The term "corporation" includes a limited liability company.

(f)

This section covers any contract, permit, or license issued by the department. However, the Texas Board of Health may adopt rules covering delinquent franchise taxes for individual programs within the department. In such cases, the individual program section will prevail over this section.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 24, 1999.

TRD-9903011

Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: June 13, 1999

Proposal publication date: December 4, 1998

For further information, please call: (512) 458-7236


Subchapter O. Procurement of Professional Services

25 TAC §1.181

The Texas Department of Health adopts an amendment to §1.181 concerning Grants and Contracts for Professional Services without changes to the proposed text published in the January 29, 1999, issue of the Texas Register (24 TexReg 487); therefore the section will not be republished.

The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th Legislature (1997) requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Section 1.181 has been reviewed and the department has determined that reasons for readopting this section continue to exist; however, §1.181 requires an amendment as adopted herein.

The department published a Notice of Intention to review this section as required by Rider 167 in the Texas Register (23 TexReg 9075) on September 4, 1998. No comments were received concerning the review.

Section 1.181 implements Health and Safety Code, §12.0121 which requires the Board of Health (board) to adopt a list of categories of licensed, certified, registered, or otherwise authorized providers by rule to whom the department may award a grant for professional services or with whom the department may contract or otherwise engage to perform these types of professional services. The rule was originally adopted in 1991. This amendment updates the list of licensed, certified, or registered health or allied health professionals that have been licensed, certified or registered as professionals since 1991.

Specifically, the amendment adds chemical dependency counseling, contact lens dispensing, marriage and family therapy, medical radiologic technology, orthotist, perfusionist, podiatry, professional medical physics, prosthetics, physician's assistant, sex offender treatment, spectacle dispensing, and any other category for which an individual is licensed, certified, registered or otherwise authorized by the state and who is acting within the scope of the individual's license, certification, registration, or other authorization in the practice of a health or allied health professional.

The following comments were received concerning the proposed section. Following the comments are the department's responses.

Comment: Concerning §1.181, the Texas Osteopathic Medical Association (TOMA) requested that a reference be added to Health and Safety Code, Chapter 12.0121.

Response: The department disagrees. The reference to the Health and Safety Code, §12.0121 is correct and no change was made as a result of this comment.

Comment: Concerning §1.181, TOMA requested that "Osteopathic Manipulative Treatment" be added to the list of Professional Services.

Response: The department disagrees. "Osteopathic Manipulative Treatment is included in the definition of "practicing medicine" under the Medical Practice Act, Article 4495, PRCS. The department has had the authority to contract with osteopathic physicians to provide this service since 1991. No change was made as a result of this comment.

The comments were received from the Texas Osteopathic Medical Association. TOMA was neither for nor against rules and offered comments for clarification purposes.

The amendment is adopted under the Health and Safety Code, §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health, and Health and Safety Code, §12.0121, authorizing the department to contract for professional services. The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th Legislature (1997) is implemented by this adoption.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 24, 1999.

TRD-9903023

Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: June 13, 1999

Proposal publication date:January 29, 1999

For further information, please call: (512) 458-7236


Subchapter Q. Investigations of Abuse, Neglect, or Exploitation of Children or Elderly or Disabled Persons

25 TAC §§1.203-1.205, 1.207

The Texas Department of Health adopts amendments to §§1.203-1.205 and 1.207, concerning investigations of abuse, neglect, or exploitation of children or elderly or disabled persons without changes to the proposed text as published in the January 29, 1999, issue of the Texas Register (24 TexReg 488); therefore, the sections will not be republished.

The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th Legislature, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Sections 1.201-1.207 have been reviewed and the department has determined that reasons for readopting these sections continue to exist; however, §§1.203-1.205 and 1.207 require amendments as adopted herein.

The department published a Notice of Intention to Review the sections as required by Rider 167 in the Texas Register (23 TexReg 9075) on September 4, 1998. No comments were received.

The adopted admendments implement Acts 1997, 75th Legislature, Chapter 1022 (Senate Bill 359), amending the Human Resources Code, Chapter 48, and the Family Code, Chapter 261, which authorize the department to conduct investigations of abuse, neglect, or exploitation of children or elderly or disabled persons and to adopt rules relating to such investigations.

