TITLE 25.HEALTH SERVICES

Part 1. TEXAS DEPARTMENT OF HEALTH

Chapter 1. TEXAS BOARD OF HEALTH

The Texas Department of Health (department) proposes the repeal of §1.2 and amendments to §§1.1, and 1.3 - 1.8 concerning procedures and policies of the Board of Health (board).

Specifically the sections address the purpose of the sections, organization of the board, powers and duties of the board, meetings of the board, actions requiring board approval, the commissioner of health, and press and public relations. The repeal of the section on membership of the board is proposed in order to delete language which is redundant of state law.

Government Code, §2001.039 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 1.1 - 1.8 have been reviewed and the department has determined that the reasons for adopting these sections, other than §1.2 on membership of the board, continue to exist; however, the language of the sections should be updated and language that is redundant of state law should be deleted. The language is redundant of state law found in the Health and Safety Code, Chapters 11 and 12 relating to appointments of the chair and vice-chair of the board, advisory committees appointed by the board, meetings of the board, and reimbursement of expenses of board members; Open Meetings Act, Texas Government Code, Chapter 551 relating to meetings of governmental bodies; and Texas Civil Statutes, Article 6252-31 relating to dissenting votes in board meetings. In addition to clarifying language throughout the sections, §§1.4, 1.6, and 1.7 are amended to conform with House Bill 2641, enacted by the 76th Legislature. This law establishes new relationships among the Health and Human Services Commission, the Board of Health, and the Commissioner of Health (commissioner). Section 1.5(e) is added to state that time limits may be established for public comments or testimony at board and committee meetings.

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

Susan K. Steeg, General Counsel, has determined that for each year of the first five years the repeal and amended sections are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the sections as proposed.

Ms. Steeg has determined that for each year of the first five years the repeal and amended sections are in effect, the public benefit anticipated as a result of enforcing or administering the sections will be improvement of the language to make the sections more readable for the public and the deletion of language that is redundant of state law. There will be no effect on small businesses or micro-businesses because the sections only govern the board, the department and the commissioner. There are no economic costs to persons who are required to comply with the sections as proposed. There will be no effect on local employment.

Comments on the proposal may be submitted to Susan K. Steeg, General Counsel, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7236. Comments will be accepted for 30 days following publication of the proposal in the Texas Register .

Subchapter A. PROCEDURES AND POLICIES

25 TAC §§1.1, 1.3 - 1.8

The amendments are proposed under the Health and Safety Code, Chapters 11 and 12 which allow the board to adopt rules relating to advisory committees and board meetings and §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 amendments affect the Health and Safety Code, Chapter 12; Government Code, Chapter 531, and Government Code, §2001.039.

§1.1. Purpose.

The purpose of this subchapter [ these sections ] is to establish requirements concerning the organization of the Board of Health, (board) [ the ] policies and procedures which the board will follow in implementing the duties imposed by law on the board, and the related responsibilities of the commissioner of health.

§1.3. Organization of the Board of Health

(a)

Chair and vice-chair. [ The governor, no later than September 1 of each odd-numbered year, shall designate one board member as chair and one member as vice-chair. ]

(1)

The chair shall preside at all Board of Health (board) [ board ] meetings, call special meetings of the board, and provide for [ give ] timely notice of a special meeting to each member. Meetings are described further in §1.5 of this title (relating to Meetings of the Board of Health).

(2)

(No change.)

[ (b)

Committees.]

(b)

[ (1) ] Board of Health [ health ] committees.

(1)

The board may establish [ appoint ] standing and special committees consisting of board members to expedite the board's work. The committees will be working extensions of the board.

(2)

The chair may appoint board members to serve on any [ board ] committee [ for a specific purpose if the chair determines that an appointment is necessary ].

[ (2)

Advisory committees.]

[ (A)

The board may appoint advisory committees to assist the board in developing public health rules, policies and procedures, and to assist the Department of Health in providing public health services.]

[ (B)

The board shall adopt rules covering the composition, duration, procedures, and expenses of the advisory committees.]

§1.4. General Powers and Duties of the Board of Health.

(a)

The powers and duties of the Board of Health (board) under this section are subject to the authority of the Health and Human Services Commission (commission) under Government Code, Chapter 531 and the memorandum of understanding between the commission and the board.

(b)

[ (a) ] The Health and Safety Code provides that the board [ Board of Health ] was established to better protect and promote the health of the people of the State of Texas and have general supervision and control over all matters relating to the health of the people of the State of Texas.

(c)

[ (b) ] The board, in discharging its legal responsibilities as the Texas Department of Health's (department) governing body, shall establish rules, policies, and procedures, which shall provide the commissioner of health with the authority and direction to administer the department's services, programs, and activities.

(d)

[ (c) ] The board may delegate or assign to the commissioner, or to the person acting as commissioner in the commissioner's absence, any power or duty imposed by law on the board, including the authority to issue final orders and make decisions; however, the board may not delegate to the commissioner the power or duty to adopt rules.

(e)

[ (d) ] The board shall supervise the commissioner's administration and enforcement of federal and state health laws and implementation of the powers and duties delegated or assigned by the board or by the commission to the commissioner.

§1.5. Meetings of the Board of Health.

[ (a)

The board shall meet in the city of Austin or in other places determined by the board.]

[ (b)

The board shall meet at least once each calendar quarter on dates determined by the board and shall hold special meetings at the call of the chair. The chair shall give timely notice to each member of any special meeting.]

(a)

[ (c) ] All meetings of the Board of Health shall comply with the Texas Open Meetings Act, Texas Government Code, Chapter 551.

[ (1)

The department shall post notice of each meeting with the secretary of state's office at least seven days prior to the date of the meeting. The notice shall specify the date, time, subject(s) of the meeting.]

[ (2)

Special rules exist for a meeting which needs to be convened in a case of emergency or urgent public necessity.]

[ (A)

A case of emergency or urgent public necessity is limited to imminent threats to public health and safety or reasonably unforeseeable situations requiring immediate action.]

[ (B)

The department shall post notice of a meeting involving an emergency or urgent public necessity with the secretary of state at least two hours before the meeting is convened.]

(1)

[ (3) ] All meetings shall be open to the public, except for executive sessions [ which are discussed in paragraph (4) of this subsection ]. All or any part of the public meeting may be recorded by any person in attendance by means of tape recorder, video camera, or any other means of sonic or visual reproduction. The chair will determine the location of any such equipment and the manner in which the recording is conducted, provided that the determination does not prevent or unreasonably impair camera coverage or tape recording.

[ (4)

Executive sessions are closed meetings of the board which may be held only as expressly authorized by the Open Meetings Act (Act). Persons who may attend and subjects which may be discussed are described in the Act.]

(2)

[ (5) ] The board must have a quorum present to convene a meeting and to conduct official business. A quorum of the board is four members.

(b)

[ (6) ] The board shall conduct a meeting in accordance with Robert's Rules of Order, latest edition, unless there are rules or statutes that require otherwise.

(c)

[ (7) ] An affirmative vote by a majority of the board membership present and voting is required for the adoption of a rule, policy, or procedure.

[ (8)

During a meeting, a board member may dissent against any board action and may enter a written statement of such dissent into the official minutes of the meeting.]

(d)

[ (9) ] The board shall keep official minutes of the meetings as required by the Open Meetings Act. The Office of the Board of Health shall prepare [ prepares ] the minutes, the board must approve [ approves ] them, and the chair and vice-chair must sign them. Before the board approves them, the minutes shall be [ are ] sent to each member for review, comment, or correction prior to approval. The official minutes of all board meetings are kept in the Office of the Board of Health and are available for public review as authorized by the Open Meetings Act.

[ (10)

Board members, in performing official duties, shall receive no fixed salary but shall be paid compensatory per diem and reimbursed for meals, lodging, and transportation in accordance with the General Appropriations Act.]

(e)

The chair of the board may limit each person presenting public comments or public testimony on any agenda item to a certain number of minutes by announcing the period when comments or testimony are given. The chair of each board committee may also set time periods for comments or testimony given at committee meetings.

§1.6. Actions Requiring Board Approval.

(a)-(d)

(No change).

(e)

Of those appointments made by the commissioner, the following shall be subject to the approval of the board:

(1)

the executive deputy and deputy commissioners of the department;

(2)-(5)

(No change.)

(f)

(No change).

(g)

Other actions. The board may approve any other action by the commissioner or the department where the approval of the board is required by law , delegated by the commissioner of the Health and Human Services Commission, or requested by the commissioner.

§1.7. Commissioner of Health.

(a)

The powers and duties of the commissioner of health under this section are subject to the authority of the Health and Human Services Commission (commission) under Government Code, Chapter 531 and the memorandum of understanding between the commissioner of health and the commissioner of the Health and Human Services Commission. The commissioner of health, as the executive director [ head ] of the Texas Department of Health (department), shall perform the duties delegated and assigned by the Board of Health (board) , the commissioner of the Health and Human Services Commission, and state law. [ Subject to §1.6 of this title (relating to Actions Requiring Board Approval), the board conducts all department business through the commissioner. ]

(b)

The commissioner of health shall:

(1)

administer and enforce federal and state health laws applicable to the department by issuing orders, making decisions, awarding and executing contracts, and implementing the duties delegated or assigned to the commissioner of health by the board and the commissioner of the Health and Human Services Commission ;

(2)

administer and implement department services, programs, and activities, maintain professional standards within the department, and represent the department as its chief executive. To accomplish this goal, the commissioner of health is authorized to hire and supervise personnel, establish appropriate organization, acquire suitable administrative, clinical, and laboratory facilities, [ and ] obtain sufficient financial support , provide for the operation of the department, and further delegate to departmental personnel duties delegated or assigned by the board and the commissioner of the Health and Human Services Commission ;

(3)-(5)

(No change.)

§1.8. Press and Public Relations.

(a)

Prior to each Board of Health meeting, copies of the [ preliminary ] agenda shall be sent to the Capitol press corps, governor's office, Office of the Secretary [ secretary ] of State [ state ], and Legislative Budget Board.

(b)-(d)

(No change).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 14, 2000.

TRD-200000295

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 27, 2000

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


25 TAC §1.2

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under the Health and Safety Code, Chapters 11 and 12 which allow the board to adopt rules relating to advisory committees and board meetings and §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 repeal affects the Health and Safety Code, Chapter 12; Government Code, Chapter 531, and Government Code, §2001.039.

§1.2. Membership.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 14, 2000.

TRD-200000296

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 27, 2000

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


Chapter 97. COMMUNICABLE DISEASES

Subchapter F. SEXUALLY TRANSMITTED DISEASES INCLUDING ACQUIRED IMMUNODEFICIENCY SYNDROME (AIDS) AND HUMAN IMMUNODEFICIENCY VIRUS (HIV)

25 TAC §97.141

The Texas Department of Health (department) proposes an amendment to §97.141, concerning the addition of hepatitis C training to the counseling course currently offered by the department, raising the fee charged for the course, and allowing for a waiver of the fee in certain circumstances. The changes are made to comply with Chapter 823 of the 76th Legislature, 1999, which added Health and Safety Code, Chapter 93, Education and Prevention Program for Hepatitis C.

Rose M. Brownridge, M.D., Acting Chief, Bureau of HIV and STD Prevention, has determined that for each year of the first five year period the amended section is in effect, there will be fiscal implications as a result of enforcing or administering the section as proposed. The fee for taking the course will increase the revenue to the state by approximately $6,300 per year. This revenue will be used by the department to fund the development and teaching of the additional curriculum required by the new law. It is estimated that the costs to the department to administer the new provisions will equal the estimated revenue increases. The authorizing statutes direct the department to set the fee in an amount necessary to cover the costs of providing the course. Local governments who are not under a current contract with the Bureau of HIV and STD Health Resources Division will incur the cost of the course fee in the amount of $300.

Rose M. Brownridge, M.D., Acting Chief, Bureau of HIV and STD Prevention, has also determined that for each year of the first five year period the amended section is in effect, the public benefit anticipated as a result of enforcing or administering the section will be increased knowledge on the part of those persons providing hepatitis C counseling. Those who complete the course will have more information relating to the special needs of persons with positive hepatitis C test results, including the importance of early intervention and treatment and recognition of psychosocial needs. The HIV counseling course has not been utilized by micro- businesses or small business. Therefore, there is no anticipated cost to micro-businesses or small businesses. The only cost to individuals will be to those who wish to take the course at their own expense. The anticipated cost to such individuals is the course fee of $300. There is no anticipated impact on local employment.

Comments on the proposal may be submitted to Mr. Jeffery Seider, Policy Unit Manager, Bureau of HIV and STD Prevention, Texas Department of Health, 1100 West 49th Street, Austin Texas, 78756, (512) 490-2505. Comments will be accepted for 30 days following the date of publication in the Texas Register .

The amendment is proposed under Health and Safety Code §85.087, which requires the board to set a fee for the training of HIV counselors; §85.016, which allows the department to adopt rules to implement this requirement; Health and Safety Code §93.003 which requires the board to set a fee for the training of hepatitis C counselors; 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 proposed amendment affects Health and Safety Code §§85.087 and 93.003.

§97.141. Fee To Cover the Cost of Providing the Human Immunodeficiency Virus (HIV) Counseling and Testing Course.

(a)

Purpose. The purpose of this section is to implement the provisions of the Health and Safety Code, §85.087 and §93.003 [ Communicable Disease Prevention and Control Act, §§85.081-85.089 ], which require [ requires ] that the Texas Department of Health (department) develop and offer a training course for persons providing HIV and/or hepatitis C counseling, and authorizes the department to charge a [ reasonable ] fee for the course.

(b)

Content. The training course shall include information relating to HIV risk reduction and to the special needs of persons with positive HIV and/or Hepatitis C test results[ , including the importance of early intervention and treatment and recognition of psychosocial needs ]. The department's Bureau of HIV and STD Prevention sets the content. Detailed information about the course may be obtained from the Bureau of HIV and STD Prevention, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756- 3199.

(c)

Fee.

(1)

The fee will be $300 [ $150 ] for each participant whose affiliation is with an entity that does not contract with the department. The Bureau of HIV and STD Prevention may waive the fee according to established internal procedures.

(2)

Fees shall be made payable to the Texas Department of Health. All fees are non-refundable and must be received by the department prior to participation in the course. The accepted [ Accepted form ] forms of payment are [ shall include ] cashiers check or money order. No other form of payment will be accepted.

(d)

Notice. Notice of the training courses will be announced through correspondence to contractors and other appropriate entities. [ Detailed information about the course can be obtained from the Bureau of HIV and STD Prevention, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3199. ]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 14, 2000.

TRD-200000282

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 27, 2000

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


Chapter 133. HOSPITAL LICENSING

Subchapter C. OPERATIONAL REQUIREMENTS

25 TAC §133.45

The Texas Department of Health (department) proposes an amendment to §133.45 concerning voluntary paternity establishment services in hospitals. The amendment adds new subsection (e) relating to voluntary paternity establishment services. Hospitals licensed by the department that handle the birth of newborns will be required to provide voluntary paternity establishment services in accordance with the section as a condition of licensure.

Federal law found at 42 United States Code §666(a)(5) requires that each state establish certain procedures concerning paternity establishment services. The United States Department of Health and Human Services has adopted regulations relating to the establishment of paternity. The regulations are found at 45 Code of Federal Regulations §302.70(a)(5)(iii) and §303.5(g). The federal regulations require that all private and public birthing hospitals participate in the voluntary paternity establishment services program. The Texas Legislature enacted Acts 1999, 76th Legislature, Chapter 556, (Senate Bill 368) which amends the Family Code and the Health and Safety Code to incorporate the requirements concerning paternity establishment which are required by federal law.

This amendment requires hospitals to comply with Health and Safety Code, §192.012 relating to record of acknowledgment of paternity and the rules of the Office of the Attorney General found at Title 1, Texas Administrative Code, Chapter 55, Subchapter J (relating to Voluntary Paternity Establishment). There is no express entity identified in federal or state law, federal regulations, or the rules of the Office of the Attorney General which would be responsible for insuring enforcement of the law and rules. Therefore, this amendment is being added to the hospital licensing rules as a condition of licensure in order to ensure a hospital's compliance with the law and rules and to provide a mechanism for sanctioning a hospital that fails to comply with the requirements relating to voluntary paternity establishment services. Compliance will be determined during licensing surveys and inspections.

Jann Melton-Kissel, Bureau of Licensing and Compliance, has determined that for each year of the first five years the proposed section is in effect, there may be no fiscal implications for state government as a result of enforcing or administering this section. Since the department already surveys and inspects hospitals for compliance with other laws and rules, this section will not place any additional fiscal burden on the department. There may be fiscal implications for state or local governments which operate a hospital that handles the birth of newborns as a result of enforcing or administering this section. If the hospital fails to comply with the section, the department may assess an administrative penalty against the hospital. In addition to the administrative penalties, additional costs may be incurred by the hospital defending the imposition of the penalty or any other sanction. There are no means of determining those costs at this time since penalties and costs may vary greatly. The department does not anticipate that it will sanction a hospital solely for noncompliance with the amendment. Although there will be additional costs relating to the operation of the paternity establishment services, those costs are a result of the application of the federal and state law and the rules of the Office of the Attorney General, not because of this department's rule. Therefore, those implications are not discussed here.

Ms. Melton-Kissel also has determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of enforcing the section will be to ensure compliance by hospitals that handle the birth of newborns with requirements relating to voluntary paternity establishment services. There will be an effect on small businesses which are hospitals that handle the birth of newborns if the hospital is sanctioned by the department for noncompliance. That effect is the same as described above for state or local governments operating hospitals. There will be economic costs to persons who are required to comply with the section as proposed if the hospital is sanctioned for noncompliance with the rule. Those costs are the same as described above for state or local governments operating hospitals. There will be no effect on local employment.

Comments may be submitted to Tom Camp, Chief, Bureau of Licensing and Compliance, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 834-4503. Comments on the proposed section will be accepted for 30 days following publication in the Texas Register .

The amendment is proposed under the Health and Safety Code, §241.026, which requires the Texas Board of Health (board) to adopt and enforce rules to further the purposes of the Texas Hospital Licensing Law including rules relating to hospital services relating to patient care and compliance with other state and federal laws affecting the rights of patients; the Family Code, §160.215 which allows the department to adopt rules to implement the requirements relating to acknowledgment or denial of paternity; the Health and Safety Code, §191.003, which allows the board to adopt necessary rules relating to vital statistics; and the Health and Safety Code, §12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and commissioner of health.

