40 TAC §79.403
The Texas Department of Human Services (DHS) proposes an
amendment to §79.403, concerning mandated advisory committees, in its
Legal Services chapter. The purpose of the amendment is to add specifications
for the Home and Community Support Services Advisory Council and the Texas
Board of Human Services/Board of Nurse Examiners Memorandum of Understanding
Advisory Committee.
Eric M. Bost, commissioner, has determined that for the first five- year
period the section is in effect there will be no fiscal implications for state
or local government as a result of enforcing or administering the sections.
Mr. Bost 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 adoption
of the proposed rule will be rules that are more consumer-friendly, because
they will be properly located with DHS's other advisory committee rules. There
will be no adverse economic effect on small or micro businesses, because the
rules place no requirements on small or microbusinesses.
Questions about the content of this proposal may be directed to Linda Kotek
at (512) 438-3158 in DHS's Long Term Care Section. Written comments on the
proposal may be submitted to Supervisor, Rules and Handbooks Unit-049, Texas
Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department
has determined that Chapter 2007 of the Government Code does not apply to
these rules. Accordingly, the department is not required to complete a takings
impact assessment regarding these rules.
The amendment is proposed under the Health and Safety Code, Chapter 142,
which provides the department with the authority to adopt rules that govern
the HCSSA Advisory Council and the Texas Board of Human Services/Board of
Nurse Examiners Memorandum of Understanding Advisory Committee.
The amendment implements the Health and Safety Code, Chapter 142.001-142.030.
§79.403.Mandated Advisory Committees.
(a)-(e)
(No change.)
(f)
Home and Community Support Services Advisory
Council.
(1)
Legal base. The council's legal base is Health and Safety
Code, §142.015.
(2)
Structure. The council has 13 members who are appointed
by the governor. The council includes three consumer representatives and ten
non-consumer representatives as follows:
(A)
three consumer representatives;
(B)
two representatives of agencies that are licensed to provide
certified home health services;
(C)
two representatives of agencies that are licensed to provide
home health services but are not certified home health services;
(D)
three representatives of agencies that are licensed to
provide hospice services with one representative appointed from:
(i)
a community-based non-profit provider of hospice services;
(ii)
a community-based proprietary provider of hospice services;
and
(iii)
a hospital-based provider of hospice services; and
(E)
three representatives of agencies that are licensed to
provide personal assistance services.
(3)
Terms of office. The term of office of each member is two
years.
(A)
Members serve staggered terms so that the terms of seven
members will expire on January 31 of each even-numbered year and the terms
of six members will expire on January 31 of each odd-numbered year.
(B)
Vacancies on the council are filled in the same manner
in which the position was originally filled and are filled by a person who
meets the qualifications of the vacated position.
(4)
Officers. The council elect a presiding officer and an
assistant presiding officer from among its members at its first meeting after
August 31 of each year.
(A)
Each officer serves until the next regular election of
officers.
(B)
The presiding officer presides at all council meetings
at which he or she is in attendance, calls meetings in accordance with this
subsection, appoints subcommittees of the council as necessary, and causes
proper reports to be made to the Texas Board of Human Services. The presiding
officer may serve as an ex-officio member of any subcommittee of the council.
(C)
The assistant presiding officer performs 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 serves until a successor is elected to complete the unexpired
portion of the term of the office of presiding officer.
(D)
A vacancy that occurs in the offices of presiding officer
or assistant presiding officer is filled at the next council meeting.
(E)
The presiding officer serves for one year but may not serve
as presiding officer and/or assistant presiding officer for more than two
years.
(F)
The council may reference its officers by other terms,
such as chairperson and vice-chairperson.
(5)
Responsibilities.
(A)
The council advises the Texas Department of Human Services
on licensing standards and on the implementation of Health and Safety Code,
Chapter 142.
(B)
As required in Health and Safety Code, §142.009(l),
the council makes recommendations for a memorandum of understanding (MOU)
that establishes procedures to eliminate or reduce duplication of standards
or conflicts between standards and of functions in license, certification,
or compliance surveys and complaint investigations. Also, in accordance with
Health and Safety Code, §142.009(l), the Health and Human Services Commission
(HHSC) must review the recommendation of the council relating to the MOU before
considering approval. The MOU must be approved by HHSC.
(C)
At each meeting of the council, DHS provides an analysis
of enforcement actions taken under this chapter, including the type of enforcement
action, the results of the action, and the basis for the action. The council
may advise DHS on its implementation of the enforcement provisions of the
Health and Safety Code, Chapter 142.
(D)
The council must meet as least once a year and may meet
to conduct council business at other times at the discretion of the presiding
officer, any three members of the council, or DHS's commissioner.
(i)
DHS staff makes meeting arrangements. DHS staff contact
council members to determine availability for a meeting date and place.
(ii)
DHS informs each member of the council of a council meeting
at least five working days before the meeting.