Specifically, the amended sections cover definitions; abuse, neglect, and exploitation defined; reports and investigations; and confidentiality of the investigative process and reports.

Section 1.203 defines words and terms used throughout the rules. The definitions are numbered in compliance with Texas Register format requirements (1 TAC §91.1, effective February 17, 1998). The definition of "facility" was amended to add "youth camps" to the list of facilities and to update the description of the hospitals operated by the department. The definition of "sexual abuse" was amended to correct the spelling of "nonconsensual."

Section 1.204 defines abuse, neglect and exploitation. Subsection (a)(1)(H) was amended to comply with Texas Register form and style requirements. New language was added to subsection (a)(1)(I) and (J) and subsection (a)(2)(A) and (B) to conform to changes to the Human Resources Code, Chapter 48 in accordance with Senate Bill 359.

Section 1.205 covers reports and investigations. New language in subsection (i)(1) and new subsection (o) were added to conform to changes to the Family Code, Chapter 261 in accordance with Senate Bill 359.

Section 1.207 covers confidentiality of investigative process and report. New subsections (h)-(j) were added to conform to changes to the Family Code, Chapter 261 in accordance with Senate Bill 359.

No comments were received during the comment period for the proposal of these amendments.

The amendments are adopted under the Health and Safety Code, §12.001 which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; the Family Code, §261.401 which requires rules relating to the investigation of abuse or neglect of a child; and the Human Resources Code, §48.083 which requires rules relating to the investigation of abuse, neglect, or exploitation of an elderly or disabled person. The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th Legislature is implemented by this adoption.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 24, 1999.

TRD-9903041

Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: June 13, 1999

Proposal publication date: January 29, 1999

For further information, please call: (512) 458-7236


Chapter 3. Memorandums of Understanding With Other State Agencies

25 TAC §3.41

The Texas Department of Health (department) adopts the repeal of §3.41, concerning the contract with the Texas Health Care Information Council (council) without changes to the proposed text as published in the January 29, 1999, issue of the Texas Register (24 TexReg 491), and therefore the section will not be republished.

The Texas Legislature created the council through passage of its enabling legislation, Chapter 108 of the Health and Safety Code, in 1995. Section 108.008(b)(2), as originally enacted, required the department to provide assistance to the council in accordance with rules adopted by the board (Board of Health) after consulting with the council and set out in the contract with the council. Senate Bill 788, 75th Legislature, 1997, removed the wording from the law requiring the board to adopt rules. The department and the council currently have a memorandum of understanding in place as required by Senate Bill 788. The department and council will continue to have a contract although it will no longer be adopted by board rule.

The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th Legislature, requires each state agency to review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Section 3.41 has been reviewed and the department has determined that the reasons for adopting the section no longer exist.

The department published a notice of intention to review the section as required by Rider 167 in the Texas Register (23 TexReg 9077) on September 4, 1998. No comments were received concerning the notice for review of this section.

No comments were received on the proposal during the comment period.

The repeal is adopted under the Health and Safety Code, §12.001 which provides the Texas Board of Health (board) with the authority to adopt rules for its procedures and for the performance of each duty imposed by law on the board, the department, and the commissioner of health. The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th legislature, is implemented by this adoption.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 24, 1999.

TRD-9903017

Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: June 13, 1999

Proposal publication date: January 29, 1999

For further information, please call: (512) 458-7236


Chapter 14. County Indigent Health Care Program

Subchapter F. Advisory Committee

25 TAC §14.501

The Texas Department of Health (department) adopts an amendment to §14.501, concerning the Indigent Health Care Advisory Committee (committee) without changes to the proposed text as published in the March 5, 1999, issue of the Texas Register (24 TexReg 1556), and therefore the section will not be republished. The committee provides advice to the Texas Board of Health (board) in the area of the Indigent Health Care Program.

In 1993, the Texas Legislature passed Senate Bill 383 (now codified in the Government Code, Chapter 2110) which requires that each state agency adopt rules on advisory committees. The rules must state the purpose of the committee, describe the tasks of the committee, describe the manner in which the committee will report to the agency, and establish a date on which the committee will be automatically abolished unless the governing body of the agency affirmatively votes to continue the committee's existence.