The amendment affects the Health and Safety Code, Chapters 191, 192 and 241, and the Family Code, Chapter 160.

§133.45.Miscellaneous Policies and Protocols.

(a)-(d)

(No change.)

(e)

A hospital that handles the birth of newborns must provide voluntary paternity establishment services in accordance with:

(1)

the Health and Safety Code, §192.012, Record of Acknowledgment of Paternity; and

(2)

the rules of the Office of the Attorney General found at 1 Texas Administrative Code, Chapter 55, Subchapter J (relating to Voluntary Paternity Establishment).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 10, 2000.

TRD-200000145

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 27, 2000

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


Chapter 135. AMBULATORY SURGICAL CENTERS

The Texas Department of Health (department) proposes amendments to §135.3 and §135.21, the repeal of §§135.25 - 135.27, and new §§135.25 - 135.29, concerning ambulatory surgical centers. Specifically, the sections cover fees, inspections, complaints, reporting of incidents, confidentiality, emergency suspension, and administrative penalties.

The amendment to §135.3 increases the initial and renewal license fees from $1,000 to $2,000 to cover the increased cost to the department of conducting on-site licensing inspections of ambulatory surgical centers every three years in accordance with Health and Safety Code §243.006(b), as amended by Senate Bill (SB) 1249, 76th Legislature, 1999. The amendment to §135.21 adds new language to implement the amendment to Health and Safety Code §243.006(b) concerning the on-site licensing inspections of ambulatory surgical centers licensed by the department and certified under Title XVIII of the Social Security Act once every three years while the center maintains the certification.

The repeal of §§135.25 - 135.27 will allow the reorganization in a more appropriate order the sections within Subchapter A. New §§135.25 - 135.26 contain proposed new language to incorporate legislative mandates; new §§135.27 - 135.29 contain the adopted language in existing §§135.25 - 135.27, with minor corrections to the text.

New §135.25 will implement certain provisions of SB 1249, 76th Legislative, 1999. Senate Bill 1249 (SB) amended Health and Safety Code, Chapter 243 by adding §243.0115 which grants the department authority to issue an emergency order to suspend a license issued under this chapter.

New §135.26 will implement House Bill 2085, Article 3, which amends Health and Safety Code, Chapter 243, by adding §§243.015 and 243.016, relating to administrative penalties for ambulatory surgical centers. These sections set forth standard language developed by the Sunset Advisory Commission regarding the imposition of an administrative penalty on a person who violates Chapter 243 or a rule adopted under that chapter; the amount of the penalty; the report and notice of a violation and penalty; the penalty to be paid or hearing requested; a hearing; decision by the commissioner; options following a decision to pay or appeal; stay enforcement of the penalty; collection of penalty; decisions by the court; the remittance of penalty and interest; and release of bond.

New §135.27 incorporates requirements from existing §135.25 relating to complaints. New §135.28 incorporates requirements from the existing §135.26 relating to reporting of incidents. New §135.29 incorporates the requirements of existing §135.27 relating to confidentiality.

Jann Melton-Kissel, Bureau of Licensing and Compliance, has determined that for the first five years the proposed sections are in effect, there will be fiscal implications as a result of enforcing or administering the sections as proposed. The effect on state government will be an increase in revenue as a result of increased licensing fees. The revenue generated by increased licensing fees will cover increased costs of administering the survey process; conducting on-site licensing inspections and quality assurance review of survey documents; and administrative support. The proposed license fee increase for initial and renewal licenses from $1,000 to $2,000 is estimated to generate revenues of $1,022,500 for fiscal years 2000-2004 as follows: For FY 2000, $53,500; FY 2001, $225,000; FY 2002, $236,000; FY 2003, $248,000; and FY 2004, $260,000. In regard to the new administrative penalty section, approximately one-third of cases recommended for enforcement go through the hearing process, with the remaining cases resolved through other means. The department estimates a baseline of five violations in fiscal year 2000 at a rate of $3,000 per violation. The estimated annual growth in the number of incidents is 10% and collection rate is 75% each fiscal year, 2000-2004. The estimated total generated in administrative penalties collected and deposited in the state treasury to the credit of the general revenue fund for the same period would be $68,683 as follows: FY 2000, $11,250; FY 2001, $12,375; FY 2002, $13,613; FY 2003, $14,974; and FY 2005, $16,471. There will be no effect on local government.

Ms. Melton-Kissel also has determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing the sections will be to ensure compliance by ambulatory surgical centers with the new legislative mandates. There will be no cost to small/micro businesses (except ambulatory surgical centers) to comply with the sections as proposed. A small or micro-business that is an ambulatory surgical center will incur the cost of an additional $1,000 for initial and annual renewal license fees. An ambulatory surgical center will incur the cost of an administrative penalty only if an administrative penalty is assessed against the center. Administrative penalties may not exceed $1,000 for each violation for each day a violation continues; the maximum penalty is $5,000 for each violation. There are no anticipated economic costs to persons who are required to comply with the sections as proposed. There is no anticipated impact on local employment.

Comments on the proposal may be submitted to Cecil Jones, Program Director, Consolidated Programs, Health Facility Licensing and Compliance Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 834-6646. Comments will be accepted for 30 days following publication of this proposal in the Texas Register .

Subchapter A. OPERATING REQUIREMENTS FOR AMBULATORY SURGICAL CENTERS

25 TAC §§135.3, 135.21, 135.25 - 135.29

The amendments and new sections are proposed under Health and Safety Code, Chapter 243, the Texas Ambulatory Surgical Center Licensing Act; Health and Safety Code, §243.006, regarding inspections; Health and Safety Code, §243.007, regarding fees; Health and Safety Code, §243.0115 which grants the department authority to issue an emergency suspension order to suspend a license; Health and Safety Code, §§243.015 and 243.016, which provides the department with the authority to assess administrative penalties against an ambulatory surgical center for violation of Chapter 243 and the rules adopted thereunder; and 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 commissioner of health.

These sections affect Health and Safety Code, Chapters 12 and 243.

§135.3. Fees.

(a)

The Texas Board of Health has established the following schedule of fees for licensure as an ambulatory surgical center:

(1)

initial license fee - $2,000 [ $1,000 ].

(2)

renewal license fee - $2,000 [ $1,000 ].

(b)-(e)

(No change.)

§135.21. Inspections.

(a)

The department shall conduct an initial on-site inspection to determine if either the federal conditions of participation under Title XVIII or the standards for licensing set forth in these sections are being met. Prior to an inspection, the surveyor shall notify the applicant in writing of the date and time of the inspection. The department will evaluate the ASC on a standard-by-standard basis before the first annual license is issued, unless waived in accordance with §135.20(b)(7) of this title (relating to Application and Issuance of License for Initial Applicants). An on-site inspection for ASCs that are not participating in the Title XVIII Program may be conducted for license renewal. An on-site inspection for ASCs that participate in the Title XVIII Program may be conducted once every three years. An on-site inspection may be conducted if a change of ownership of a licensed ASC has occurred, if the ASC has not demonstrated compliance with standards, or if complaints against an ASC have been received by the department.

(b)-(d)

(No change).

§135.25. Emergency Suspension.

(a)

The department may issue an emergency order to suspend a license issued under this chapter if the department has reasonable cause to believe that the conduct of a license holder creates an immediate danger to the public health and safety.

(b)

An emergency suspension is effective immediately without a hearing or notice to the license holder.

(c)

On written request of the license holder, the department shall conduct a hearing not earlier than the 10th day or later than the 30th day after the date the hearing request is received to determine if the emergency suspension is to be continued, modified, or rescinded. The hearing and any appeal are governed by the department's rules for a contested case hearing and Government Code, Chapter 2001.

§135.26. Administrative Penalties.

(a)

Imposition of penalty.

(1)

The department may impose an administrative penalty on a person licensed under this chapter who violates the Act, this chapter, or order adopted under this chapter.

(2)

A penalty collected under this section shall be deposited in the state treasury in the general revenue fund.

(3)

A proceeding to impose the penalty is considered to be a contested case under Government Code, Chapter 2001.

(b)

Amount of penalty.

(1)

The amount of the penalty may not exceed $1,000 for each violation, and each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. The total amount of the penalty assessed for a violation continuing or occurring on separate days under this paragraph may not exceed $5,000.

(2)

In determining the amount of an administrative penalty assessed under this section, the department shall consider:

(A)

the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;

(B)

the threat to health or safety caused by the violation;

(C)

the history of previous violations;

(D)

the amount necessary to deter a future violation;

(E)

whether the violator demonstrated good faith, including when applicable whether the violator made good faith efforts to correct the violation; and

(F)

any other matter that justice may require.

(c)

Report and notice of violation and penalty.

(1)

If the department initially determines that a violation occurred, the department shall give written notice of the report by certified mail to the person alleged to have committed the violation not later than 90 days following the survey exit date.

(2)

The notice must include:

(A)

a brief summary of the alleged violation;

(B)

a statement of the amount of the recommended penalty based upon the factors listed in subsection (b)(2) of this section; and

(C)

a statement of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both.

(d)

Penalty to be paid or hearing requested.

(1)

Within 20 days after the date the person receives the notice under subsection (c) of this section, the person in writing may:

(A)

accept the determination and recommended penalty of the department; or

(B)

make a request for a hearing on the occurrence of the violation, the amount of the penalty, or both.

(2)

If the person accepts the determination and recommended penalty or if the person fails to respond to the notice, the commissioner of public health (commissioner) or the commissioner's designee by order shall approve the determination and impose the recommended penalty.

(e)

Hearing.

(1)

If the person requests a hearing, the commissioner shall refer the matter to the State Office of Administrative Hearings (SOAH).

(2)

As mandated by Health and Safety Code, §243.015(i), the SOAH shall promptly set a hearing date and give written notice of the time and place of the hearing to the person.

(A)

An administrative law judge of the SOAH shall conduct the hearing.

(B)

The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the commissioner a proposal for a decision about the occurrence of the violation and the amount of a proposed penalty.

(f)

Decision by commissioner.

(1)

Based on the findings of fact, conclusions of law, and proposal for a decision made by the administrative law judge under subsection (e)(2) of this section, the commissioner by order may find that a violation occurred and impose a penalty, or may find that a violation did not occur.

(2)

The commissioner or the commissioner's designee shall give notice of the commissioner's order under paragraph (1) of this subsection to the person alleged to have committed the violation in accordance with Government Code, Chapter 2001. The notice must include:

(A)

a statement of the right of the person to judicial review of the order;

(B)

separate statements of the findings of fact and conclusions of law; and

(C)

the amount of any penalty assessed.

(g)

Options following decision: pay or appeal. Within 30 days after the date an order of the commissioner under subsection (f)(1) of this section that imposes an administrative penalty becomes final, the person shall:

(1)

pay the penalty; or

(2)

appeal the penalty by filing a petition for judicial review of the commissioner's order contesting the occurrence of the violation, the amount of the penalty, or both.

(h)

Stay of enforcement of penalty.

(1)

Within the 30-day period prescribed by subsection (g) of this section, a person who files a petition for judicial review may:

(A)

stay enforcement of the penalty by:

(i)

paying the penalty to the court for placement in an escrow account; or

(ii)

giving the court a supersedeas bond that is approved by the court for the amount of the penalty and that is effective until all judicial review of the commissioner's order is final; or

(B)

request the court to stay enforcement of the penalty by:

(i)

filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and

(ii)

sending a copy of the affidavit to the commissioner by certified mail.

(2)

If the commissioner receives a copy of an affidavit under paragraph (1)(B) of this subsection, the commissioner may file with the court, within five days after the date the copy is received, a contest to the affidavit. In accordance with Health and Safety Code, §243.016(c), the court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty or to give a supersedeas bond.

(i)

Collection of penalty.

(1)

If the person does not pay the penalty and the enforcement of the penalty is not stayed, the department may refer the matter to the attorney general for collection of the penalty.

(2)

As provided by the Health and Safety Code §243.016(d), the attorney general may sue to collect the penalty.

(j)

Decision by court. A decision by the court is governed by Health and Safety Code, §243.016(e) and (f), and provides the following.

(1)

If the court sustains the finding that a violation occurred, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty.

(2)

If the court does not sustain the finding that a violation occurred, the court shall order that a penalty is not owed.

(k)

Remittance of penalty and interest and release of supersedeas bond. The remittance of penalty and interest is governed by Health and Safety Code, §243.016(g) and provides the following.

(1)

If the person paid the penalty and if the amount of the penalty is reduced or the penalty is not upheld by the court, the court shall order, when the court's judgement becomes final, that the appropriate amount plus accrued interest be remitted to the person within 30 days after the date that the judgment of the court becomes final.

(2)

The interest accrues at the rate charged on loans to depository institutions by the New York Federal Reserve Bank.

(3)

The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted.

(l)

Release of bond. The release of supersedeas bond is governed by Health and Safety Code, §243.016(h) and provides the following.

(1)

If the person gave a supersedeas bond and the penalty is not upheld by the court, the court shall order, when the court's judgment becomes final, the release of the bond.

(2)

If the person gave a supersedeas bond and the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the reduced amount.

§135.27. Complaints.

(a)

The department or its authorized representative may enter the premises of an ASC during normal business hours as necessary to assure compliance with the Act and these sections. The investigation may be conducted on-site, unannounced or announced, or may be investigated by phone or mail.

(b)

All licensed ambulatory surgical centers are required to provide the patient and his/her guardian at time of admission a written statement identifying the department as the responsible agency for ambulatory surgical centers complaint investigations. The statement shall inform persons to direct complaint to the Texas Department of Health, Health Facility Licensing and Compliance Division, 1100 West 49th Street, Austin, Texas 78756, telephone (888) 973-0022. Complaints may be registered with the department by phone or in writing. A complainant may provide his/her name, address, and phone number to the department. Anonymous complaints may be registered. All complaints are confidential.

(c)

The department will evaluate all complaints against all ambulatory surgical centers. Only those allegations determined to be relevant to the Act will be authorized for investigation.

(d)

Conduct of the investigation will include, but not be limited to:

(1)

a conference prior to commencing the on-site inspection for the purpose of explaining the nature and scope of the inspection between the department's authorized representative and the person who is in charge of the ASC:

(2)

inspection of the ASC;

(3)

inspection of medical and personnel records, including administrative files, reports, records, or working papers;

(4)

an interview with any willing recipient of ambulatory surgical center services at the ASC or in the recipient's home if the recipient grants permission in writing;

(5)

an interview with any health care practitioner or ambulatory surgical center personnel who care for the recipient of ambulatory surgical services;

(6)

a conference at the conclusion of the inspection between the department's representative and the person who is in charge of the ASC.

(A)

The department's representative will identify any records that have been reproduced.

(B)

Any records that are removed from an ASC (other than those reproduced) shall be removed only with the consent of the ASC.

(e)

The department will review the report of the investigation and determine the validity of the complaint.

(f)

Following the on-site inspection for those ASCs that do not participate under Title XVIII, the provisions of §135.21(b) , (c) , (d)(1), (d)(4), (d)(6), and (d)(7) of this title (relating to Inspections) will apply.

§135.28. Reporting of Incidents.

(a)

Certain situations and incidents that occur in an ASC shall be reported directly to the department.

(b)

Upon learning of the incident, the ambulatory surgical center shall report the incident to the Texas Department of Health in Austin. A written letter of explanation with supporting documents must be mailed to the department within 30 days of the incident. The mailing address is Texas Department of Health, Health Facility Licensing and Compliance Division, 1100 West 49th Street, Austin, Texas 78756.

(c)

Reportable incidents include the following.

(1)

Complications that result in the death of a patient must be reported.

(2)

Complications that result in emergency transfer of a patient to a hospital from the ambulatory surgical center must be reported.

(3)

Reports of any fire or other damage sustained at the ASC must be reported.

(d)

Any theft of drugs and /or diversion of controlled drugs shall be reported to the local police agency, the State Board of Pharmacy, the Texas Department of Public Safety, and/or the Drug Enforcement Administration, and the Texas Department of Health.

§135.29. Confidentiality.

Request for information and access to records are governed by the Texas Open Records Act, Texas Government Code, Chapter 552.

(1)

A written request for information is required. The request must sufficiently identify the information requested.

(2)

The department may ask for a clarification if it cannot reasonably understand a particular request.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 14, 2000.

TRD-200000279

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 27, 2000

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


25 TAC §§135.25 - 135.27

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed under Health and Safety Code, Chapter 243, the Texas Ambulatory Surgical Center Licensing Act; Health and Safety Code, §243.006, regarding inspections; Health and Safety Code, §243.007, regarding fees; Health and Safety Code, §243.0115 which grants the department authority to issue an emergency suspension order to suspend a license; Health and Safety Code, §§243.015 and 243.016, which provides the department with the authority to assess administrative penalties against an ambulatory surgical center for violation of Chapter 243 and the rules adopted thereunder; and 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 commissioner of health.

These sections affect Health and Safety Code, Chapters 12 and 243.

§135.25. Complaints.

§135.26. Reporting of Incidents.

§135.27. Confidentiality.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 14, 2000.

TRD-200000278

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 27, 2000

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


Chapter 137. BIRTHING CENTERS

Subchapter C. ENFORCEMENT

The Texas Department of Health (department) proposes the repeal of §137.23, and proposes new §§137.23 - 137.25, concerning birthing centers. Specifically, the sections cover emergency suspension, administrative penalties, and complaints.

The repeal of §137.23 is only to allow the reorganization in a more appropriate order the sections within Subchapter C which contain proposed new language to incorporate legislative mandates. The adopted language in §137.23 is moved to proposed new §137.25. New §137.23 will implement certain provisions of Senate Bill 1232, 76th Legislature, 1999, which grants the department the authority to issue an emergency order to suspend a license.