(iii)
A simple majority of the members of the council constitutes
a quorum for the purpose of transacting official business.
(iv)
The council is authorized to transact official business
only when in a legally constituted meeting with quorum present.
(v)
The agenda for each council meeting includes an item entitled
public comment under which any person may address the council on matters relating
to council business. The presiding officer may establish procedures for public
comment, including a time limit on each comment.
(E)
The council may establish subcommittees as necessary to
assist the council in carrying out its duties.
(i)
The presiding officer appoints members of the council to
serve on subcommittees and to act as subcommittee chairpersons. The presiding
officer may also appoint nonmembers of the council to serve on subcommittees.
(ii)
Subcommittees must meet when called by the subcommittee
chairperson or when so directed by the council.
(iii)
A subcommittee chairperson must make regular reports
to the advisory council at each council meeting or in interim written reports
as needed. The reports must include an executive summary or minutes of each
subcommittee meeting.
(F)
Members must attend council meetings as scheduled. Members
must attend meetings of subcommittees to which the member is assigned.
(i)
A member must notify the presiding officer or appropriate
DHS staff if he or she is unable to attend a scheduled meeting.
(ii)
It is grounds for removal from the council if a member
fails to meet council responsibilities for a substantial part of the term
for which the member is appointed because of:
(I)
illness or disability;
(II)
absenteeism from more than half of the council and subcommittee
meetings during a calendar year; or
(III)
absenteeism from at least three consecutive council
meetings.
(iii)
The validity of an action of the council is not affected
by the fact that it is taken when a ground for removal of a member exists.
(G)
The council must file an annual written report with the
board.
(i)
The report must list:
(I)
the meeting dates of the council and any subcommittees;
(II)
the attendance records of its members;
(III)
a brief description of actions taken by the council;
(IV)
a description of how the council has accomplished the
tasks given to the council by the board;
(V)
the status of any rules which were recommended by the
council to the board; and
(VI)
anticipated activities of the council for the next year.
(ii)
The report must identify the costs related to the council's
existence, including the cost of agency staff time spent in support of the
council's activities.
(iii)
The report must cover the meetings and activities in
the immediate preceding 12 months and must be filed with the board each July.
The report must be signed by the presiding officer and appropriate DHS staff.
(H)
The council carries out any other tasks given to the council
by the board.
(6)
Abolishment. The abolishment date is July 1, 2003.
(7)
Staff support. DHS provides staff support for the council.
(8)
Procedures.
Roberts Rules of Order,
Newly Revised,
are the basis of parliamentary decisions except where
otherwise provided by law or rule.
(A)
Once a quorum is established, a majority vote of the members
present must approve any action taken by the council.
(B)
Each member has one vote.
(C)
A member may not authorize another individual to represent
the member by proxy.
(D)
The council must 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.
(E)
DHS staff record minutes of each council meeting.
(i)
A draft of the minutes approved by the presiding officer
is provided to the board and each member of the council within 30 days of
each meeting.
(ii)
After approval by the council, the minutes must be signed
by the presiding officer.
(9)
Statement by members.
(A)
The board, DHS, and the council are not bound in any way
by any statement or action on the part of any council member except when a
statement or action is in pursuit of specific instructions from the board,
DHS, or council.
(B)
The council and its members may not participate in legislative
activity in the name of the board, DHS, or the council except with approval
through DHS's legislative process. Council members are not prohibited from
representing themselves or other entities in the legislative process.
(10)
Reimbursement for expenses. In accordance with the requirements
specified in the Government Code, Chapter 2110, a council member may receive
reimbursement for the member's expenses incurred for each day the member engages
in official business if authorized by the General Appropriations Act or budget
execution process.
(A)
No compensatory per diem is paid to council members unless
required by law.
(B)
A council member who is an employee of a state agency,
other than DHS, may not receive reimbursement for expenses from DHS.
(C)
A nonmember of the council who is appointed to serve on
a subcommittee may not receive reimbursement for expenses from DHS.
(D)
Each member who is to be reimbursed for expenses must submit
to staff the member's receipts for expenses and any required official forms
no later than 14 days after each council meeting.
(E)
Requests for reimbursement of expenses must be made on
official state travel vouchers prepared by DHS staff.
(g)
Texas Board of Human Services/Board of
Nurse Examiners Memorandum of Understanding Advisory Committee.
(1)
Legal base. The Health and Safety Code, §142.016(b),
requires the Texas Board of Human Services (board) and the Board of Nurse
Examiners (BNE) to jointly establish and appoint the committee.
(2)
Structure.