In 1995, the board established a rule relating to the committee. The rule stated that the committee will automatically be abolished on July 1, 1999. The board has now reviewed and evaluated the committee and has determined that the committee should continue in existence until July 1, 2003.

This section amends provisions relating to the operation of the committee. Specifically, language is revised to reference the Government Code; to continue the committee until July 1, 2003; to change the composition of the committee; to clarify that members holdover until their replacement is appointed; to standardize the time of the appointment process at every two years instead of every year; to require that the presiding officer and the assistant presiding officer of the committee will be selected by the chairman of the board for a term of two years; to allow a temporary vacancy in the office of assistant presiding officer to be filled by vote of the committee until appointment by the chairman of the board occurs; to clarify that the committee is prohibited from holding an executive session (closed meeting) for any reason; to clarify that the committee and its members may not participate in legislative activity in the name of the board, the department, or the committee except with certain approval; to require the committee's annual report in July rather than January; and reimbursement for a committee member's expenses if authorized by General Appropriations Act or budget execution process. These changes clarify procedures for the committee and emphasize the advisory nature of the committee.

No comments were received on the proposal during the comment period.

The amendment is adopted under the Health and Safety Code, §11.016, which allows the board to establish advisory committees; the Government Code, Chapter 2110, which sets standards for the evaluation of advisory committees by the agencies for which they function; and the Health and Safety Code, §12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 24, 1999.

TRD-9903043

Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: June 13, 1999

Proposal publication date: March 5, 1999

For further information, please call: (512) 458-7236


Chapter 39. Primary Health Care Services Program

Subchapter B. State Primary Care Program Advisory Committee

25 TAC §39.41

The Texas Department of Health (department) adopts the repeal of §39.41, concerning the Community Oriented Primary Care Advisory Committee (committee) without changes to the proposed text as published in the March 5, 1999, issue of the Texas Register (24 TexReg 1560). The committee has provided advice to the Texas Board of Health (board) and the department in planning, coordinating, and administering the development of a community-based comprehensive system of primary care, encompassing a full spectrum of psychosocial, preventive, acute/urgent, case management, and dental services.

In 1993, the Texas Legislature passed Senate Bill 383 (now codified in the Government Code, Chapter 2110) which requires that each state agency adopt rules on advisory committees. The rules must state the purpose of the committee, describe the tasks of the committee, describe the manner in which the committee will report to the agency, and establish a date on which the committee will be automatically abolished unless the governing body of the agency affirmatively votes to continue the committee's existence.

In 1995, the board established a rule relating to the Community Oriented Primary Care Advisory Committee. The rule stated that the committee will automatically be abolished on July 1, 1999. The board has now reviewed and evaluated the committee and has determined that the committee should be abolished. Issues relating to the type of advice previously provided by the committee may be addressed through the establishment of ad hoc committees.

No comments were received on the proposal during the comment period.

The repeal is adopted under the Health and Safety Code, §11.016, which allows the board to establish advisory committees; the Government Code, Chapter 2110, which sets standards for the evaluation of advisory committees by the agencies for which they function; and the Health and Safety Code, §12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 24, 1999.

TRD-9903022

Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: June 13, 1999

Proposal publication date: March 5, 1999

For further information, please call: (512) 458-7236


Chapter 115. Home and Community Support Services Agencies

Subchapter F. Advisory Committee

25 TAC §115.71

The Texas Department of Health (department) adopts an amendment to §115.71 concerning the Home and Community Support Services Advisory Committee (committee) without changes to the proposed text as published in the March 5, 1999, issue of the Texas Register (24 TexReg 1560), and therefore the section will not be republished. The committee provides advice to the Texas Board of Health (board) in the area of licensing of home and community support services agencies and was established under the Health and Safety Code, §142.015.

In 1993, the Texas Legislature passed Senate Bill 383 (now codified in the Government Code, Chapter 2110) which requires that each state agency adopt rules on advisory committees. The rules must state the purpose of the committee, describe the tasks of the committee, describe the manner in which the committee will report to the agency, and establish a date on which the committee will be automatically abolished unless the governing body of the agency affirmatively votes to continue the committee's existence.