New §137.24 will implement House Bill 2085, Article 4, which amends Health and Safety Code, Chapter 244 by adding §244.015 and §244.016 relating to administrative penalties for birthing centers. These sections set forth standard language developed by the Sunset Advisory Commission regarding the imposition of an administrative penalty on a person who violates Chapter 244 or a rule adopted under that chapter; the amount of the penalty; the basis for the amount of the penalty; the report and notice of a violation and penalty; the penalty to be paid or hearing requested; a hearing; decision by the commissioner; options following a decision to pay or appeal; stay enforcement of the penalty; collection of penalty; decision by the court; the remittance of penalty and interest; and release of bond. Section 137.24 incorporates the language of §244.015 and §244.016.

New §137.25 includes the adopted language of §137.23 that is proposed for repeal. In addition, a new subsection (i) is added to implement Health and Safety Code §244.0105, of Senate Bill 1232, 76th Legislature, 1999. The subsection sets forth standard language developed by the Sunset Advisory Commission authorizing that a person may file a complaint with the department against a birthing center licensed under Health and Safety Code, Chapter 244, and that a person who files a false complaint may be prosecuted under the Penal Code. Section §137.25(i) incorporates the language of §244.0105.

Jann Melton-Kissel, Bureau of Licensing and Compliance, has determined that for the first five years the proposed sections are in effect, there will be fiscal implications for state government as a result of enforcing or administering the sections. The estimated total generated in administrative penalties collected and deposited in the state treasury to the credit of the general revenue fund for fiscal years 2000-2004 would be $98,345 as follows: FY 2000--$2,625; FY 2001--$20,625; FY 2002--$22,687; FY 2003--$24,956; and FY 2004--$27,452. There will be no effect on local government.

Ms. Melton-Kissel also has determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing the sections will be to ensure compliance by birthing centers with the new legislative mandates. There will be no significant cost to small/micro businesses to comply with the sections as proposed. There are no anticipated economic costs to persons who are required to comply with the sections as proposed unless a person operates a birthing center against which an administrative penalty is assessed. Administrative penalties may not exceed $1,000 for each violation for each day a violation continues; the maximum penalty is $5,000 for each violation. There is no anticipated impact on local employment.

Comments on the proposal may be submitted to Cecil Jones, Program Director, Consolidated Programs, Health Facility Licensing and Compliance Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756, (512) 834-6646. Comments will be accepted for 30 days following publication of this proposal in the Texas Register .

25 TAC §137.23

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under Health and Safety Code, Chapter 244, which authorizes the department to issue an emergency suspension order to suspend a license; which provides the department with the authority to assess administrative penalties against a birthing center for violation of Health and Safety Code, Chapter 244 and the rules adopted thereunder; and 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 commissioner of health.

The repeal affects Health and Safety Code, Chapters 12 and 244.

§137.23.Complaints.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 14, 2000.

TRD-200000274

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 27, 2000

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


25 TAC §§137.23 - 137.25

The new sections are proposed under Health and Safety Code, Chapter 244, which authorizes the department to issue an emergency suspension order to suspend a license; which provides the department with the authority to assess administrative penalties against a birthing center for violation of Health and Safety Code, Chapter 244 and the rules adopted thereunder; and 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 commissioner of health.

The new sections affect Health and Safety Code, Chapters 12 and 244.

§137.23.Emergency Suspension.

(a)

The department may issue an emergency order to suspend a license issued under this chapter if the department has reasonable cause to believe that the conduct of a license holder creates an immediate danger to the public health and safety.

(b)

On written request of the license holder, the department shall conduct a hearing not earlier than the seventh day or later than the 10th day after the date the notice of the emergency suspension is sent to the license holder to determine if the emergency suspension is to take effect, to be modified, or to be rescinded.

(c)

The hearing and any appeal are governed by the department's rules for a contested case hearing and Government Code, Chapter 2001.

§137.24.Administrative Penalties.

(a)

Imposition of penalty.

(1)

The department may impose an administrative penalty on a person licensed under this chapter who violates the Act, this chapter, or an order adopted under this chapter.

(2)

A penalty collected under this section shall be deposited in the state treasury in the general revenue fund.

(3)

A proceeding to impose the penalty is considered to be a contested case under Government Chapter, Code 2001.

(b)

Amount of penalty.

(1)

The amount of the penalty may not exceed $1,000 for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. The total amount of the penalty assessed for a violation continuing or occurring on separate days under this paragraph may not exceed $5,000.

(2)

In determining the amount of an administrative penalty assessed under this section, the department shall consider:

(A)

the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;

(B)

the threat to health or safety caused by the violation;

(C)

the history of previous violations;

(D)

the amount necessary to deter a future violation;

(E)

whether the violator demonstrated good faith, including when applicable whether the violator made good faith efforts to correct the violation; and

(F)

any other matter that justice may require.

(c)

Report and notice of violation and penalty.

(1)

If the department initially determines that a violation occurred, the department shall give written notice of the report by certified mail to the person alleged to have committed the violation not later than 90 days following the survey exit date.

(2)

The notice must include:

(A)

a brief summary of the alleged violation;

(B)

a statement of the amount of the recommended penalty based on the factors listed in subsection (b)(2) of this section; and

(C)

a statement of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both.

(d)

Penalty to be paid or hearing requested.

(1)

Within 20 days after the date the person receives the notice under subsection (c), the person in writing may:

(A)

accept the determination and recommended penalty of the department; or

(B)

make a request for a hearing on the occurrence of the violation, the amount of the penalty, or both.

(2)

If the person accepts the determination and recommended penalty or if the person fails to respond to the notice, the commissioner of health (commissioner) or the commissioner's designee by order shall approve the determination and impose the recommended penalty.

(e)

Hearing.

(1)

If the person requests a hearing, the commissioner or the commissioner's designee shall refer the matter to the State Office of Administrative Hearings (SOAH).

(2)

As mandated by Health and Safety Code, §244.015(i), the SOAH shall promptly set a hearing date and give written notice of the time and place of the hearing to the person.

(A)

An administrative law judge of the SOAH shall conduct the hearing.

(B)

The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the commissioner a proposal for a decision about the occurrence of the violation and the amount of a proposed penalty.

(f)

Decision by commissioner.

(1)

Based on the findings of fact, conclusions of law, and proposal for a decision made by the administrative judge under subsection (e)(2) of this section, the commissioner or the commissioner's designee by order may find that a violation occurred and impose a penalty; or find that a violation did not occur.

(2)

The commissioner or the commissioner's designee shall give notice of the commissioner's order under paragraph (1) of this subsection to the person alleged to have committed the violation in accordance with Government Code, Chapter 2001. The notice must include:

(A)

a statement of the right of the person to judicial review of the order;

(B)

separate statements of the findings of fact and conclusions of law; and

(C)

the amount of any penalty assessed.

(g)

Options following decision: pay or appeal. Within 30 days after the date the order of the commissioner or commissioner's designee under subsection (f) of this section that imposes an administrative penalty becomes final, the person shall:

(1)

pay the penalty; or

(2)

appeal the penalty by filing a petition for judicial review of the commissioner's order contesting the occurrence of the violation, the amount of the penalty, or both.

(h)

Stay of enforcement of penalty.

(1)

Within the 30-day period prescribed by subsection (g) of this section , a person who files a petition for judicial review in accordance with subsection (g) of this section may:

(A)

stay enforcement of the penalty by:

(i)

paying the penalty to the court for placement in an escrow account; or

(ii)

giving the court a supersedeas bond that is approved by the court for the amount of the penalty and that is effective until all judicial review of the commissioner's order is final; or

(B)

request the court to stay enforcement of the penalty by:

(i)

filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and

(ii)

sending a copy of the affidavit to the commissioner by certified mail.

(2)

If the commissioner receives a copy of an affidavit under paragraph (1)(B)(ii) of this subsection, the commissioner may file with the court, within five days after the date the copy is received, a contest to the affidavit. In accordance with Health and Safety Code §244.016(c), the court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty or to give a supersedeas bond.

(i)

Collection of penalty.

(1)

If the person does not pay the penalty and the enforcement of the penalty is not stayed, the department may refer the matter to the attorney general for collection of the penalty.

(2)

As provided by Health and Safety Code, §244.016(d), the attorney general may sue to collect the penalty.

(j)

Decision by court. A decision by the court is governed by Health and Safety Code, §244.016(e), and provides the following:

(1)

If the court sustains the finding that a violation occurred, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty.

(2)

If the court does not sustain the finding that a violation occurred, the court shall order that a penalty is not owed.

(k)

Remittance of penalty and interest and release of supersedeas bond. The remittance of penalty and interest is governed by Health and Safety Code, §244.016(g) and provides the following.

(1)

If the person paid the penalty and if the amount of the penalty is reduced or the penalty is not upheld by the court, the court shall order, when the court's judgment becomes final, that the appropriate amount plus accrued interest be remitted to the person within 30 days after the date that the judgment of the court becomes final.

(2)

The interest accrues at the rate charged on loans to depository institutions by the New York Federal Reserve Bank.

(3)

The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted.

(l)

Release of bond. The release of supersedeas bond is governed by Health and Safety Code, §244.016(h) and provides the following:

(1)

If the person gave a supersedeas bond and the penalty is not upheld by the court, the court shall order, when the court's judgment becomes final, the release of the bond.

(2)

If the person gave a supersedeas bond and the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the reduced amount.

§137.25.Complaints.

(a)

In accordance with §137.42 of this title (relating to Disclosure Requirements), all licensed centers are required to provide a client, and her guardian if the client is a minor or if guardianship is required, at the time of the initial visit, with a written statement that complaints relating to the center may be registered with the Director, Health Facility Licensing and Compliance Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, Telephone (888) 973-0022.

(b)

Complaints may be registered with the department by telephone or in writing at the address listed in subsection (a) of this section. A complainant may provide his or her name, address, and phone number to the department. Anonymous complaints may be registered if the complainant provides sufficient information.

(c)

The department will evaluate all complaints received.

(d)

A complaint containing allegations which are a violation of the Act or this chapter will be investigated by the department.

(e)

A department representative (surveyor) may enter the premises of a center at reasonable times as necessary to assure compliance with the Act and this chapter. The department is not required to notify the applicant or licensee prior to a complaint investigation.

(f)

If the department determines that the complaint does not come within the department's jurisdiction, the department shall advise the complainant and, if possible, refer the complainant to the appropriate governmental agency for handling such a complaint.

(g)

The department shall inform in writing a complainant who identifies himself or herself by name and address of the following information:

(1)

the receipt of the complaint;

(2)

whether the complainant's allegations allege potential violations of the Act or this chapter warranting an investigation;

(3)

whether the complaint will be investigated by the department; and

(4)

whether and to whom the complaint will be referred.

(h)

The department shall, at least as frequently as quarterly, notify the parties to the complaint of the status of the complaint until its final disposition.

(i)

A person may file a complaint with the department against a birthing center licensed under this chapter. A person who files a false complaint may be prosecuted under the Penal Code.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 14, 2000.

TRD-200000275

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 27, 2000

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


Subchapter D. OPERATIONAL AND CLINICAL STANDARDS FOR THE PROVISION AND COORDINATION OF TREATMENT AND SERVICES

25 TAC §137.55

The Texas Department of Health (department) proposes an amendment to §137.55 concerning voluntary paternity establishment services in birthing centers. The amendment adds new subsection (1) relating to the voluntary paternity establishment services. Birthing centers licensed by the department will be required to provide voluntary paternity establishment services in accordance with the section as a condition of licensure.

Federal law found at 42 United States Code §666(a)(5) requires that each state establish certain procedures concerning paternity establishment services. The United States Department of Health and Human Services has adopted regulations relating to the establishment of paternity. The regulations are found at 45 Code of Federal Regulations §302.70(a)(5)(iii) and §303.5(g). The federal regulations require that all private and public birthing hospitals participate in the voluntary paternity establishment services program. The Texas Legislature enacted Acts 1999, 76th Legislature, Chapter 556, (Senate Bill 368) which amends the Family Code and the Health and Safety Code to incorporate the requirements concerning paternity establishment which are required by federal law and to require birthing center administrators to comply.

This amendment requires birthing centers to comply with Health and Safety Code, §192.012 relating to record of acknowledgment of paternity and the rules of the Office of the Attorney General found at Title 1, Texas Administrative Code, Chapter 55, Subchapter J (relating to Voluntary Paternity Establishment). There is no express entity identified in federal or state law, federal regulations, or the rules of the Office of the Attorney General which would be responsible for insuring enforcement of the law and rules. Therefore, this amendment is being added to the birthing center rules as a condition of licensure in order to ensure a birthing center's compliance with the law and rules and to provide a mechanism for sanctioning a birthing center that fails to comply with the requirements relating to voluntary paternity establishment services. Compliance will be determined during licensing surveys and inspections.

Jann Melton-Kissel, Bureau of Licensing and Compliance, has determined that for the first five years the proposed section is in effect, there may be no fiscal implications for state or local governments as a result of enforcing or administering this section. Since the department already surveys and inspects birthing centers for compliance with other laws and rules, this section will not place any additional fiscal burden on state government.

Ms. Melton-Kissel also has determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of enforcing the section will be to ensure compliance by birthing centers with requirements relating to voluntary paternity establishment services. There will be an effect on small businesses which are birthing centers if the birthing center is sanctioned by the department for noncompliance. There will be economic costs to persons who are required to comply with the section as proposed if the birthing center is sanctioned for noncompliance with the rule. The effect on small businesses and the economic costs to persons will be the payment of any administrative penalty or the costs of defending against the imposition of any sanction. There are no means of determining those costs at this time since penalties and costs may vary greatly. Although there will be fiscal implications relating to the operation of paternity establishment services, those implications arise because of the application of the federal and state law and the rules of the Office of the Attorney General, not because of this department's rule. Therefore, those implications are not discussed here. There will be no effect on local employment.

Comments may be submitted to Tom Camp, Chief, Bureau of Licensing and Compliance, Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756, (512) 834-4503. Comments on the proposed section will be accepted for 30 days following publication in the Texas Register .

The amendment is proposed under the Health and Safety Code, §244.009, which requires the Texas Board of Health (board) to adopt rules under the Texas Birthing Center Licensing Act including rules relating to the provision and coordination of services; the Family Code §160.215 which allows the department to adopt rules to implement the requirements relating to acknowledgment or denial of paternity; the Health and Safety Code, §191.003, which allows the board to adopt necessary rules relating to vital statistics; and the Health and Safety Code, §12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and commissioner of health.

The amendment affects the Health and Safety Code, Chapters 191-192 and 244, and the Family Code, Chapter 160.

§133.55.Other State and Federal Compliance Requirements.

(a)-(k)

(No change.)

(l)

A birthing center must provide voluntary paternity establishment services in accordance with:

(1)

the Health and Safety Code, §192.012, Record of Acknowledgment of Paternity; and

(2)

the rules of the Office of the Attorney General found at 1 Texas Administrative Code, Chapter 55, Subchapter J (relating to Voluntary Paternity Establishment).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 10, 2000.

TRD-200000144

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 27, 2000

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


Chapter 143. MEDICAL RADIOLOGIC TECHNOLOGISTS

25 TAC §§143.2, 143.16, 143.17, 143.19, 143.20

The Texas Department of Health (department) proposes amendments to §§143.2, 143.16, 143.17, 143.19 and 143.20 concerning the regulation and certification of persons performing radiologic procedures. The amendments cover definitions; dangerous or hazardous procedures; mandatory training programs for non-certified technicians, hardship exemptions and alternative training requirements.

The proposed amendments will add a definition for pediatric; add pediatric radiography to the list of dangerous or hazardous procedures; change the total number of hours needed to complete the mandatory training program for non-certified technicians; add a new hardship exemption for x-ray equipment operators in a physician's office who are participating in a new alternate training program; make changes to the existing training requirements for podiatric medical assistants; and add alternate training to be completed under a Texas Medical Association approved program for x-ray operators in a physician's office.

Jann Melton-Kissel, Director of Budgets, Health Care Quality and Standards, has determined that for each of the first five years the sections will be in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the sections as proposed.

Ms. Melton-Kissel has determined that for each year of the first five years the sections as proposed are in effect, the public benefit anticipated as a result of enforcing the sections as proposed will be to assure that the public is protected from the harmful effects of radiation used for medical purposes by regulating persons who perform radiologic procedures.

There could be a varying impact on micro businesses, small businesses, and hospitals which are required to comply with the sections. Pediatric radiography, excluding extremities, is being identified as a hazardous procedure which may only be performed by a practitioner, medical radiologic technologist, or by a registered nurse or physicians assistant who has completed specific training. If the businesses do not already employ or engage such persons to perform pediatric radiography, then there may be additional costs. However, a practitioner may perform the procedure and the rules allow pediatric radiography to be performed with the appropriate documentation if an emergency condition exists resulting in no additional cost.

There are no anticipated economic costs to persons who are required to comply with the sections as proposed. The anticipated effect on local employment will be that only qualified persons will be allowed to perform a dangerous or hazardous radiologic procedure.

Comments on the proposal may be submitted to Jeanette Hilsabeck, Administrator, Medical Radiologic Technologist Certification Program, Professional Licensing and Certification Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756-3183, (512) 834-6617; FAX (512) 834-6677. Comments will be accepted for 30 days following publication of this proposal in the Texas Register .

The amendments are proposed under the Medical Radiologic Technologist Certification Act, §601.052, Texas Occupations Code, which provides the Texas Board of Health (board) with the authority to adopt rules necessary to implement the Act; and the Texas Health and Safety Code §12.001, which provides the 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.

These proposed amendments implement the Medical Radiologic Technologist Certification Act, Title 3, Texas Occupations Code, Chapter 601.

§143.2. Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1)-(37)

(No change.)

(38)

Pediatric--A person within the age range of fetus to age 18 or otherwise required by Texas Law, when the growth and developmental processes are generally complete. These rules do not prohibit a practitioner taking into account the individual circumstances of each patient and determining if the upper age limit requires variation by not more than two years.

(39)

[ (38) ] Physician--A person licensed by the Board of Medical Examiners (BME) to practice medicine.

(40)

[ (39) ] Physician assistant--A person licensed as a physician assistant by the Texas State Board of Physician Assistant Examiners.

(41)

[ (40) ] Podiatrist--A person licensed by the Board of Podiatry Examiners (BPE) to practice podiatry.

(42)

[ (41) ] Portable x-ray equipment--Equipment designed to be hand-carried.

(43)

[ (42) ] Practitioner--A doctor of medicine, osteopathy, podiatry, dentistry, or chiropractic who is licensed under the laws of this state and who prescribes radiologic procedures for other persons for medical reasons.