(A)
DHS and BNE appoint the advisory committee that must include
at a minimum:
(i)
one representative from the BNE and one representative
from the Texas Department of Human Services (DHS) to serve as co-chairmen;
(ii)
one representative from the Texas Department of Mental
Health and Mental Retardation;
(iii)
one representative from the Texas Department of Health;
(iv)
one representative from the Texas Nurses Association;
(v)
one representative from the Texas Association for Home
Care, Incorporated, or its successor;
(vi)
one representative from the Texas Hospice Organization,
Incorporated, or its successor;
(vii)
one representative of the Texas Respite Resource Network
or its successor; and
(viii)
two representatives of organizations such as the Personal
Assistance Task Force or the Disability Consortium that advocate for clients
in community-based settings.
(B)
The representatives from the organizations listed in subparagraph
(A)(i)-(vii) of this paragraph may serve without further approval of the board
or the BNE. The representatives of organizations described in subparagraph
(A)(viii) of this paragraph must be approved by the board and the BNE before
serving.
(3)
Terms of office. The term of office of each member is six
years. Members must serve after expiration of their term until a replacement
is appointed.
(A)
Members are appointed for staggered terms with the terms
of an equivalent number of members expiring on January 31 of each even-numbered
year.
(B)
If a vacancy occurs, a person is appointed to serve the
unexpired portion of that term.
(4)
Officers. The representatives from DHS and the BNE serve
as co-chairmen of the committee.
(A)
The co-chairmen preside at all committee meetings at which
they are 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.
(B)
In the absence of one co-chairman, the appropriate state
agency designates a temporary co-chairman. The temporary co-chairman acts
in full authority for the designated period of time.
(5)
Responsibilities.
(A)
The committee advises the board and the BNE regarding the
development, modification, or renewal of a memorandum of understanding (MOU)
governing the circumstances under which the provision of health- related tasks
or services do not constitute the practice of professional nursing.
(B)
The committee carries out any other tasks given to the
committee by the board and the BNE that are reasonable and necessary to accomplish
the purpose of the MOU.
(C)
The committee must meet as necessary to conduct committee
business.
(i)
A meeting may be called by agreement of DHS staff, BNE
staff, and either the co-chairmen or at least three members of the committee.
(ii)
DHS staff make meeting arrangements. DHS staff contact
committee members to determine availability for a meeting date and place.
(iii)
DHS staff informs each member of the committee of a committee
meeting at least five working days before the meeting.
(iv)
A simple majority of the members of the committee constitute
a quorum for the purpose of transacting official business.
(v)
The committee is authorized to transact official business
only when in a legally constituted meeting with quorum present.
(vi)
The agenda for each committee meeting includes an item
entitled public comment under which any person may address the committee on
matters relating to committee business. The co-chairmen may establish procedures
for public comment, including a time limit on each comment.
(D)
The committee may establish subcommittees as necessary
to assist the committee in carrying out its duties.
(i)
The co-chairmen appoints members of the committee to serve
on subcommittees and to act as subcommittee chairpersons. The co-chairmen
may also appoint nonmembers of the committee to serve on subcommittees.
(ii)
Subcommittees must meet when called by the subcommittee
chairperson or when so directed by the committee.
(iii)
A subcommittee chairperson must make regular reports
to the advisory committee at each committee meeting or in interim written
reports as needed. The reports must include an executive summary or minutes
of each subcommittee meeting.
(E)
Members must attend committee meetings as scheduled. Members
must attend meetings of subcommittees to which the member is assigned.
(i)
A member must notify the presiding officer or appropriate
DHS staff if he or she is unable to attend a scheduled meeting.
(ii)
It is grounds for removal from the committee if a member
fails to meet committee responsibilities for a substantial part of the term
for which the member is appointed because of:
(I)
illness or disability;
(II)
absenteeism from more than half of the council and subcommittee
meetings during a calendar year; or
(III)
absenteeism from at least three consecutive council
meetings.
(iii)
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.
(6)
Abolishment. The abolishment date is July 1, 2003.
(7)
Staff. DHS staff, in conjunction with designated BNE staff,
provide support for the committee.
(8)
Procedures.
Roberts Rules of Order,
Newly Revised,
is the basis of parliamentary decisions except where
otherwise provided by law or rule.
(A)
Any action taken by the committee must be approved by a
majority vote of the members present once quorum is established.
(B)
Each member has one vote.
(C)
A member may not authorize another individual to represent
the member by proxy.
(D)
The committee must 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.
(E)
DHS staff record minutes of each committee meeting.
(i)
A draft of the minutes approved by the co-chairmen must
be provided to the board, the BNE designated staff, and each member of the
committee within 30 days of each meeting.
(ii)
After approval by the committee, the minutes must be signed
by the co-chairmen.
(9)
Responsibility of DHS and BNE. The DHS and the BNE annually
review and renew or modify the MOU as necessary.
(10)
Statement by members. The board, DHS, and the committee
are not be bound in any way by any statement or action on the part of any
committee member except when a statement or action is in pursuit of specific
instructions from the board, DHS, or committee.
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 April 2, 2001.
TRD-200101902
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: May 13, 2001
For further information, please call: (512) 438-3108