In 1995, the board established a rule relating to the committee. The rule stated that the committee will automatically be abolished on July 1, 1999. The board has now reviewed and evaluated the committee and has determined that the committee should continue in existence until July 1, 2003.

This section amends provisions relating to the operation of the committee. Specifically, language is revised to reference the Government Code; to add the task of advising the department on enforcement provisions as specified in the Health and Safety Code, §142.015(c); to continue the committee until July 1, 2003; to clarify who may call a meeting; to clarify that the committee is prohibited from holding an executive session (closed meeting) for any reason; to clarify that the committee and its members may not participate in legislative activity in the name of the board, the department, or the committee except with certain approval; to require the committee's annual report in July rather than January; and to reference reimbursement of a member's expenses if authorized by the General Appropriations Act or budget execution process. These changes clarify procedures for the committee and emphasize the advisory nature of the committee.

No comments were received on the proposal during the comment period.

The amendment is adopted under the Health and Safety Code, §11.016, which allows the board to establish advisory committees; the Government Code, Chapter 2110, which sets standards for the evaluation of advisory committees by the agencies for which they function; and the Health and Safety Code, §12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 24, 1999.

TRD-9903010

Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: June 13, 1999

Proposal publication date: March 5, 1999

For further information, please call: (512) 458-7236


25 TAC §115.72

The Texas Department of Health (department) adopts an amendment to §115.72 concerning the Texas Department of Health/Board of Nurse Examiners (TDH/BNE) Memorandum of Understanding Advisory Committee (committee) with changes to the proposed text as published in the March 5, 1999, issue of the Texas Register (24 TexReg 1562). The committee provides advice to the Texas Board of Health (board) and the Board of Nurse Examiners (BNE) regarding circumstances under which the provision of health-related tasks or services provided by a home and community support services agency are not considered to be the practice of professional nursing under the personal assistance services licensure category. The committee was established under the Health and Safety Code, §142.016(b).

In 1993, the Texas Legislature passed Senate Bill 383 (now codified in the Government Code, Chapter 2110) which requires that each state agency adopt rules on advisory committees. The rules must state the purpose of the committee, describe the tasks of the committee, describe the manner in which the committee will report to the agency, and establish a date on which the committee will be automatically abolished unless the governing body of the agency affirmatively votes to continue the committee's existence.

In 1995, the board established a rule relating to the committee. The rule stated that the committee will automatically be abolished on July 1, 1999. The board has now reviewed and evaluated the committee and has determined that the committee should continue in existence until July 1, 2003.

This section amends provisions relating to the operation of the committee. Specifically, language is revised to reference the Government Code; to continue the committee until July 1, 2003; to clarify that members holdover until their replacement is appointed; to clarify that the committee is prohibited from holding an executive session (closed meeting) for any reason; to clarify that the committee and its members may not participate in legislative activity in the name of the board, the department, the BNE, or the committee except with certain approval; to require the committee's annual report in July rather than January; and to address reimbursement for a committee member's expenses if authorized by General Appropriations Act or budget execution process. These changes clarify procedures for the committee and emphasize the advisory nature of the committee.

No comments were received on the proposal during the comment period; however, the department is making the following minor changes due to staff comments to improve the accuracy of the section.

Change: Concerning §115.72 (f)(2), the language was revised to correct references to other provisions in the section.

The amendment is adopted under the Health and Safety Code, §11.016, which allows the board to establish advisory committees; the Government Code, Chapter 2110, which sets standards for the evaluation of advisory committees by the agencies for which they function; and the Health and Safety Code, §12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health.

§115.72. Texas Department of Health/Board of Nurse Examiners Memorandum of Understanding Advisory Committee.

(a)

(No change.)

(b)

Applicable law. The committee is subject to the Government Code, Chapter 2110, concerning state agency advisory committees.

(c)-(d)

(No change.)

(e)

Review and duration. By July 1, 2003, the board will initiate and complete a review of the committee to determine whether the committee should be continued, consolidated with another committee, or abolished. If the committee is not continued or consolidated, the committee shall be abolished on that date.