(44)

[ (43) ] Radiation--Ionizing radiation in amounts beyond normal background levels from sources such as medical and dental radiologic procedures.

(45)

[ (44) ] Radiologic procedure--Any procedure or article intended for use in the diagnosis of disease or other medical or dental conditions in humans (including diagnostic x-rays or nuclear medicine procedures) or the cure, mitigation, treatment, or prevention of disease in humans that achieves its intended purpose through the emission of ionizing radiation.

(46)

[ (45) ] Registered nurse--A person licensed by the Board of Nurse Examiners (BNE) to practice professional nursing.

(47)

[ (46) ] Registry--A list of names and other identifying information of non-certified technicians.

(48)

[ (47) ] Sponsoring institution--A hospital, educational, or other facility, or a division thereof, that offers or intends to offer a course of study in medical radiologic technology.

(49)

[ (48) ] Supervision--Responsibility for and control of quality, radiation safety and protection, and technical aspects of the application of ionizing radiation to human beings for diagnostic and/or therapeutic purposes.

(50)

[ (49) ] Temporary certification, general or limited--An authorization to perform radiologic procedures for a limited period, not to exceed one year.

(51)

[ (50) ] TRCR--Texas Regulations for the Control of Radiation, 25 Texas Administrative Code, Chapter 289 of this title (relating to Texas Regulations for the Control of Radiation). The regulations are available from the Standards Branch, Bureau of Radiation Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3189 (phone 1-512-834-6688).

§143.16. Dangerous or Hazardous Procedures.

(a)-(b)

(No change.)

(c)

Hazardous procedures identified. Unless otherwise noted, the list of hazardous procedures which may only be performed by a practitioner or MRT are:

(1)-(9)

(No change.)

(10)

pediatric radiography, excluding extremities, unless performed by an RN or physician assistant who is appropriately trained, as set out in §143.17 or §143.20 of this title. If an emergency condition exists which threatens serious bodily injury, protracted loss of use of a bodily function or death of a pediatric patient unless the procedure is performed without delay, a pediatric radiographic procedure is also excluded. The emergency condition must be documented by the ordering practitioner in the patient's clinical record and the record must document that a regularly scheduled MRT, LMRT, RN or physician assistant is not reasonably available to perform the procedure.

(d)-(j)

(No change.)

§143.17. Mandatory Training Programs for Non-Certified Technicians.

(a)-(c)

(No change.)

(d)

Training requirements. As of July 1, 2000, in [ In ] order to successfully complete a program, each student must complete the following minimum training:

(1)

prerequisite recommended for admission include high school graduation or general equivalency diploma; certified medical assistant; graduation from a medical assistant program; or six months full time patient care experience, otherwise determined by the practitioner.

(2)

[ (1) ] courses which are fundamental to diagnostic radiologic procedures:

(A)

radiation safety and protection for the patient, self and others-- 22 [ 40 ] classroom hours;

[(B)

radiographic equipment, including safety standards, operation and maintenance--25 classroom hours;]

(B)

[ (C) ] image production and evaluation-- 24 [ 25 ] classroom hours; and

(C)

radiographic equipment maintenance and operation--16 classroom hours which includes at least six hours of quality control, darkroom, processing, and Texas Control of Radiation Regulations; and

[(D)

methods of patient care and management essential to radiologic procedures, excluding CPR, BCLS, ACLS and similar subjects--eight classroom hours; and]

(3)

[ (2) ] one or more of the following units of applied human anatomy and radiologic procedures of the:

(A)

skull (five views: Caldwell, Townes, Waters, AP/PA, and lateral)-- 10 [ 16 ] classroom hours;

(B)

chest-- eight [ 15 ] classroom hours;

(C)

spine-- eight [ 20 ] classroom hours;

(D)

abdomen, not including any procedures utilizing contrast media-- four [ eight ] classroom hours;

(E)

upper extremities-- 14 [ 15 ] classroom hours;

(F)

lower extremities-- 14 [ 15 ] classroom hours; and/or

(G)

podiatric--five classroom hours.

(e)-(i)

(No change.)

§143.19. Hardship Exemptions.

(a)

(No change.)

(b)

General.

(1)

(No change.)

(2)

The applicant must demonstrate a hardship as described in subsection (c) (5) [ (4) ] of this section in employing an MRT, LMRT, or NCT.

(3)-(4)

(No change.)

(c)

Required application materials.

(1)-(4)

(No change.)

(5)

The application shall be accompanied by one or more of the following:

(A)-(J)

(No change.)

(K)

if the applicant employs for the purpose of performing radiologic procedures, a person who is registered to take the Texas Medical Association's Physician's Training Program for X-ray Operators approved by the department under §143.20 of this title, [ had at least one year of experience performing radiologic procedures and who, by July 31, 1999, has completed four hours of study in radiation safety and protection in a program approved by the department under §143.9 of this title, §143.11 of this title (relating to Continuing Education Requirements), §143.17 of this title, or §143.20 of this title, or provided by a person who meets the requirements of §143.9(h)(1)-(2) of this title, excluding the phrase, "the subjects assigned." This subparagraph shall expire October 1, 1999. ] a sworn affidavit indicating the [ The ] following items must be submitted:

(i)

[ a sworn affidavit indicating ] the name(s) , date of birth, and social security number of the person(s) who will perform radiologic procedures pursuant to this hardship exemption;

(ii)

the name of the facility the training program will be taken, the date the program will begin and the anticipated date of completion [ a sworn affidavit or other documentation stating the person(s) had at least one year of experience performing radiologic procedures between January 1, 1993, and July 1, 1998 ];

(iii)

the name(s) of the certified medical radiologic technologist instructor meeting the requirements set out in §143.17(c) of this title [ an original verification statement, certificate of completion or transcript indicating that the person(s) named in the hardship exemption application has completed or will complete by July 31, 1999, a four-hour course of study in radiation safety and protection. Documentation of completion of the four-hour course of study in radiation safety and protection shall be submitted prior to placement on the department's registry under §143.18 of this title (relating to the Registry of Non-Certified Technicians) ];

(iv)

the name(s) of the company and the name of the person(s) who will be the designated equipment applications specialist knowledgeable of the specific equipment to be utilized [ if the applicant is a practitioner or FQHC, proof that the person(s) was registered in accordance with rules adopted under §2.08 of the Act at the time of application under this section ]; and

(v)

a list of the anatomical categories to be included in the training. [ an acknowledgment that the persons performing radiologic procedures, as an alternative to training, will take and pass the core section of the limited certificate examination, as described in §143.8 of this title (relating to Examinations) covering radiation protection, radiographic equipment operation and maintenance, image production and evaluation, and patient care and management. An examination candidate must pass the examination on or before July 1999. A person who passes the examination described in this clause shall be included on the department's registry under §143.18 of this title. A person listed on the registry is not required to complete the training described in §143.17 of this title or §143.20 of this title. A person who does not pass the examination by the third attempt will be notified by the department that the person may no longer perform radiologic procedures under this hardship exemption. The following shall apply to this hardship exemption and the special examination administered under this clause: ]

[(I)

the passing score shall be an unscaled 55;]

[(II)

a schedule of examinations indicating the dates, locations, fees, examination application procedures, and application deadlines will be provided to the person(s) named on the hardship exemption application as person(s) performing radiologic procedures;]

[(III)

a maximum of three examination attempts shall be allowed for each person covered by the hardship exemption;]

[(IV)

all examination application fees are non-refundable and must be paid by the examination application deadlines established by the department. A person who applied for a specific examination and who failed to appear for the examination shall forfeit the examination fee, even if notification is made prior to the examination that the person will be unable to take the examination;]

[(V)

applications under this hardship exemption may be postmarked up to and including October 31, 1998; and]

[(VI)

in no event shall any letters of exemption issued under this subparagraph extend beyond the expiration date of October 1, 1999. If the person(s) performing radiologic procedures does not apply for the examination to be administered on July 1999, the hardship exemption will expire on the examination application deadline which is two months prior to that examination.]

(6)-(7)

(No change.)

(d)-(g)

(No change.)

§143.20. Alternate Training Requirements.

(a)

Purpose. The purpose of this section is to set out the minimum standards for registered nurses (RNs), physician assistants , [ and ] podiatric medical assistants (PMAs) and x-ray equipment operators in a physician's offices .

(b)

Instructor direction required. All hours of the training program completed for the purposes of this section must be live and interactive and directed by an approved instructor. Distance learning activities and audiovisual teleconferencing may be utilized, provided these include two-way, interactive communications which are broadcast or transmitted at the actual time of occurrence. Appropriate on-site supervision of persons participating in the distance learning activities or teleconferencing shall be provided by the approved training program. No credit will be given for training completed by self-directed study or correspondence. The provisions of this subsection shall not apply to the out of classroom training requirements for podiatric medical assistants and x-ray equipment operators in a physician's offices.

(1)-(3)

(No change.)

(c)

(No change.)

(d)

Training requirements for registered nurses and physician assistants. A training program preparing RNs and physician assistants to perform radiologic procedures shall be designed to build on the health care knowledge base and skills acquired through completion of an educational program that qualifies the person for licensure as an RN or physician assistant. The training shall consist of:

(1)

(No change.)

(2)

one or more of the following units of classroom instruction in radiologic procedures:

(A)

(No change.)

(B)

spine (non-pediatric)-- ten [ 10 ] classroom hours;

(C)-(D)

(No change.)

(3)

(No change.)

(e)

Training requirements for podiatric medical assistants PMAs .

(1)

In order to successfully complete a program, a PMA must complete the following training:

(A)

radiation safety and protection for the patient, self, and others-- five [ ten ] classroom hours and five out of classroom hours ;

(B)

radiographic equipment used in podiatric medicine, including safety standards, operation, and maintenance-- one [ three ] classroom hour [ hours ] and two out of classroom hours ;

(C)

podiatric radiologic procedures, imaging production and evaluation-- one [ five ] classroom hour [ hours ] and four out of classroom hours ; and

(D)

methods of patient care and management essential to radiologic procedures, excluding CPR, BCLS, ACLS and similar subjects-- one [ two ] classroom hour [ hours ] and one out of classroom hour .

(2)

(No change.)

(3)

The out of classroom training hours require successful completion of learning objectives approved by the department as verified by the supervising podiatrist.

(f)

Training requirements for an x-ray equipment operator in a physician's offices.

(1)

In order to successfully complete a program, a x-ray equipment operator in a physician's office must complete the Texas Medical Association's Physician's Training Program for X-ray Operators.

(2)

Successful completion of the x-ray operators training program allows the x-ray operator to perform radiologic procedures only under the instruction or direction of a physician.

(g)

[ (f) ] Application procedures for training programs. The Texas Department of Health (department) shall use the same process as described in §143.17(e) of this title.

(h)

[ (g) ] Application materials. The department shall require the same materials as described in §143.17(f) of this title.

(i)

[ (h) ] Application approval. The department shall use the same process as described in §143.17(g) of this title.

(j)

[ (i) ] Application processing. The department shall use the same process as described in §143.17(h) of this title.

(k)

[ (j) ] Renewal. The department shall use the same process as described in §143.17(i) of this title.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 14, 2000.

TRD-200000271

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 27, 2000

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


Chapter 146. TRAINING AND REGULATION OF PROMOTORAS

25 TAC §§146.1 - 146.10

The Texas Department of Health (department) proposes new §§146.1-146.10 relating to the creation of a voluntary training and regulation program for promotoras or community health workers. These rules are proposed to implement a portion of Chapter 857, 76th Legislature, 1999, creating Health and Safety Code Chapter 46, which creates the voluntary training and regulation program for promotoras or community health workers. Chapter 857 defines promotora or community health worker and outlines the promotora training program and the certification program for promotoras.

Specifically, the new sections are needed to accomplish the following: define the terms in the legislation, discuss the formation and actions of a permanent promotora/community health worker training and certification advisory committee, establish applicability, establish application requirements and procedures, propose the types of certificates and applicant eligibility criteria for promotoras or community health workers, instructors, and sponsoring institutions or training programs, establish the standards for the approval of curricula, describe the process for certificate issuance and renewal, and to establish continuing education requirements.

Concerning §146.1(1) the department would like comments on the department's proposed definition of promotora or community health worker. The proposed definition for promotora or community health worker is derived from the National Community Health Advisor Study, June 1998 which defines the seven core roles of a community health worker or promotora. The department has chosen to use this definition because of its inclusiveness.

Concerning §146.2(f) the department would like comments on the department's proposal to establish a permanent promotora/community health worker training and certification advisory committee. Chapter 857 creates a temporary Promotora Program Development Committee until September 1, 2001 whose function is to study the development of a framework for a promotora development program and to advise the department. The permanent promotora/community health worker training and certification advisory committee would review applications and recommend to the department qualifying applicants as sponsoring institutions, training instructors, or promotora or community heath workers. The committee would also recommend new or amended rules for the approval of the board.

Concerning §§146.4, 146.5, and 146.6 the department would like comments on application requirements and procedures for promotoras or community health workers, instructors, and sponsoring institutions or training programs.

Concerning §146.7(d), (e), and (f) the department would like comments on applicant eligibility and 146.7(b) regarding special provisions for persons who have performed previous promotora or community health worker services and special provisions for persons who have performed previous service as an instructor to promotoras or community health workers.

Concerning §146.8(b)(1) and (2) the department, in particular, would like comments on core competencies for promotoras and community health workers and the minimum number of clock hours of knowledge and skill-building per core competency.

Concerning §146.10 the department would like comments on continuing education requirements which a promotora or community health worker and instructor must complete to maintain certification.

Donna C. Nichols, MSEd, CHES, Director, Public Health Promotion, has determined that for each year of the first five year period the sections are in effect, there will be no fiscal implication to state or local government as a result of implementing these rules.

Donna C. Nichols, MSEd, CHES, Director, Public Health Promotion, has determined that for each of the first five years the sections are in effect relevant to the Training and Regulation of Promotoras, the public benefit anticipated will be a trained, competent lay community health workforce which can support local community health infrastructure and improve health status of community residents by helping individuals and groups take greater control over their health and their lives. There is no anticipated cost to small businesses or micro businesses since this is a voluntary training and certification program. There are no anticipated costs to persons or employees who are required to comply with the sections as proposed since this is a voluntary training and certification program. There will be no anticipated impact on local employment since this is a voluntary training and certification program.

Comments on the proposal may be submitted to Donna C. Nichols, MSEd, CHES, Director, Public Health Promotion (Suite M-631), Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756, (512) 458-7405. Comments will be accepted for 30 days following the date of publication of this proposal in the Texas Register .

The new sections are proposed under Health and Safety Code §46.003, which requires the Texas Board of Health (board) to adopt rules that provide minimum standards and guidelines, for issuance of a certificate to persons who act as promotoras; and §12.001 which provides the 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 proposed new rules affect Health and Safety Code Chapter 46.

§146.1.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1)

Administrator--The department employee designated as the administrator of regulatory activities authorized by the Chapter 46 of the Health and Safety Code.

(2)

Applicant--A promotora or community health worker who applies to the Texas Department of Health for a certificate of competence, a sponsoring institution or training program who applies to the department to offer training or an instructor who applies to the department to train promotoras or community health workers.

(3)

Board--The Texas Board of Health.

(4)

Certificate of Competence--A promotora or community health worker certificate issued by the Texas Department of Health.

(5)

Committee--The Promotora/Community Health Worker Training and Certification Advisory Committee established by §146.2 of this Chapter.

(6)

Department--The Texas Department of Health.

(7)

Instructor--An individual approved by the department to provide instruction and training in public health education to promotoras or community health workers in an educational setting.

(8)

Instructor certification--An authorization to train or instruct promotoras or community health workers in public health education services.

(9)

"Promotora" or "Community Health Worker"--A person who, with or without compensation: provides cultural mediation between communities and health and human service systems; informal counseling and social support; and culturally and linguistically appropriate health education; advocates for individual and community health needs; assures people get the health services they need; builds individual and community capacity; or provides direct health services.

(10)

Sponsoring institution or training program--An approved educational, community health, training program or other program or facility that offers or intends to offer promotora or community health worker training or instructor preparation.

(11)

Sponsoring institution or training program certification--An authorization to offer promotora or community health worker training or instructor preparation.

§146.2.Promotora/Community Health Worker Training and Certification Advisory Committee.

(a)

The committee. An advisory committee shall be appointed under and governed by this section.

(1)

The name of the committee shall be the Promotora/Community Health Worker Training and Certification Advisory Committee.

(2)

The committee is established under the Health and Safety Code, §11.016, which allows the Board of Health (board) to establish advisory committees.

(b)

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

(c)

Purpose. The purpose of the committee is to review applications and to recommend to the department qualifying applicants as sponsoring institutions, training instructors or as promotoras or community health workers. The committee shall also recommend new or amended rules for the approval of the board.

(d)

Tasks.

(1)

The committee shall advise the board concerning rules to implement standards adopted under Chapter 46 relating to the training and regulation of persons working as promotoras or community health workers.

(2)

The committee shall recommend to the department qualifying sponsoring institutions or training programs, instructors, and promotoras or community health workers.

(3)

The committee shall carry out any other tasks given to the committee by the board.

(e)

Review and duration. By November 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.

(f)

Composition. The committee shall be composed of nine members appointed by the board. The composition of committee shall include:

(1)

two certified promotoras or community health workers or the equivalent;

(2)

one public member;

(3)

one member from the Texas Higher Education Coordinating Board;

(4)

one licensed physician, physician assistant or nurse practitioner who practices in a community setting and has experience in working with promotoras or community health workers;

(5)

two higher education faculty who have teaching experience in community health, public health or adult education; and

(6)

two members from the Texas Department of Health who have public health program or professional experience in working with promotoras or community health workers.

(g)

Terms of office. The term of office each member shall be four years, and may be reappointed.

(1)

If a vacancy occurs, a person shall be appointed to serve the unexpired portion of that term.

(2)

Members shall be appointed for staggered terms so that the terms of three members will expire on January 1 of each even-numbered year.

(h)

Officers. The committee shall elect a presiding officer and an assistant presiding officer at its first meeting after August 31st of each year.

(1)

Each officer shall serve until the next regular election of officers.

(2)

The presiding officer shall preside at all committee meetings at which he or she is in attendance, call meetings in accordance with this section, appoint subcommittees of the committee as necessary, and cause proper reports to be made to the board. The presiding officer may serve as an ex-officio member of any subcommittee of the committee.

(3)

The assistant presiding officer shall perform the duties of the presiding officer in case of the absence or disability of the presiding officer. In case the office of presiding officer becomes vacant, the assistant presiding officer will serve until a successor is elected to complete the unexpired portion of the term of the office of presiding officer.

(4)

A vacancy which occurs in the offices of presiding officer or assistant presiding officer may be filled at the next committee meeting.

(5)

A member shall serve no more than two consecutive terms as presiding officer and/or assistant presiding officer.

(6)

The committee may reference its officers by other terms, such as chairperson and vice-chairperson.

(i)

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

(1)

A meeting may be called by agreement of Texas Department of Health (department) staff and either the presiding officer or at least three members of the committee.

(2)

Meeting arrangements shall be made by department staff. Department staff shall contact committee members to determine availability for a meeting date and place.

(3)

Each meeting of the committee shall be announced and conducted in accordance with the Open Meetings Act, Texas Government Code, Chapter 551.

(4)

Each member of the committee shall be informed of a committee meeting at least five working days before the meeting.

(5)

A simple majority of the members of the committee shall constitute a quorum for the purpose of transacting official business.

(6)

The committee is authorized to transact official business only when in a legally constituted meeting with quorum present.

(7)

The agenda for each committee meeting shall include an item entitled public comment under which any person will be allowed to address the committee on matters relating to business. The presiding officer may establish procedures for public comment, including a time limit on each comment.

(j)

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

(1)

A member shall notify the presiding officer or appropriate department staff if he or she is unable to attend a scheduled meeting.

(2)

It is grounds for removal from the committee if a member cannot discharge the member's duties for a substantial part of the term for which the member is appointed because of illness or disability, is absent from more than half of the committee and subcommittee meetings during a calendar year, or is absent from at least three consecutive committee meetings.

(3)

The validity of an action of the committee is not affected by the fact that it is taken when a ground for removal of a member exists.

(4)

The attendance records of the members shall be reported to the board. The report shall include attendance at committee and subcommittee meetings.

(k)

Staff. Staff support for the committee shall be provided by the department.

(l)

Procedures. Roberts Rules of Order, Newly Revised, shall be the basis of parliamentary decisions except where otherwise provided by law or rule.

(1)

Any action taken by the committee must be approved by a majority vote of the members present once quorum is established.

(2)

Each member shall have one vote.

(3)

A member may not authorize another individual to represent the member by proxy.

(4)

The committee shall make decisions in the discharge of its duties without discrimination based on any person's race, creed, gender, religion, national origin, age, physical condition, or economic status.

(5)

Minutes of each committee meeting shall be taken by department staff.

(A)

A draft of the minutes approved by the presiding officer shall be provided to the board and each member of the committee within 30 days of each meeting.

(B)

After approval by the committee, the minutes shall be signed by the presiding officer.

(m)

Subcommittees. The committee may establish subcommittees as necessary to assist the committee in carrying out its duties.

(1)

The presiding officer shall appoint members of the committee to serve on subcommittees and to act as subcommittee chairpersons. The presiding officer may also appoint nonmembers of the committee to serve on subcommittees.

(2)

Subcommittees shall meet when called by the subcommittee chairperson or when so directed by the committee.

(3)

A subcommittee chairperson shall make regular reports to the advisory committee at each committee meeting or in interim written reports as needed. The reports shall include an executive summary or minutes of each subcommittee meeting.

(n)

Statement by members. 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 what a statement or action is in pursuit of specific instructions from the board, department, or committee.

(o)

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

(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, anticipated activities of the committee for the next year, and any amendments to this section requested by the committee.

(2)

The report shall identify the costs related to the committee's existence, including the cost of agency staff time spent in support of the committee's activities.

(3)

The report shall cover the meetings and activities in the immediate preceding 12 months and shall be filed with the board each January. It shall be signed by the presiding officer and appropriate department staff.

§146.3.Applicability.

(a)

The purpose of this section is to describe who is eligible for this voluntary training and certification program under Health and Safety Code, Chapter 46.

(b)

The provisions of this chapter apply to any promotora or community health worker, and instructor, representing that he or she performs or will perform as a certified promotora or community health worker or, trains or will train promotoras or community health workers respectively. It also applies to any institution or training program that will sponsor or sponsors or provides training programs for promotoras or community health workers, who will expect certification under this chapter.

(c)

Nothing in this chapter requires promotoras or community health workers, instructors, sponsoring institutions or training programs to participate in this voluntary training and certification program.

§146.4.Application Requirements and Procedures for Promotoras or Community Health Workers.

(a)

Purpose. The purpose of this section is to set out the application procedures for certification of promotoras or community health workers.

(b)

Promotora or community health worker certificate of competence.

(1)

Unless otherwise indicated, an applicant must complete all required information and documentation on official department forms and submit the required information and documentation electronically or in hard copy to the department.

(2)

The department shall send a notice listing the additional materials required to an applicant whose application is incomplete. An application not completed within 30 days after the date of notice shall be invalid unless the applicant has advised the department of a valid reason for the delay.

(c)

Required application materials. The application form shall contain the following items:

(1)

specific personal data, social security number or status, birth date, current and previous promotora or community health worker activity (if applicable), and any educational and training background;

(2)

a statement that the applicant understands Health and Safety, Chapter 46 and this chapter and agrees to abide by them;

(3)

the applicant's permission to the department to seek any information or references which are material in determining the applicant's qualifications;

(4)

a statement that the applicant, if issued a certificate, shall return the certificate and identification card(s) to the department upon the expiration, revocation, or suspension of the certificate;

(5)

a statement that the applicant understands that the materials submitted become the property of the department and are nonreturnable (unless prior arrangements have been made);

(6)

a statement that the information in the application is truthful and that the applicant understands that providing false or misleading information which is material in determining the applicant's qualifications may result in the voiding of the application and failure to be granted any certificate or the revocation of any certificate issued;

(7)

a statement that the applicant shall advise the department of his or her current mailing address within 30 days of any changes of address;

(8)

the dated signature of the applicant certifying the truth of the information submitted; and

(9)

the signature of the instructor, sponsoring institution or training program indicating successful completion of the promotora or community health worker training and the date when the training was successfully completed.

(d)

Application approval.

(1)

The committee shall be responsible for reviewing all applications and recommending promotoras or community health workers to be certified to the administrator.

(2)

The administrator shall approve any application which is in compliance with this chapter and which properly documents applicant eligibility, unless the application is disapproved under the provisions of subsection (e) of this section.

(e)

Disapproved applications.

(1)

The department may disapprove the application if the applicant:

(A)

has not met the eligibility and application requirements set out in this section;

(B)

has not successfully completed an approved competency-based promotora or community health worker training;

(C)

has failed or refused to properly complete or submit any application form(s) or has knowingly presented false or misleading information on the application form, or any other form or documentation required by the department to verify the applicant's qualifications for certification;

(D)

has engaged in unprofessional conduct; or

(E)

has developed an incapacity, which in accordance with the Americans with Disabilities Act, prevents the practice of promotora or community health worker service with reasonable skill, competence, and safety to the public as the result of:

(i)

an illness;

(ii)

drug or alcohol dependency; or

(iii)

another physical or mental condition or illness;

(2)

If the administrator determines that the application should not be approved, the administrator shall give the applicant written notice of the reason for the disapproval and of the opportunity for re-application;

(3)

The applicant whose application has been disapproved under paragraph one of this subsection shall be permitted to reapply after a period of not less than six months from the date of the disapproval and shall submit a current application, the certification fee and proof, satisfactory to the department, of compliance with the then current requirements of this chapter and the provisions of the Act.

(f)

Application processing. A written notice stating that the application has been approved may be sent in lieu of the notice of acceptance of a complete application. The following periods of time shall apply from the date of receipt of an application until the date of issuance of a written notice that the application is complete and accepted for filing or that the application is deficient and additional specific information is required:

(1)

letter of acceptance of application for certification--30 days.

(2)

letter of application deficiency--30 days.

§146.5.Application Requirements and Procedures for Instructors.

(a)

Purpose. The purpose of this section is to set out the application procedure for certification of instructors.

(b)

Instructor certificate.

(1)

Unless otherwise indicated, an applicant must complete all required information and documentation of credentials on official department forms and submit the required information and documentation electronically or in hard copy to the department.

(2)

The department shall send a notice listing the additional materials required to an applicant whose application is incomplete. An application not completed within 30 days after the date of notice shall be invalid unless the applicant has advised the department of a valid reason for the delay.

(c)

Required application materials. The application form shall contain the following items:

(1)

specific personal data, social security number or status, birth date, current and previous places of employment, other state licences and certificates held, and educational and training background;

(2)

a statement that the applicant understands the Health and Safety Code, Chapter 46 and this chapter and agrees to abide by them;

(3)

the applicant's permission to the department to seek any information or references which are material in determining the applicant's qualifications;

(4)

a statement that the applicant, if issued a certificate, shall return the certificate and identification card(s) to the department upon the expiration, revocation, or suspension of the certificate;

(5)

a statement that the applicant understands that the materials submitted become the property of the department and are nonreturnable (unless prior arrangements have been made);

(6)

a statement that the information in the application is truthful and that the applicant understands that providing false or misleading information which is material in determining the applicant's qualifications may result in the voiding of the application and failure to be granted any certificate or the revocation of any certificate issued;

(7)

a statement that the applicant shall advise the department of his or her current mailing address within 30 days of any changes of address;

(8)

the dated signature of the applicant certifying the truth of the information submitted; and

(9)

the signature of the executive officer of a sponsoring institution or training program which attests to the competence of the instructor.

(d)

Application approval.

(1)

The committee shall be responsible for reviewing all applications and recommending those to be certified by the administrator.

(2)

The administrator shall approve any application which is in compliance with this chapter and which properly documents applicant eligibility, unless the application is disapproved under the provisions of subsection (e) of this section.

(e)

Disapproved applications.

(1)

The department may disapprove the application if the applicant:

(A)

has not met the eligibility and application requirements set out in this chapter;

(B)

does not have the appropriate training or experience to qualify as an instructor;

(C)

has failed or refused to properly complete or submit any application form(s) or has knowingly presented false or misleading information on the application form, or any other form or documentation required by the department to verify the applicant's qualifications for certification;

(D)

has engaged in unprofessional conduct; or

(E)

has developed an incapacity, and in accordance with the Americans with Disabilities Act, that prevents the instructor from practicing with reasonable skill, competence, and safety to the public as the result of:

(i)

illness;

(ii)

drug or alcohol dependency; or

(iii)

another physical or mental condition or illness;

(2)

If the administrator determines that the application should not be approved, the administrator shall give the applicant written notice of the reason for the disapproval and of the opportunity for re-application;

(3)

The applicant whose application has been disapproved under paragraph one of this subsection shall be permitted to reapply after a period of not less than six months from the date of the disapproval and shall submit a current application satisfactory to the department, of compliance with the then current requirements of this chapter and the provisions of the Health and Safety Code, Chapter 46.

(f)

Application processing. A written notice stating that the application has been approved may be sent in lieu of the notice of acceptance of a complete application. The following periods of time shall apply from the date of receipt of an application until the date of issuance of a written notice that the application is complete and accepted for filing or that the application is deficient and additional specific information is required:

(1)

letter of acceptance of application for certification--130 days.

(2)

letter of application deficiency--30 days.

§146.6.Application Requirements and Procedures for Sponsoring Institutions and Training Programs.

(a)

Purpose. The purpose of this section is to set out the application procedures for certification of sponsoring institutions and training programs.

(b)

Sponsoring institution or training program certificate.

(1)

Unless otherwise indicated, an applicant must complete all required information and documentation of credentials on official department forms and submit the required information and documentation electronically or in hard copy.

(2)

The department shall send a notice listing the additional materials required to an applicant whose application is incomplete. An application not completed within 30 days after the date of notice shall be invalid unless the applicant has advised the department of a valid reason for the delay.

(c)

Required application materials. The application form shall contain the following items:

(1)

specific organizational data, current and previous experience with training or sponsoring training for promotoras or community health workers, educational and training qualifications of staff, accrediting information, curricula and collateral materials, workplace assurances, registration policies and procedures for promotoras or community health workers.

(2)

a statement that the applicant understands Health and Safety Code, Chapter 46 and this chapter and agrees to abide by them;

(3)

the applicant's permission to the department to seek any information or references which are material in determining the applicant's qualifications;

(4)

a statement that the applicant, if issued a certificate, shall return the certificate(s) to the department upon the expiration, revocation, or suspension of the certificate(s);

(5)

a statement that the applicant understands that the materials submitted become the property of the department and are nonreturnable (unless prior arrangements have been made);

(6)

a statement that the information in the application is truthful and that the applicant understands that providing false or misleading information which is material in determining the applicant's qualifications may result in the voiding of the application and failure to be granted any certificate or the revocation of any certificate issued;

(7)

a statement that the applicant shall advise the department of the organization's current mailing address within 30 days of any changes of address; and

(8)

the dated signature of the chief executive officer certifying the truth of the information submitted.

(d)

Application approval.

(1)

The committee shall be responsible for reviewing all applications and recommending those to be certified to the administrator.

(2)

The administrator shall approve any application which is in compliance with this chapter and which properly documents applicant eligibility, unless the application is disapproved under the provisions of subsection (e) of this section.

(e)

Disapproved applications.

(1)

The department may disapprove the application if the applicant:

(A)

has not met the eligibility and application requirements set out in this chapter; or

(B)

has failed or refused to properly complete or submit any application form(s) or has knowingly presented false or misleading information on the application form, or any other form or documentation required by the department to verify the applicant's qualifications for certification.

(2)

If the administrator determines that the application should not be approved, the administrator shall give the applicant written notice of the reason for the disapproval and of the opportunity for re-application;

(3)

The applicant whose application has been disapproved under paragraph one of this subsection shall be permitted to reapply after a period of not less than six months from the date of the disapproval and shall submit a current application, the certification fee and proof, satisfactory to the department, of compliance with the then current requirements of this chapter and the provisions of the Act.

(f)

Application processing. A written notice stating that the application has been approved may be sent in lieu of the notice of acceptance of a complete application. The following periods of time shall apply from the date of receipt of an application until the date of issuance of a written notice that the application is complete and accepted for filing or that the application is deficient and additional specific information is required:

(1)

letter of acceptance of application for certification--30 days.

(2)

letter of application deficiency--30 days.

§146.7.Types of Certificates and Applicant Eligibility.

(a)

Purpose. The purpose of this section is to set out the types of certificates issued and the qualifications of applicants.

(1)

The Texas Department of Health (department) shall issue promotora or community health worker certificates of competence, instructor certificates, and sponsoring institutions or training program certificates.

(2)

Certificates shall be signed by the commissioner of the department and presiding officer of the advisory committee. Identification cards issued to promotoras/community health workers and instructors shall bear the signature of the commissioner.

(3)

Any certificate or identification card(s) issued by the department remains the property of the department and shall be surrendered to the department on demand.

(4)

A promotora or community health worker and instructor shall carry the original identification card. A sponsoring institution or training program shall display the original certificate at the training or educational site. Photocopies shall not be carried or displayed.

(5)

A person certified as a promotora or community health worker shall only allow his or her certificate to be copied for the purpose of verification by employers, professional organizations, and third party payors for credentialing and reimbursement purposes. Other persons and/or agencies may contact the administrator in writing or by phone to verify certification.

(6)

No one shall display, present, or carry a certificate or an identification card which has been altered, photocopied, or otherwise reproduced.

(7)

No one shall make any alteration on any certificate or identification card issued by the department.

(b)

Special provisions for persons who have performed promotora or community health worker services during the three year period, preceding the effective date of these rules Upon submission of the application forms by the practicing promotora or community health worker and upon approval by the department, the department shall issue a certificate of competence to a person who has performed promotora or community health services for not less than 12 consecutive months, as documented on form(s) prescribed by the department.

(c)

Special provisions for persons who are nationally certified health education specialists in good standing and for promotoras or community health workers who have acted as supervisors, have experience in performing promotora or community health services and have attended a competency-based training program within the three years from the date these rules are final. Upon submission of the application forms by an instructor or certified health education specialist and upon approval by the department, the department shall issue an instructor certificate to a person who is certified by the National Commission for Health Education Credentialing, Inc. and to a promotora or community health worker who meets the above qualifications.

(d)

Minimum eligibility requirements for promotora or community health worker certification. The following requirements apply to all individuals applying for certification who do not meet the requirements of subsection (b) of this section:

(1)

attainment of 18 years of age or an eligible and informed minor as determined by the committee;

(2)

freedom from physical or mental impairment, in accordance with the Americans with Disabilities Act, interferes with the performance of duties or otherwise constitutes a hazard to the health or safety of clients;

(3)

submission of a satisfactory completed application on a form supplied by the department; and

(4)

successful completion of an approved competency-based training program.

(e)

Minimum eligibility requirements for instructor certification. The following requirements apply to all individuals applying for certification who do not meet the requirements of subsections (c) of this section:

(1)

graduation from high school or its equivalent as determined by the sponsoring institution or the training program or six years of continuous service as a promotora or community health worker;

(2)

attainment of 18 years of age or an eligible and informed minor as determined by the committee;

(3)

attendance at an instructor/trainer program by an approved sponsoring institution or training program;

(4)

freedom from physical or mental impairment, which in accordance with the Americans with Disabilities Act, interferes with the performance of duties or otherwise constitutes a hazard to the health or safety of participants; and

(5)

submission of a satisfactory completed application on a form supplied by the department.

(f)

Minimum eligibility requirements for sponsoring institution or training program certification. The following requirements apply to all institutions or programs applying for certification:

(1)

usage of an approved curriculum for promotora or community health worker training, instructor certification and/or for continuing education of promotoras/community health workers and instructors that meets the standards and guidelines established by the department and as set forth in §146.8 of this chapter; and

(2)

submission of a satisfactory completed application on a form supplied by the department.

§146.8.Standards for the Approval of Curricula.

(a)

Purpose. The purpose of this section is to establish the minimum standards for approval of curricula and programs to train persons to perform promotora or community health worker services and to quality for the certificate of competence.