(f)

Composition.

(1)

The committee shall be composed of ten members. The members of the committee shall be appointed as follows:

(A)

one representative from the BNE and one representative from the Texas Department of Health (department);

(B)

one representative from the Texas Department of Mental Health and Mental Retardation;

(C)

one representative from the Texas Department of Human Services;

(D)

one representative from the Texas Nurses Association;

(E)

one representative from the Texas Association for Home Care, Incorporated, or its successor;

(F)

one representative from the Texas Hospice Organization, Incorporated, or its successor;

(G)

one representative of the Texas Respite Resource Network or its successor; and

(H)

two representatives of organizations such as the Personal Assistance Task Force or the Disability Consortium that advocate for clients in community-based settings.

(2)

The representatives from the organizations listed in paragraph (1)(A)-(G) may serve without further approval of the board or the BNE. The representatives of organizations described in paragraph (1)(H) must be approved by the board and the BNE before serving.

(g)

Terms of office. The term of office of each member shall be six years. Members shall serve after expiration of their term until a replacement is appointed.

(1)

Members shall be appointed for staggered terms so that the terms of a substantially equivalent number of members will expire on January 31 of each even-numbered year.

(2)

(No change.)

(h)

(No change.)

(i)

Meetings. The committee shall meet only as necessary to conduct committee business.

(1)-(2)

(No change.)

(3)

The committee is not a "governmental body" as defined in the Open Meetings Act. However, in order to promote public participation, each meeting of the committee shall be announced and conducted in accordance with the Open Meetings Act, Texas Government Code, Chapter 551, with the exception that the provisions allowing executive sessions shall not apply.

(4)-(7)

(No change.)

(j)

Attendance. Members shall attend committee meetings as scheduled. Members shall attend meetings of subcommittees to which the member is assigned.

(1)-(3)

(No change.)

(k)-(m)

(No change.)

(n)

Statement by members.

(1)

The board, the department, and the committee shall not be bound in any way by any statement or action on the part of any committee member except when a statement or action is in pursuit of specific instructions from the board, department, or committee.

(2)

The committee and its members may not participate in legislative activity in the name of the board, the department, the BNE, or the committee except with approval through the department's legislative process. Committee members are not prohibited from representing themselves or other entities in the legislative process.

(o)

Reports to board. The committee shall file an annual written report with the board and the BNE.

(1)

The report shall list the meeting dates of the committee and any subcommittees, the attendance records of its members, a brief description of actions taken by the committee, a description of how the committee has accomplished the tasks given to the committee by the board, the status of any rules which were recommended by the committee to the board and, anticipated activities of the committee for the next year.

(2)

(No change.)

(3)

The report shall cover the meetings and activities in the immediate preceding 12 months and shall be filed with the board and the BNE each July. It shall be signed by the co-chairmen and appropriate department staff.

(p)

Reimbursement for expenses. Except in accordance with the requirements set forth in the Government Code, Chapter 2110, a committee member shall be reimbursed for expenses incurred for each day the member engages in official committee business if authorized by the General Appropriations Act or budget execution process.

(1)-(5)

(No change.)

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 24, 1999.

TRD-9903042

Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: June 13, 1999

Proposal publication date: March 5, 1999

For further information, please call: (512) 458-7236


Chapter 229. Food and Drug

Subchapter N. Chemical and Pesticide Tolerance Levels in Food

25 TAC §229.221, §229.222

The Texas Department of Health (department) adopts the repeal of §§229.221 - 229.222, concerning chemical and pesticide tolerance levels in food. The repealed sections are adopted without changes to the proposed repeal as published in the April 2, 1999, Texas Register (24 TexReg 2629), and therefore will not be republished.

These sections established tolerance levels for ethylene dibromide in food and the effective date for tolerance levels of ethylene dibromide in food. The repeal of these rules is necessary because any tolerance for the pesticide in food was revoked in 1984 by federal regulations.

The General Appropriations Act, House Bill 1, Article IX, Rider 167, enacted by the 75th Texas Legislature, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). The sections have been reviewed and the department has determined that reasons for adopting the sections no longer exist.