(b)

All curricula to be used and programs developed to train individuals to perform promotora or community health worker services or to act as instructors must:

(1)

assure that the eight core competencies, identified in the National Community Health Advisor Study, June 1998 for promotoras or community health workers, including communication, interpersonal, service coordination, capacity-building, advocacy, teaching and organizational skills and knowledge base are addressed;

(2)

include at a minimum five clock hours of knowledge and skill-building per core competency for promotoras or community health workers and include at a minimum 40 clock hours for instructor training;

(3)

evaluate and document the acquisition of knowledge and mastery of skills by the individual and the success of the training program according to the performance measures framework established within the National Community Health Advisor Study, June 1998;

(4)

be approved by the department and be offered within the geographic limits of the State of Texas;

(5)

be submitted to the department at least ten weeks prior to the starting date of the program to be offered by a sponsoring institution;

(6)

be submitted to the department along with supporting materials in a three-ring binder with all pages clearly legible and consecutively numbered with a table of contents and divided with tabs identified to correspond to the core competencies, including evaluation materials and other programmatic information and assurances required within this section;

(7)

provide a list of approved instructors, facilities and locations for the training program;

(8)

provide a yearly calendar of scheduled training events by dates, times and locations;

(9)

identify the method for recruiting persons to the program;

(10)

report the names of individuals to the department who have successfully completed the training program within 30 days of program completion;

(11)

maintain an accurate record of each person's attendance and participation for not less than five years;

(12)

be live and interactive and directed by an approved instructor; and

(13)

focus on the seven core roles of the promotora or community health worker as noted in the definition of promotora or community health worker.

§146.9.Certificate Issuance and Renewals.

(a)

Purpose. The purpose of this section is to set out the rules for issuing certificates and certificate renewal.

(b)

Issuance of certificates.

(1)

Upon approval of the application, the department shall issue the promotora or community health worker, instructor or sponsoring institution or training program a certificate with an expiration date and a certificate number. An identification card shall be included for the promotora or community health worker and the instructor.

(2)

The department shall replace a lost, damaged, or destroyed certificate or identification card upon written request.

(c)

Certificate renewal. Each promotora or community health worker, instructor and sponsoring institution or training program shall renew the certificate biennially.

(1)

Each promotora or community health worker, instructor and sponsoring institution is responsible for renewing the certificate before the expiration date. Failure to receive notification from the department prior to the expiration date will not excuse failure to file for renewal.

(2)

Each promotora or community health worker, instructor and sponsoring institution is responsible for completing a renewal form.

(3)

The department may not renew the certificate of a promotora or community health worker, instructor or sponsoring institution or training program who is in violation of the Act or this chapter at the time of renewal.

(d)

Expired certificates. The department, by certified mail using the last address known, shall attempt to inform each promotora or community health worker, instructor, or sponsoring institution or training program who has not timely renewed a certificate, after a period of more than 10 days after the expiration of the certificate that the certificate has automatically expired. A person or institution or training program whose certificate automatically expires is required to surrender the certificate and identification cards to the department.

(e)

Right to inspect. The department reserves the right to inspect facilities and documentation and to monitor sponsoring institutions, training programs, and instructors.

§146.10.Continuing Education Requirements.

(a)

Purpose. The purpose of this section is to establish the continuing education requirements which a promotora or community health worker and instructor must complete to maintain certification. The requirements are intended to maintain and improve the quality of professional services provided by promotoras or community health workers and instructors and to keep these individuals knowledgeable of current programs, techniques and practices. Approved sponsoring institutions and/or training programs can offer continuing education opportunities for promotoras or community health workers and instructors.

(b)

General. Continuing education requirements for recertification shall be fulfilled during each biennial renewal period. A promotora or community health worker must complete 16 contact hours of continuing education acceptable to the department during each biennial renewal period. An instructor must complete 16 contact hours of continuing education acceptable to the department during each biennial renewal period.

(1)

At least 50% of the required number of hours shall be satisfied by attendance and participation in instructor-directed activities.

(2)

No more than 50% of the required number of hours may be satisfied through verifiable independent self-study. These activities include reading materials, audio materials, audiovisual materials, or a combination thereof which meet the requirements set out in this section.

(3)

A contact hour shall be defined as 50 minutes of attendance and participation. One-half contact hour shall be defined as 30 minutes of attendance and participation during a 30-minute period.

(c)

Content. All continuing education activities should provide for the professional growth of the community health worker or promotora and instructor.

(1)

At least 50% of the required hours must be skill-based activities which are directly related to promotora or community health worker competencies.

(2)

The remaining 50% can be related to new knowledge base or programmatic activity.

(d)

Types of acceptable continuing education. Continuing education shall be acceptable if the experience or activity is at least 30 consecutive minutes in length and is offered by an approved sponsoring institution and/or training program.

(e)

Reporting of continuing education. Each promotora or community health worker and instructor is responsible for and shall complete and file with the department at the time of renewal a continuing education report form approved by the department listing the title, date and number of hours for each activity for which credit is claimed. The sponsoring institution or training program must provide a list of instructors, promotoras or community health workers who successfully complete continuing education contact hours within 30 days of the continuing education event.

(f)

Failure to complete the required continuing education.

(1)

An instructor, promotora or community health worker may request a one time only 120-day extension in order to complete the continuing education requirement.

(2)

An instructor, promotora, or community health worker who has not corrected the deficiency by the expiration date of the 120-day extension shall be considered as noncompliant with the renewal requirements and may no longer be certified under the expired certificate.

(3)

An instructor, promotora or community health worker may take the required training again to become an instructor, promotora or community health worker if deadlines for renewal were not met.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 14, 2000.

TRD-200000297

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 27, 2000

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


Chapter 221. MEAT SAFETY ASSURANCE

Subchapter B. MEAT AND POULTRY INSPECTION

25 TAC §§221.11 - 221.15

The Texas Department of Health (department) proposes amendments to existing §§221.11 - 221.14, and new §221.15 concerning meat and poultry inspection. Sections 221.11 - 221.14 are being proposed with changes, and are open for comment.

Section 221.11 adds the requirements that bison meat or buffalo meat must contain the words bison meat or buffalo meat on the label, as appropriate. Section 221.13 adds new definitions of alternate source food animals, bison, bison meat, buffalo, buffalo meat, commissioner, director, and grant of poultry/rabbit exemption; and requirements have been revised to include poultry/rabbit exemption. Section 221.13 is being amended to include new language under Administrative Penalties, Severity Level V, for any person failing to maintain records of custom operations. In §221.14, new language concerning the labeling of insecticides and rodenticides in or near food areas has been added.

Proposed changes to §§221.11 - 221.14 include new definitions to facilitate understanding of proposed new §221.15, establish the relationship between United States Department of Agriculture (USDA) officials and department officials, and incorporate new provisions required by HB 1145 as passed by the 75th Legislature. Other changes are proposed to clarify intent and to be consistent with changes in USDA regulations.

Pursuant to the Government Code, §2001.039 (formerly known as Rider 167), each state agency is required to review and consider for readoption, each rule adopted by that agency. The sections have been reviewed and the department has determined that reasons for adopting the sections continue to exist.

Proposed new §221.15 concerns rules for inspection of alternate source food animals, such as exotic wild game, quail, rabbits, ostrich, emus, and other related species. The proposed new sections are intended to establish standards for the sanitary handling of meat beginning with the slaughter and dressing operations. Effective control over sanitary dressing procedures is vital to the production of a clean, wholesome and safe product. It is the principal objective of sanitary dressing procedures to remove or clean the hide or skin and to remove the gastrointestinal tract and other internal organs with minimum contamination of the meat. The process is difficult enough in healthy animals. It is more complicated in animals with localized or generalized diseases, many of which are not detected until the dressing operation has been partially or entirely completed. Since inspectional procedures are designed to detect and remove these abnormal conditions and since it is not known with certainty, prior to inspection, all the animals which are affected, sanitary dressing procedures must be designed to eliminate common contact of skinned carcasses during dressing operations. The diseased animal may also pose a serious contamination threat and public health hazard via other tissues and fluids, such as bile, urine, milk and fluids and tissues from the reproductive tract. All diseased tissues and associated fluids (such as pus) must not be allowed to contaminate the product, workers, equipment or environment. When such contamination does occur, by accidental or other means, strict, careful correction must be immediately accomplished. This emphasizes the necessity of the plant and equipment being designed, constructed and arranged so that they are easy to clean. The slaughtering and viscera separation departments, in addition to handling a large volume and variety of clean and unclean materials, are supplied with abundant moisture and warm temperatures. This is ideal for rapid growth of microorganisms; therefore, strict sanitation and orderly handling of the product to ensure rapid chilling are essential.

Dr. Lee C. Jan, Director, Meat Safety Assurance Division, has determined that for each year of the first five-year period the sections are in effect there will be no fiscal implications to state or local governments as a result of enforcing or administering the rules as proposed.

Dr. Jan has also determined that for each year of the first five years the sections are in effect, the public benefit anticipated will be continued assurance of consumer safety by enforcing current USDA regulations and current and new Texas Administrative Code regulations relating to meat and poultry slaughter and processing. There will be no significant cost to micro or small businesses or individuals who are required to comply with these sections as proposed, due to the fact that proposed §221.15 codifies rules under which voluntary inspection of alternate species is currently carried out. There will be no impact on local employment.

Comments on the proposal may be submitted to Lee C. Jan, D.V.M., Director, Meat Safety Assurance Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, 512/719-0205. Comments will be accepted for 30 days following publication of the proposal in the Texas Register .

The amendments and new section are proposed under the Health and Safety Code, Chapter 433, which provides the department with the authority to adopt necessary regulations pursuant to the enforcement of Chapter 433; 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 amendments and new section affect the Health and Safety Code, Chapter 433; Chapter 12; and the Government Code, §2001.039, as passed by the 76th Legislature.

§221.11.Federal Regulations on Meat and Poultry Inspection.

(a)

The Texas Department of Health (TDH) adopts by reference the following federal requirements in the Code of Federal Regulations (CFR), as amended:

(1) - (17)

(No change.)

(18)

9 CFR, Part 319, "Definitions and standards of identity or composition" , TDH adds the following requirements:

(A)

products prepared from bison meat must contain the words "bison meat," "North American bison meat" or "Native American bison meat"; and

(B)

products prepared from buffalo meat must contain the words "water buffalo meat," or "Asian buffalo meat";

(19) - (31)

(No change.)

(32)

9 CFR, Part 381, "Poultry products inspection regulation" , except §381.10(a)(3) through §381.10(c) ;

(33) - (34)

(No change.)

(b)

(No change.)

§221.12.Meat and Poultry Inspection.

(a)

(No change.)

(b)

Definitions. The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise.

(1) - (2)

(No change.)

(3)

Alternate source food animals--Animals slaughtered and processed for food that are amenable to inspection under the Texas Meat and Poultry Inspection Act but are not amenable to inspection under the federal meat and poultry inspection acts.

(4)

Bison--An animal known by the scientific name Bovidae bison bison, commonly known as the North American prairie bison; or an animal known by the scientific name Bovidae bison athabascae, commonly known as the Canadian woods bison.

(5)

Bison meat The meat or flesh of a bison.

(6)

Buffalo--An animal known by the scientific name Bovidae bubalus bubalus, commonly known as the Asian Indian buffalo, water buffalo, or caraboa; an animal known by the scientific name Bovidae syncerus caffer, commonly known as the African buffalo or the Cape buffalo; an animal known by the scientific name Bovidae anoa depressicornis, commonly known as the Celebes buffalo; or an animal known by the scientific name Bovidae anoa mindorenis, commonly known as the Philippine buffalo or Mindoro buffalo.

(7)

Buffalo meat The meat or flesh of a buffalo.

(8)

[ (3) ] Change in ownership--

(A)

A change in the business organization operating the business which changes the legal entity responsible for operation of the business; or

(B)

any change in control of the business; or

(C)

any change in ownership of the business which requires a reapplication to the Texas Department of Health for a grant of inspection and/or custom exemption to operate.

(9)

Commissioner--Commissioner of Health. The term secretary when used in 9 CFR, for the purposes of this subchapter, shall mean commissioner.

(10)

[ (4) ] Custom operations--The slaughtering of livestock or the processing of an uninspected carcass or parts thereof for the owner of that livestock animal, carcass, or parts or the selling of livestock, inspected carcasses, or parts to be slaughtered and/or processed by the purchaser on premises owned or operated by the seller for the exclusive use of the purchaser.

(11)

[ (5) ] Custom processor--A person who prepares meat food products from uninspected livestock carcasses or parts thereof for the owner of those carcasses or parts [ or sells inspected carcasses or parts to be prepared by the purchaser on premises owned or operated by the seller for the exclusive use of the purchaser ].

(12)

[ (6) ] Custom slaughterer--A person who slaughters livestock for the owner of the livestock animal for the exclusive use of the owner of the livestock or sells livestock to be slaughtered by the purchaser on premises owned or operated by the seller, for the exclusive use of the purchaser of the livestock.

(13)

[ (7) ] Department--Texas Department of Health.

(14)

Director-- Meat Safety Assurance Division Director. The term Administrator, when used in 9 CFR, Parts 301-417, for the purpose of this section, shall mean director.

(15)

[ (8) ] Exotic animal--A member of a species of game not indigenous to this state, including an axis deer, nilgai [ nilga ] antelope, [ red sheep, ] or other cloven hoofed [ hooved ] ruminant animal.

(16)

[ (9) ] Federal regulations--The regulations adopted by reference by the department in §221.11 of this title (relating to Federal Regulations on Meat and Poultry Inspection).

(17)

[ (10) ] Feral swine--Nondomestic descendants of domestic swine that have either escaped or were released and subsequently developed survival skills necessary to thrive in the wild. Some are out-crossed with "Russian boar."

(18)

[ (11) ] Game animals--Wild animals that are hunted for food or recreational purposes and for which the hunter must obtain a hunting license from the Texas Parks and Wildlife Department prior to hunting such animals.

(19)

[ (12) ] Grant of custom exemption--An authorization from the department to engage in a business of custom slaughtering and/or processing livestock for the owner of the livestock for the owner's personal use.

(20)

[ (13) ] Grant of inspection--An authorization from the department to engage in a business subject to inspection under the Act.

(21)

Grant of poultry/rabbit exemption--An authorization from the department to engage in a very low volume business of slaughtering and processing poultry or rabbits of his/her own raising on his/her own property and personally distributing the carcasses and/or parts, provided that the following conditions are met:

(A)

the person slaughters 1000 but not more than 10,000 birds or rabbits in a calendar year;

(B)

the person does not buy and sell other poultry products (except live chicks);

(C)

only sound healthy poultry or rabbit are slaughtered and all processes and handling are conducted under sanitary standards and procedures resulting in poultry and rabbit products that are not adulterated;

(D)

the product bears the processor's name and address and the statement "Exempted P.L. 90-492"; and

(E)

the poultry is not a ratite.

(22)

[ (14) ] Heat-treated--Meat or poultry products that are ready-to-eat or have the appearance of being ready-to-eat because they received heat processing.

(23)

[ (15) ] Livestock--Cattle, sheep, swine, goats, horses, mules, other equines, poultry, domestic rabbits, exotic animals, or domesticated game birds.

(24)

[ (16) ] Person--Any individual, partnership, association, corporation, or unincorporated business organization.

(25)

[ (17) ] Poultry--A live or dead domesticated bird.

(26)

Ratite Poultry such as ostrich, emus, or rhea.

(c)

Grant of inspection , [ and/or ] custom exemption , and/or poultry/rabbit exemption .

(1)

Basic requirements.

(A)

A person shall not engage in a business subject to the Act unless that person has met the standards established by the Act, the federal regulations as adopted by the department , and these sections, and has obtained the appropriate grant of inspection , [ and/or ] custom exemption , and/or poultry/rabbit exemption issued by the department.

(B)

(No change.)

(C)

A person shall not engage in exempted poultry or rabbit slaughter and processing operations unless that person has met the standards established by the Act, the federal regulations, and these sections, and has obtained a grant of poultry/rabbit exemption issued by the department.

(2)

Application. To apply for a grant of inspection , [ and/or ] custom exemption , and/or poultry/rabbit exemption , a person shall complete department application forms which can be obtained from the Meat Safety Assurance Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756.

(3)

Duration. The applicant who has complied with the standards in the Act, the federal regulations, and these sections will receive a grant of inspection and/or custom exemption for an indefinite period subject to the denial, suspension, and revocation provisions in paragraph (6) [ (7) ] of this subsection.

(4) - (5)

(No change.)

[ (6)

Temporary exemption. Each person engaged in a business subject to the Act at the time of enactment of the Act may be allowed a maximum period of 36 months to provide the drawings (blueprints of the business's physical plant) as required by the federal regulations and to bring the facility into compliance with these drawings. This 36-month period will begin upon the date the department gives the person official notice by certified mail that the person has 36 months to provide the drawings. ]

(6)

[ (7) ] Denial, suspension and revocation.

(A)

The department may deny a grant of inspection and/or custom exemption to any applicant who does not comply with the standards of the Act, the federal regulations, and these sections.

(B)

The department may suspend or revoke a grant of inspection and/or custom exemption of any person who violates the standards of the Act, the federal regulations, and these sections.

(C)

A person whose grant has been denied, suspended, or revoked is entitled to an opportunity for a formal hearing in accordance with §§1.21-1.34 of this title (relating to Formal Hearing Procedures).

(d)

(No change.)

§221.13.Administrative Penalties.

(a)

Purpose. The purpose of this section is to establish the criteria and procedures by which the commissioner of health will assess administrative penalties for violations relating to [ by persons operating under ] the provisions of the Texas Meat and Poultry Inspection Act, Health and Safety Code, Chapter 433, these rules, and licenses and orders issued pursuant to the Act or [ of ] the rules.

(b)

(No change.)

(c)

The seriousness of the violation.

(1)

(No change.)

(2)

The severity of a violation shall be increased if the violation involves deception[ , fraud, ] or other indication of willfulness. In determining the severity of a violation, there shall be taken into account the economic benefit gained by a person through noncompliance.

(3)

The following are examples only of severity levels; they are not exhaustive or controlling.

(A)

Severity Level I shall apply to:

(i)

(No change.)