The department published a Notice of Intention to Review §§229.221-229.222 as required by Rider 167 in the Texas Register (24 TexReg 831) on February 5, 1999. No comments were received on the Notice of Intention to Review these sections.

No comments were received on the proposed repeal of the rules during the comment period.

The repeal is adopted under the Health and Safety Code, §431.241, which provides the department with the authority to adopt necessary regulations pursuant to the enforcement of Chapter 431; and §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th Legislature, is implemented by the adoption.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 24, 1999.

TRD-9903018

Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: June 13, 1999

Proposal publication date: April 2, 1999

For further information, please call: (512) 458-7236


Chapter 295. Occupational Health

Subchapter C. Texas Asbestos Health Protection

25 TAC §295.32, §295.61

The Texas Department of Health (department) adopts amendments to §295.32 and §295.61 concerning the reduction of asbestos project notification fees for schools. Section 295.32 is adopted with changes to the proposed text as published in the April 2, 1999, issue of the Texas Register (24 TexReg 2630). Section 295.61 is adopted without changes and therefore will not be republished.

Section 295.32 adds new definitions for public school, school, and school building. These definitions were added to define the entities which will be affected by this change.

Section 295.61 reduces the maximum notification fee for schools to $300 per notification. This reduction is proposed to relieve the burden on schools which are required by the Environmental Protection Agency (EPA) Asbestos Hazard Emergency Response Act (AHERA) to take additional steps beyond those required of a public or commercial building owner to address the asbestos in their buildings.

The department is making the following minor change due to a staff comment to clarify the intent and improve the accuracy of the section.

Concerning §295.32(80), in the second sentence "Any gymnasium of other facility...", the word "of" was deleted and the word "or" was inserted.

A public hearing was held in Austin, Texas on April 9, 1999. Written comments were also received. The following is a summary of comments received. Following each comment is the department's response.

Comment: Concerning the rule changes in general, two commenters made favorable statements. One expressed full support of the notification fee changes. The other thanked the department for being receptive to their concerns regarding the fee system and expressed that the changes would relieve a financial burden from the schools in Texas.

Response: The department agrees that these changes will help schools to save money. It is the intent of the department to lessen the cost of notification in the hopes that the money will be used to perform abatement properly when needed and other savings would benefit the education of the students. No change was made as a result of the comments.

Comment: One commenter stated that he felt the notification fees should be the same for all entities.

Response: The department agrees that the fee schedule should be equitable throughout the regulated community. Kindergarten through 12th grade schools are uniquely disadvantaged, under the previous notification fee schedule, because they do not have the option of consolidating their facilities into one campus as do universities or manufacturing entities. As a result, they pay more fees to complete their projects because their buildings are distributed on many campuses. Kindergarten through 12th grade schools, by their nature, must serve local communities within a school district. This excludes them from taking advantage of the reduced notification fee schedule afforded the rest to the regulated community who are generally consolidated into one campus or facility. The department believes that these changes place the schools on even footing with the rest of the regulated community with respect to notification fees. No change was made as a result of this comment.

The amendments are adopted under Texas Civil Statutes, Article 4477-3a, which provides the Board of Health (board) with the authority to adopt rules regarding asbestos removal, encapsulation or enclosure, including licensing and regulation; Senate Bill 1341 and House Bill 79, 72nd Legislature, 1991, House Bill 1680 and House Bill 1826, 73rd Legislature, 1993, which amended Article 4477-3a; and by Health and Safety Code, §12.001 which provides the board with authority to adopt rules to implement every duty imposed by law on the board, the department, and the commissioner of health.

§295.32.Definitions.

The following words and terms, when used with these sections, shall have the following meaning, unless the context clearly indicates otherwise.

(1)-(73)

(No change.)

(74)

Public school - Any elementary or secondary school operated by publicly elected or appointed school officials in which the program and activities are under the control of these officials and which is supported primarily by public funds.

(75)

Regulated area - The demarcated area in which asbestos abatement activity takes place, and in which the possibility of exceeding the permissible exposure limits (PEL) for the concentrations of airborne asbestos exists.

(76)

Renovation - Additions to or alterations of the building for purposes of restoration by removal, repairing, and rebuilding.

(77)

Response action - A method, including removal, encapsulation, enclosure, repair, and operation and maintenance, that protects human health and the environment from friable ACBM.

(78)

Responsible person - The individual that is designated by the licensed Asbestos Abatement Contractor, Asbestos Operations and Maintenance Contractor, Asbestos Laboratory, Asbestos Consultant Agency, or Asbestos Management Planner Agency, as responsible for their operations and compliance with these rules.

(79)

School - Any public or private, non-profit, elementary or secondary (kindergarten through grade 12) school as defined in the Elementary and Secondary Education Act of 1965 (20 U.S.C. 8801).

(80)

School building - Any structure suitable for use as a classroom, including a school facility such as a laboratory, library, school eating facility, or facility used for the preparation of food. Any gymnasium or other facility which is specially designed for athletic or recreational activities for an academic course in physical education. Any other facility used for the instruction or housing of students or for the administration of educational or research programs. Any maintenance, storage, or utility facility, including any hallway, essential to the operation of any facility described in this definition of "school building." Any portico or covered exterior hallway or walkway. Any exterior portion of a mechanical system used to condition interior space.

(81)

Small-scale, short-duration activities (SSSD) - Are tasks such as, but not limited to removal of asbestos-containing insulation on pipes; removal of small quantities of asbestos-containing insulation on beams or above ceilings; replacement of an asbestos-containing gasket on a valve; installation or removal of a small section of drywall; installation of electrical conduits through or proximate to asbestos-containing materials. These tasks, when performed in a commercial building, do not require accreditation. SSSD can be further defined by the following considerations.

(A)

Removal of small quantities of ACM only if required in the performance of another maintenance activity not intended as asbestos abatement.

(B)

Removal of asbestos-containing thermal system insulation not to exceed amounts greater than those which can be contained in a single glove bag.

(C)

Minor repairs to damaged thermal system insulation which do not require removal.

(D)

Repairs to a piece of asbestos-containing wallboard.

(E)

Repairs, involving encapsulation, enclosure, or removal, to small amounts of friable ACBM only if required in the performance of emergency or routine maintenance activity and not intended solely as asbestos abatement. Such work may not exceed amounts greater than those which can be contained in a single prefabricated mini-enclosure. Such an enclosure shall conform spatially and geometrically to the localized work areas, in order to perform its intended containment function.

(82)

Start date - The dates defined as:

(A)

asbestos abatement start date - The date on which the disturbance of asbestos begins;

(B)

demolition/renovation start date - The date on which the demolition or renovation process begins.

(83)

Stop date - The dates defined as:

(A)

asbestos abatement stop date (completion date) - The date upon which air monitoring clearance of asbestos abatement has been achieved. Where air clearance is not required, such as roofing removal, the date upon which the removal of asbestos-containing material is completed.

(B)

demolition/renovation stop date - The date on which the demolition or renovation is complete.

(84)

Survey - An activity undertaken in a school building, or a public and commercial building to determine the presence or location, or to assess the condition of, friable or non-friable asbestos-containing building material (ACBM) or suspected ACBM, whether by visual or physical examination, or by collecting samples of such material. This term includes reinspections of friable and non-friable known or assumed ACBM which has been previously identified. The term does not include the following:

(A)

periodic surveillance of the type described in 40 CFR §763.92(b) solely for the purpose of recording or reporting a change in the condition of known or assumed ACBM;

(B)

inspections performed by employees or agents of federal, state, or local government solely for the purpose of determining compliance with applicable statutes or regulations; or

(C)

visual inspections of the type described in 40 CFR §763.90(i) solely for the purpose of determining completion of response actions.

(85)

TEM - Transmission Electron Microscopy.

(86)

Transportation of asbestos containing material (ACM) - Moving asbestos materials from one site to another.

(87)

Working days- Monday through Friday including holidays which fall on those days.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 24, 1999.

TRD-9903044

Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: June 13, 1999

Proposal publication date: April 2, 1999

For further information, please call: (512) 458-7236