(ii)

any person causing an unidentified or incorrectly identified and undecharacterized meat or poultry (such as meat from condemned livestock or livestock that died other than by slaughter) to be placed in food channels where it could enter the human food chain undetected; or [ and ]

(iii)

(No change.)

(B)

Severity Level II shall apply to:

(i)

(No change.)

(ii)

any person selling livestock slaughtered without approved state or federal ante-mortem and post-mortem inspection; or [ and ]

(iii)

(No change.)

(C)

Severity Level III shall apply to:

(i)

(No change.)

(ii)

any person denying access to review the records and/or a place of business where livestock products are being slaughtered, processed, sold, or made available for sale; or [ and ]

(iii)

(No change.)

(D)

Severity Level IV shall apply to:

(i)

any person failing to maintain records of business transactions which will correctly identify all purchases and sales involving livestock product; or [ and ]

(ii)

(No change.)

(E)

Severity Level V shall apply to:

(i) - (iii)

(No change.)

(iv)

any person selling or making available for sale ground beef, hamburger, or similar items whose fat content exceeds the standard limitation or the fat content stated on the product label as set out in Title 9, Code of Federal Regulations, §319, titled "Definitions and Standards of Identity or Composition," as amended; [ and ]

(v)

any person failing to correct labeling irregularities as set out in Title 9, Code of Federal Regulations, §317, titled "Labeling, Marking Devices, and Containers," as amended ; or [ . ]

(vi)

any person failing to maintain records of custom operations as required by these sections.

(d) - (i)

(No change.)

§221.14.Custom Slaughter and Processing.

(a)

Custom slaughter requirements. The requirements of this section shall apply to the custom slaughter by any person of livestock, as defined in §221.12(b) of this title (relating to Meat and Poultry Inspection), delivered by or for the owner thereof for such slaughter, not for sale to the public and exclusively for use, in the household of such owner, by him and members of his household and nonpaying guests. The requirements of this section do not apply to hunter killed game animals, hunter killed exotic animals, and hunter killed feral swine, as defined in §221.12(b) of this title.

(1)

Animals for slaughter. No adulterated animals as defined in §221.12(b)(2) of this title shall be accepted for custom slaughter. Only healthy animals, exhibiting no abnormalities, may be accepted for custom slaughter at custom slaughter establishments. Unhealthy or unsound animals are those that exhibit any condition that is not normally expected to be exhibited in a healthy and sound member of [ by ] that species.

(A) - (B)

(No change.)

(2) - (3)

(No change.)

(4)

Facilities.

(A)

The custom slaughter establishment shall maintain well distributed, sufficient light of good quality, and sufficient ventilation for all rooms and compartments to ensure [ insure ] sanitary condition, as specified in the department's guideline titled "Construction Guide No. 1, Texas State Inspected Meat Packing Plants: A Guide to Construction and Layout," dated May 1995.

(B)

(No change.)

(5) - (9)

(No change.)

(10)

Rodent and pest control.

[ (A) ]

A rodent and pest control and surveillance program shall be implemented to exclude flies, rats, mice, and other vermin from custom slaughter establishments. The use of poisons for any purpose in rooms or compartments where any carcass is stored or handled is forbidden. The use of insecticides, rodenticides [ rodenticide ], and similar pest control substances in hide cellars, inedible product departments, outbuildings, or similar places, or in storerooms containing canned products may be used provided they are labeled for use in or near areas when exposed food is present [ have been approved by the U.S. Department of Agriculture (USDA) ]. So-called rat viruses shall not be used in any part of an establishment or the premises of the custom slaughter establishments.

[ (B)

A list of approved pest control substances is available upon request from the Scientific Services, Meat and Poultry Inspection, Food Safety and Inspection Service, U.S. Department of Agriculture, Washington, D.C. 20250. ]

(11) - (15)

(No change.)

(16)

Operations, procedures, and clothing.

(A) - (B)

(No change.)

(C)

All tools, utensils, and equipment which become contaminated [ used ] in dressing carcasses shall be thoroughly cleansed and dipped in hot water having a minimum temperature of 180 degrees Fahrenheit or in a disinfectant used and prepared according to a written procedure, developed by the custom slaughterer specifying mixing methods, concentrations, contact time, the need to rinse with clean water, and storage of mixed solutions. The use of disinfectant solutions must be safe and effective. [ A list of approved disinfectants is available upon request from the Scientific Services, Meat and Poultry Inspection, Food Safety and Inspection Service, U.S. Department of Agriculture, Washington, D.C. 20250. ]

(D)

All persons that handle any product within the custom slaughter establishment shall keep their hands clean. All persons shall wash their hands after using the toilet rooms or urinals before handling any product, tool, utensil, or equipment used in the preparation of product.

(E) - (G)

(No change.)

(17) - (19)

(No change.)

(20)

Marking and labeling of custom prepared products. Carcasses and parts therefrom that are prepared on a custom basis shall be marked at the time of preparation with the term "Not for Sale" in letters at least three-eighths inch in height, and shall also be identified with the owner's name or a code that allows identification of the carcass or carcass part to its owner. Ink used for marking such products must be labeled [ USDA approved ] for such purpose. Ink containing FD&C Violet No. 1 shall not be used.

(21) - (23)

(No change.)

(b)

Custom processing requirements. The requirements of this section shall apply to the custom processing by any person of uninspected livestock carcasses or parts, delivered by or for the owner thereof for such processing, not for sale to the public and exclusively for use, in the household of such owner, by him and members of his household and nonpaying guests. The requirements of this section shall not apply to processing hunter killed game animals, hunter killed exotic animals, and hunter killed feral swine as defined in §221.12(b) of this title.

(1) - (3)

(No change.)

(4)

Facilities.

(A)

The custom processing establishment shall maintain well distributed, sufficient light of good quality, and sufficient ventilation for all rooms and compartments to ensure [ insure ] sanitary condition, as specified in the department's guideline titled "Construction Guide No. 1, Texas State Inspected Meat Packing Plants: A Guide to Construction and Layout," dated May 1995.

(B)

(No change.)

(5) - (9)

(No change.)

(10)

Rodent and pest control.

[ (A) ]

A rodent and pest control and surveillance program, shall be implemented to exclude flies, rats, mice, and other vermin from custom processing establishments. The use of poisons for any purpose in rooms or compartments where any carcass is stored or handled is forbidden. The use of insecticides, rodenticide, and similar pest control substances in inedible product departments, outbuildings, or similar places, or in storerooms containing canned products may be used provided they are labeled for use in areas or near areas where food is present [ have been approved by the United States Department of Agriculture (USDA) ]. So-called rat viruses shall not be used in any part of an establishment or the premises of the custom processing establishments.

[ (B)

A list of approved pest control substances is available upon request from the Scientific Services, Meat and Poultry Inspection, Food Safety and Inspection Service, U.S. Department of Agriculture, Washington, D.C. 20250. ]

(11) - (14)

(No change.)

(15)

Operations, procedures, and clothing.

(A) - (B)

(No change.)

(C)

All tools, utensils, and equipment which become contaminated [ used ] in processing [ deboning ] carcasses or parts, shall be thoroughly cleansed and dipped in hot water having a minimum temperature of 180 degrees Fahrenheit or in a disinfectant used and prepared according to a written procedure, developed by the custom processor specifying mixing methods, concentrations, contact time, the need to rinse with clean water, and storage of mixed solutions. The use of disinfectant solutions must be safe and effective. [ A list of approved disinfectants is available upon request from the Scientific Services, Meat and Poultry Inspection, Food Safety and Inspection Service, U.S. Department of Agriculture, Washington, D.C. 20250. ]

(D) - (G)

(No change.)

(16) - (22)

(No change.)

(23)

Approval of substances for use.

(A) - (B)

(No change.)

(C)

Nitrates shall not be used in curing bacon.

(i)

Nitrites in the form of sodium nitrite may be used at 120 parts per million (ppm) ingoing (or in the form of potassium nitrite at 148 ppm ingoing) maximum for injected, massaged, or immersion cured bacon; and 550 ppm of sodium ascorbate or sodium erythorbate (isoascorbate) for injected, massaged, or immersion cured bacon shall [ may ] be used.

(ii) - (iv)

(No change.)

(D)

(No change.)

(24) - (25)

(No change.)

§221.15.Inspection of Alternate Source Food Animals.

(a)

Requirements. Specific requirements of this section shall be in addition to those required by the rules adopted for inspection of livestock, under the Texas Meat and Poultry Inspection Act, and federal regulations as listed in §221.11 of this title (relating to Federal Regulations on Meat and Poultry Inspection).

(b)

Fees. Fees shall be assessed in one-half hour increments for inspection services, provided by a department Meat Safety Assurance Division (MSA) inspector to a facility holding a grant of inspection, as specified in §221.12(d) of this title (relating to Meat and Poultry Inspection). Failure of a grant holder to promptly pay invoices will result in cessation of overtime inspection services. Inspection time includes, but is not limited to:

(1)

the MSA inspector's time in the field during a hunt;

(2)

the MSA inspector's time spent completing inspection records;

(3)

the MSA inspector's time spent waiting for any purpose to facilitate the processor;

(4)

the MSA inspector's time for travel between hunt sites; and

(5)

the MSA inspector's time for travel from the inspector's official duty location to the field site and return.

(c)

Sanitary dressing procedures. The following are general guidelines of sanitary dressing applicable to all species of livestock slaughtered.

(1)

The person performing slaughter operations must not permit any contamination of edible portions of the carcass with materials such as feces, urine, hair, ingesta, milk, bile, pathological tissues and exudates, and other filth. All controls of slaughter and dressing procedures must be aimed at accomplishing this purpose.

(2)

Slaughter operations must be conducted in a manner that precludes contamination, i.e., adequate separation of carcasses, parts, and viscera during dressing; routine cleaning and disinfection of certain equipment and hand tools; design and arrangement of equipment to prevent the contact of successive carcasses and parts; and appropriately located, functional lavatories and disinfection units.

(3)

In the event that contamination does occur, it must be handled promptly and in a manner that ensures adequate protection to the remaining product. Contamination with feces, milk, pus, or pathological tissue or exudate must be promptly removed by trimming. Removal must be complete. Enough tissue must be removed so only clean meat remains. Scraping with the edge or back of a knife, wiping with a cloth or towel, or the use of a water spray are unacceptable procedures for removal of this type of contamination.

(d)

Exotic animal.

(1)

Sanitation. All slaughter operations, including field slaughter, are to be conducted in a way that precludes contamination. The following conditions, as a minimum, shall be met.

(A)

The slaughter facility or mobile slaughter unit shall be constructed of smooth and impervious material capable of being thoroughly cleaned and sanitized prior to commencing operations and must be so maintained.

(B)

Only potable water shall be used in conjunction with exotic animal slaughter procedures. Water from private water wells shall be tested for potability by an approved laboratory within six months prior to use. Water from portable water tanks shall be tested by an approved laboratory every six months to determine that potable water remains potable after being in the portable tanks. Results of such testing shall be made available to the TDH inspector.

(C)

Hot water at a minimum of 180 degrees Fahrenheit is required on the skinning/evisceration floor for equipment and unit sanitization during pre-operational and operational sanitation procedures. For emergency situations involving loss of unit power, an approved procedure should be available for utilizing chemical sanitization in lieu of hot water for sanitization during the remaining period of the hunt.

(D)

Mobile as well as fixed slaughter units shall provide adequate measures to control flies, other insects, and dust.

(E)

A sufficient number of inedible barrels must be available during each harvest. Barrels shall be marked "INEDIBLE" in letters at least two inches high. An adequate amount of denaturant will be used on all products placed in the "INEDIBLE" barrels.

(2)

Ante-mortem procedures.

(A)

The producer must certify by completing and signing form MSA-71, Microchip Certification and Drug Advisory For Alternate Food Animal Species, whether the animal(s) have been identified with a microchip device.

(B)

For mobile slaughter, the assigned inspector will accompany the vehicle carrying the hunter for the purpose of performing ante-mortem inspection to assure that the animals being harvested appear healthy. Once an animal has been shot, the animal will be bled as soon as possible in the field with a properly sanitized knife.

(C)

For field slaughter, the inspector shall designate the number of animals that may be slaughtered before it is necessary to return to the mobile slaughter unit for skinning and eviscerating. The time lapse will depend on several factors such as environmental temperature and the anatomical site of bullet entry. High environmental temperature may shorten the time lapse prior to dressing, as dressing must begin before the abdomen of the carcass becomes distended due to intestinal gas formation. The TDH inspector has the final decision in determining the actual time allowed between bleeding and skinning; however, a two and one half hour time lapse shall not be exceeded.

(3)

Post-mortem procedures.

(A)

The vehicle used for transporting the slaughtered exotic animals shall be clean prior to use and shall be cleaned as needed, during the operation.

(B)

Dressing procedures are to begin at the slaughter unit as soon as practical after slaughter.

(C)

Heads from animals slaughtered by gunshot to the head shall not be used for food purposes. Such heads shall be denatured and placed into inedible containers.

(D)

In the event that an animal is shot in an area other than the head, the resulting wound area and/or bruised areas must be trimmed of all contamination.

(E)

The dressing of any animal whether it be the removal of a foot, head, or any part is strictly forbidden in any area other than inside the slaughter unit, regardless of the size of the animal. However, the removal of the antlers only is permitted prior to entering the slaughter facility.

(4)

Dressing procedures.

(A)

It is imperative that persons butchering an animal keep their hands as clean as possible; adequate facilities for washing hands must be readily accessible.

(B)

Skinning operations begin at the hind legs and must be conducted in a sanitary manner.

(C)

As the pelt is removed, care must be taken to prevent contamination of the carcass by dirty hands, knife or pelt.

(D)

If a pelt puller is used in such a manner that the carcass is raised to a horizontal position, the carcasses of the female animals must be checked closely for urine leakage.

(E)

Scalping is done after the pelt is loosened from the carcass. Heads that the establishment elects not to scalp must remain with the carcass until inspection is completed. Nasal and oral cavities should be flushed before heads are placed on inspection tables.

(F)

Overall washing of carcasses should be accomplished before any openings are made for inspection or evisceration. The washer should take care to prevent filling the rectum with water during washing operations.

(G)

The knife or other instrument used to open the breast must be disinfected after each use.

(H)

The bung is not to be dropped until washing is completed. After opening the pelvic area, the neck of the bladder and the dropped bung should be grasped firmly and held until they clear the body cavity.

(I)

Evisceration must be accomplished in a manner that precludes contamination of the carcass with contents from the bladder or intestine; viscera is to be placed in an inspection pan.

(J)

If intestines are to be saved, contamination should be prevented by stripping and/or tying between the large and small intestine before removing from the table and sending to the next station.

(5)

Processing. Processing of carcasses shall be conducted in a manner and location that complies with requirements for processing all livestock carcasses, including the provisions adopted under §221.11 of this title.

(e)

Ratites.

(1)

Purpose. Meat from ratites (ostrich, emu, and rhea) is becoming a popular alternate meat food source. It is essential in the public interest that the health and welfare of consumers be protected by assuring that meat and meat food products derived from ratites are wholesome, unadulterated, properly marked, labeled, and packaged. It is also essential to ensure that the preparation of ratite bird meat and meat food products does not result in adulteration of other meat and meat food products that may be produced at the same establishment. Specific requirements of this subsection shall be in addition to those already required by the Texas Meat and Poultry Inspection Act and other parts of this subchapter.

(2)

Facilities.

(A)

Ante-mortem facilities shall be furnished as required to provide for adequate inspection of the birds, at rest and in motion. An adequate suspect pen shall be furnished as required.

(B)

A separate pre-evisceration area equipped with an exhaust fan will be available for operations described in paragraph (4) of this subsection (related to Slaughter procedures -- pre-evisceration).

(C)

Slaughter facilities shall be provided which allow humane slaughter and production of a wholesome product. It shall meet the standards as set forth by the Act and by the regulations.

(D)

Rails shall be of sufficient height to allow dressing to be accomplished without causing contamination of the carcass.

(3)

Ante-mortem procedures.

(A)

Microchip certification. The producer must certify by completing and signing form MSA-71, Drug Certification For Exotic Game and Alternative Species Animals, whether the bird(s) had been identified by use of a microchip device and state the location of the chip implant. The producer must also certify whether the previous owner used a microchip implant for identification and state the location of the implant.

(B)

Ante-mortem inspection. The bird shall be observed at rest and in motion to ascertain that no abnormal conditions exist. Some examples of abnormal conditions are:

(i)

loose stools characterized by excessive fecal stains around the vent and/or a pasty vent;

(ii)

bloody diarrhea;

(iii)

regurgitation of food;

(iv)

disinclination to rise from sternal recumbency; and

(v)

weight loss, particularly notable over back and thighs.

(4)

Slaughter procedures - pre-evisceration.

(A)

Stunning and bleeding. The bird shall be rendered unconscious by an electrical stunner, a captive bolt device, or other humane method; hobbled/shackled prior to or after stunning; and hoisted from a designated dry landing area, by one or both legs. A cut shall be made through the thoracic inlet to sever the heart and/or major arteries and veins exiting the heart to ensure complete bleeding. Because of the peculiar external fat layer of emus, immediate removal of the head may be an acceptable alternative to severing the heart and/or major arteries and veins exiting the heart. The removed head shall be presented for inspection.

(B)

Air injection. To facilitate feather and skin removal after the bird has bled thoroughly, an approved filtered air injection system may be used to inject air via needle beneath the skin.

(C)

De-feathering. Feathers are removed and collected in an acceptable container. Wing tips and tail set may be removed to facilitate complete feather removal.

(5)

Slaughter procedures - skinning and evisceration. De-feathered carcasses are transferred to the evisceration area. If the operator also works in the pre-evisceration area, the operator's hands, arms and apron must be washed to remove dust and dander prior to beginning the skinning and evisceration operations.

(A)

Head removal. If the head was not removed immediately after stunning, the head should be removed by cutting the skin of neck to expose the esophagus and trachea. The esophagus is loosened from the neck, cut at the head, stripped and tied. If the head was removed immediately after slaughter, the esophagus should be exposed, stripped from the neck and tied. When the breast plate is removed to facilitate evisceration, tying the esophagus may not be required. The head and trachea shall be removed from the neck and presented for inspection.

(B)

Feet (toes) removal. The feet/toes shall be removed prior to proceeding with the skinning operations. Using a gambrel for hanging the carcass by both legs will reduce the possibility of the ligaments tearing and the carcass falling to the ground. A sanitized chain may be attached proximal to the hock joint and attached to a hook for hanging the carcass.

(C)

Venting/bunging. The vent shall be excised, taking care to prevent contamination from cloacal material. After the attachments to the vent are loosened, the vent shall be drawn from the carcass and encased in a plastic bag and tied.

(D)

Skinning. Skinning shall be done in a manner that does not result in carcass contamination. "Fisting" or "knuckling" whereby the skin is removed leaving the fat attached to the carcass to be removed in a second step, does not provide a sanitary dressing procedure.

(E)

Neck removal. If the length of the neck causes its contamination by touching the floor it shall be removed. The neck is to be identified appropriately with the carcass.

(F)

Evisceration. Evisceration and pluck removal shall be accomplished in such a manner as not to cause contamination of any part of the carcass.

(6)

Post-mortem inspection. Each carcass and all parts thereof (except feathers and toes), and accompanying viscera, shall be presented for inspection. Any carcass or viscera exhibiting physiological or pathological (disease) characteristics shall be tagged "Texas Retained" and held for inspection by a MSA veterinarian.

(A)

Microchip implants. Birds that have been identified with microchip implants must have all implanted chips removed in toto. If a chip cannot be located, the entire part where the chip was implanted will be condemned and placed in an acceptable container marked "condemned". This condemned part may not be allowed to enter normal rendering operations unless assurance is made that the part will not be used in processing animal foods.

(B)

Final trim and rinse. The carcass shall first be trimmed of all visible contamination and then thoroughly rinsed with potable water. The inspector-in-charge shall make a final inspection prior to final rinse. Trimmed parts including external fat containing pin feathers or feather quills shall be placed in acceptable containers marked "inedible". The permit for transport to the rendering facility may be issued by the region. The passed carcass shall be stamped with the approved Texas Inspected and Passed brand bearing the appropriate "V" and number.

(7)

Pathological conditions.

(A)

The following abnormalities may be suggestive of pathological conditions:

(i)

low body fat - may indicate septicemia;

(ii)

thickening or granulomatous lungs - may indicate air sacculitis;

(iii)

thickening of intestine, enlargement of spleen, miliary pattern of liver - may suggest tuberculosis; or

(iv)

splenomegaly - any swelling of the spleen may suggest a pathological condition.

(B)

The following may also suggest pathological conditions:

(i)

hemorrhagic changes in the intestinal tract;

(ii)

petechial to ecchymotic hemorrhages on serosal aspect of the intestine;

(iii)

intestinal lumen devoid of digesta, but containing serosanguinous fluid;

(iv)

subcapsular hepatic hemorrhage;

(v)

ecchymotic hemorrhage of epicardium and/or endocardium;

(vi)

hemoperitoneum;

(vii)

weight loss, particularly notable over back and thighs;

(viii)

depressed attitude; or

(ix)

swelling of one or more joints.

(8)

Temperature and chilling requirements. Ratites slaughtered and prepared in official establishments are to be chilled in accordance with 9 CFR, Chapter III, Subchapter C, §381.66, MPI Regulations. Specifically, the internal temperature of the carcasses shall be reduced to 40 degrees Fahrenheit or less within 16 hours by air chilling.

(f)

Rabbits. See 9 CFR, Part 354, as adopted by §221.11 of this title.

(g)

Migratory water fowl, game birds, squab. See 9 CFR, Part 362, as adopted by §221.11 of this title.

(h)

Certified products for dogs, cats, and other carnivora. See 9 CFR, Part 355, as adopted by §221.11 of this title

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 14, 2000.

TRD-200000270

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 27, 2000

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


Chapter 253. ENVIRONMENTAL ENGINEERING

25 TAC §253.1

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Department of Health (department) proposes the repeal of §253.1 concerning the incorporation by reference of federal regulations affecting federal grants and assistance relating to environmental functions.

This rule was adopted by the Texas Department of Health Resources (TDHR) in 1976. At the time, TDHR (and later its successor, department) was responsible for environmental protection programs such as, for example, solid waste (including hazardous waste), drinking water, protection of public drinking water supplies and bodies of water, on-site sewage disposal systems, and on-site wastewater treatment research. These environmental protection programs were and are eligible for federal grants. Adoption of these rules was necessary to ensure eligibility for federal grants relating to these environmental protection programs. Authority and responsibility for these environmental programs now reside at the Texas Natural Resource Conservation Commission (except pesticide regulation which is at the Texas Department of Agriculture). The Texas Natural Resource Conservation Commission and the Texas Department of Agriculture -- not the department -- apply for and receive relevant grants from the U.S. Environmental Protection Agency. The department no longer has authority to pursue grants contemplated by the underlying federal regulations. Therefore these rules are being repealed.

Mr. John A. Jacobi, P.E., Chief, Bureau of Environmental Health, has determined that the proposed repeal will have no fiscal implications for state or local governments as a result of enforcing or administering the repeal.

Mr. Jacobi has also determined that the public benefit anticipated as a result of enforcing the repeal will be the elimination of a potential source of public confusion regarding responsibility for certain environmental issues. There will be no adverse impact on public health. There will be no adverse economic effect on micro-businesses and/or small businesses because the department does not apply for or receive federal grants relating to environmental programs transferred to the Texas Natural Resource Conservation Commission and the Texas Department of Agriculture. There are no anticipated costs to persons who are required to comply with the repeal. There will be no effect on local employment.

Comments regarding the proposed repeal may be sent to John A. Jacobi, P.E., Chief, Bureau of Environmental Health, Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756-3199, (512) 834-6640. Comments regarding the proposed repeal will be accepted for 30 days following publication in the Texas Register .

The repeal is proposed under the Health and Safety Code, §12.001, which provides the Board of Health (board) with authority to adopt rules to implement every duty imposed by law on the board, the department and the Commissioner of Health.

The repeal does not affect any Texas statute.

§253.1.Federal Regulations of Environmental Protection.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 14, 2000.

TRD-200000281

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 27, 2000

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


Part 2. TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION

Chapter 401. SYSTEM ADMINISTRATION

Subchapter D. CONTRACTS MANAGEMENT FOR COMMUNITY-BASED SERVICES

25 TAC §401.351

The Texas Department of Mental Health and Mental Retardation (TDMHMR) proposes an amendment to §401.351 (relating to Methods of Procurement) of Chapter 401, Subchapter D, concerning contracts management for community-based services.

The amendment would allow local authorities of TDMHMR to procure qualified contractors of any community service through open enrollment in order to establish and maintain a provider network.

Bill Campbell, chief financial officer, has determined that for each year of the first five years the proposed amendment is in effect, enforcing or administering the rule will have no significant fiscal impact relating to cost or revenue of the state or local governments.

Leon Evans, director of community services, has determined that, for each year of the first five years the proposed amendment is in effect, the public benefit expected is the ability of local authorities to more effectively establish and maintain provider networks. Contracting with multiple providers of a particular service allows local authorities to present consumers of the service with a wide variety of providers to choose from. It is anticipated that there would be no significant economic cost to persons required to comply with the proposed amendment because they do not impose significant economic requirements on such persons.

It is anticipated that the proposed amendment will not affect a local economy because the amendment does not include requirements that relate to a local economy.

It is anticipated that the proposed amendment will not have an adverse economic effect on small businesses or micro-businesses because the requirements in the proposed amendment that would economically affect small businesses or micro-businesses is consistent with generally accepted business and procuring practices.

Written comments on the proposal may be sent to Linda Logan, director, Policy Development, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication.

This section is proposed under the Texas Health and Safety Code, §532.015(a), which provides the Texas Board of Mental Health and Mental Retardation (board) with broad rulemaking authority, and §534.052(a), which requires the board to adopt rules it considers necessary and appropriate to ensure the adequate provision of community-based mental health and mental retardation services through a local mental health or mental retardation authority.

This section affects the Texas Health and Safety Code, §532.015(a) and §534.052(a).

§401.351. Methods of Procurement.

The state authority [ and all local authorities ] shall procure community-based services to be provided by another organization through either the method described in paragraph (1) or paragraph (2) of [ one of the methods described in ] this section. All local authorities shall procure community-based services to be provided by another organization through one of the methods described in this section.

(1)

Request for proposal [ Proposal ] (RFP). A contract may be procured using the request for proposal method in accordance with this subsection.

(A)

Determination of method. A contract must be procured through the RFP method unless a determination is made that the sole source method is permissible under this section or that open enrollment will be used . The RFP method is typically applicable to those situations where funds of greater than $1,000 are available to the contracting entity for the provision of a service without reference to a particular person with a mental disability.

(B)

Solicitation.

(i)

The contracting entity must make a reasonable effort to give notice of the intent to contract for services to each potential provider in the authority's local service area. An RFP must be published in a local newspaper or professional association newsletter, or solicited through announcements by direct mail to all known providers by the contracting entity at least 10 days, but not more than 60 days, prior to the due date of submission of proposals. An RFP must contain, but is not limited to, the following information:

(I)

the community-based service to be purchased;

(II)

the approximate number of persons with a mental disability to be served pursuant to the contract;

(III)

the geographic area to be served pursuant to the contract;

(IV)

applicable funding limitations;

(V)

method of payment;

(VI)

the contract term;

(VII)

any limitations on who may submit a proposal and any limitations in the services;

(VIII)

the procedure for requesting a procurement package; and

(IX)

the date by which proposals must be submitted.

(ii)

A contracting entity must provide a procurement package to each entity that requests one. No requirement that restricts competition by unreasonably eliminating or limiting participation in the procurement process may be included in the procurement package. A procurement package must contain:

(I)

a detailed description of the community-based services to be purchased, including all information included in the RFP;

(II)

a detailed description of information to be included in a proposal;

(III)

instructions for the submission of questions concerning the procurement by potential offerors;

(IV)

instructions for the submission of proposals;

(V)

requirements that a potential offeror must fulfill to participate in the procurement process, including assurances that:

(-a-)

the offeror has made no attempt nor will make any attempt to induce any person or firm to submit or not submit a proposal;

(-b-)

the offeror has arrived at the proposal independently without consultation, communication, or agreement for the purposes of restricting competition;

(-c-)

the offeror and its officers or employees have no relationship now or will have no relationship during the contract period that interferes with fair competition or that is a financial or other conflict of interest, real or apparent; and

(-d-)

no member of the offeror's staff or governing authority has participated in the development of specific criteria for award of the contract, nor will participate in the selection of the proposal to be awarded the contract.

(VI)

the criteria for evaluation of proposals.

(iii)

A proposal must include, but is not limited to, the following information:

(I)

the offeror's name, address, telephone number, and type of legal entity;

(II)

the offeror's credentials for providing the community-based service, including applicable certifications, licenses, and/or evidence of compliance with applicable TDMHMR community standards;

(III)

information concerning the factors set forth in subparagraph (C)(iii) of this paragraph.

(iv)

Changes to a procurement package may be made by the contracting entity prior to the date designated for submission of proposals, provided all offerors that have obtained a procurement package are notified of the change and are provided fair opportunity to respond.

(v)

Except as provided in the Texas Open Records Act, Texas Government Code, Chapter 552, all information submitted in a proposal is confidential until a contract has been awarded.

(vi)

Any amendments to a proposal must be made by the offeror in writing and must be received prior to the submission date for proposals.

(vii)

The contracting entity must document all transactions concerning contracts.

(viii)

The contracting entity may validate any information in a proposal by using outside sources or materials.

(C)

Award.

(i)

For a proposal to be considered for award, the offeror must follow all instructions and meet all requirements specified in the procurement package.

(ii)

Clarification or confirmation of information submitted in a proposal may be obtained if such information is necessary to complete the award process; however, no offeror may be given information which would give that offeror an unfair competitive advantage.

(iii)

The award of a contract is made by determining the lowest and best proposal. The determination shall include consideration of any relevant information included in the RFP, including:

(I)

price;

(II)

the ability of the offeror to perform the contract and to provide the required services;

(III)

whether the offeror can perform the contract or provide the services within the period required, without delay or interference;

(IV)

the offeror's history of compliance with the laws relating to its business operations and the affected services and whether it is currently in compliance;

(V)

whether the offeror's financial resources are sufficient to perform the contract and to provide the services;

(VI)

whether necessary or desirable support and ancillary services are available to the offeror;

(VII)

the character, responsibility, integrity, reputation, and experience of the offeror;

(VIII)

the quality of the facilities and equipment available to or proposed by the offeror;

(IX)

the ability of the offeror to provide continuity of services; and

(X)

the ability of the offeror to meet all applicable written policies, principles, and regulations.

(iv)

Negotiation may be conducted either to complete the procurement process or to complete an evaluation of an acceptable proposal. When only one proposal has a reasonable chance of being awarded, contract staff and the potential contractor/subcontractor will negotiate the contract requirements as necessary to complete the procurement process. When more than one acceptable proposal is received, negotiation is used to further evaluate competitive proposals and to select one or more for award. In this situation, no potential contractor/subcontractor is given information that will give the contractor/subcontractor a competitive advantage over the other potential contractors/subcontractors.

(v)

An RFP may be canceled without award for any reason or for no reason.

(vi)

Each offeror who submits an acceptable proposal but is not awarded a contract is entitled to timely notification in writing that the proposal is no longer being considered.

(vii)

Upon written request, an unsuccessful offeror is entitled to receive information concerning why its proposal was not accepted.

(2)

Sole source. A contract may be procured using the sole source method in accordance with this section.

(A)

Determination of method. The sole source method is typically applicable in those situations where funds are available for the provision of services and certain conditions exist which indicate that the RFP method is not appropriate.

(i)

A contract may be procured using the sole source method, only if:

(I)

it is documented that only one source can or will provide the needed services;

(II)

the contract is with another governmental entity;

(III)

there exists an emergency situation in which a delay may result in harm to person(s) with a mental disability who is to receive the community-based service;

(IV)

the contract is for less than $1,000 for a one-year period; or

(V)

no acceptable proposal was received through a substantially similar RFP within the previous 12 months.

(ii)

A contract procured using the sole source method pursuant to clause (i)(III) of this subparagraph, may be for a term of only six months or for the balance of the fiscal year, whichever is greater.

(iii)

A contract procured using the sole source method pursuant to clause (i)(IV) of this subparagraph may not be divided in order to qualify for the sole source method.

(iv)

The contracting entity must justify and document awarding a sole source contract. Documentation must accurately and concisely substantiate the necessity for a sole source contract on the basis of one or more of the reasons listed in clause (i) of this subparagraph.

(B)

Award. The procedure for awarding contracts using the sole source method is established by the contracting entity.

(3)

Open enrollment. A local authority may use open enrollment to establish and maintain a provider network in accordance with this subsection.

(A)

Determination of method. Open enrollment is used by a local authority to procure qualified contractors for inclusion in the local authority's provider network.

(B)

Solicitation.

(i)

At least once every two years the local authority must publish in a local newspaper or professional association newsletter a request for applications notice to procure qualified contractors for inclusion in the local authority's provider network. In addition, the local authority must continuously and prominently display such request for applications notice at the local authority's administrative office(s). The request for applications notice must include:

(I)

the types of community services, including brief descriptions, for which the local authority intends to contract;

(II)

the geographic area to be served under the contracts;

(III)

the procedure for obtaining the request for applications for inclusion in the local authority's provider network; and

(IV)

the date and time by which applications must be submitted, if any.

(ii)

A local authority must provide the request for applications to each entity that requests one. A request for applications must include:

(I)

a detailed description of each type of community service for which the local authority intends to contract, including all information included in the request for applications notice;

(II)

the amount of payment for each type of community service for which the local authority intends to contract and the method used to determine that amount;

(III)

a detailed description of the information to be included in an application;

(IV)

instructions for the submission of applications;

(V)

eligibility requirements an applicant must fulfill to be included in the local authority's provider network (e.g., credentials for providing the community service(s), such as applicable certifications, licenses; evidence of compliance with relevant TDMHMR rules; evidence of accessibility; evidence of providing quality services; evidence of financial solvency; and evidence of liability insurance);

(VI)

assurances that:

(-a-)

the applicant is not currently held in abeyance or barred from the award of a federal or state contract;

(-b-)

the applicant is not currently delinquent in its payments of any franchise tax owed to the state of Texas; and

(VII)

the criteria for approval.

(iii)

An application must include the following information:

(I)

the applicant's name, address, telephone number, and type of legal entity;

(II)

the type(s) of community service(s) that the applicant intends to provide;

(III)

assurances that the applicant meets the requirements described in subparagraph (B)(ii)(VI) of this paragraph;

(IV)

evidence that the applicant fulfills the eligibility requirements described in subparagraph (B)(ii)(V) of this paragraph; and

(V)

a statement that the applicant agrees to provide the specified community service(s) at the amount of payment described in the request for applications.

(C)

Approval process for inclusion on a local authority's provider network.

(i)

The local authority may obtain clarification or confirmation of information submitted in an application.

(ii)

The local authority must approve for inclusion on its provider network all applicants whose applications are complete and who meet all requirements specified in the request for applications.

(D)

Provider network contracts. All contracts for a specific type of community service provided through a provider network must contain the same contract conditions, provisions, and requirements, including:

(i)

the requirement that the contractor immediately notify the local authority of any change, or potential change, in its status that could affect its inclusion on the network;

(ii)

the requirement that, before services can be delivered to consumers, the contractor or its designated staff participate in orientation conducted by the local authority relating to the local authority's policies and procedures;

(iii)

the statement that the contractor is prohibited from:

(I)

offering any gift with a value in excess of $10 to potential consumers; and

(II)

soliciting potential consumers through direct-mail or by telephone.

(iv)

the requirement that the local authority maintain and make available to consumers and potential consumers, current information about each contractor of community services participating in its network that:

(I)

represents all participating contractors fairly;

(II)

is organized and relevant to consumers and potential consumers; and

(III)

includes results from consumer satisfaction surveys; and

(v)

the requirement that the local authority allow consumers to choose freely any participating contractor of a specific type of community service within its network, without influence by any local authority staff or representative.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 12, 2000.

TRD-200000201

Charles Cooper

Chairman

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: February 27, 2000

For further information, please call: (512) 206-4516