TITLE 25.HEALTH SERVICES

Part 1. TEXAS DEPARTMENT OF HEALTH

Chapter 31. NUTRITION SERVICES

The Texas Department of Health (department) proposes the repeal of §§31.1-31.3 and new §§31.1, 31.11, 31.12, 31.21-31.37, concerning the register of mother-friendly businesses; the farmers' market nutrition program; and the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). Specifically, the sections cover register of mother-friendly businesses; definitions; farmers' market nutrition program agreement with the state agency; definitions; recipient eligibility requirements; recipients of supplemental food benefits; provision of immunizations to WIC applicants and participants; participant certification periods; notification to applicants of ineligibility; notification to participants of certification expiration; notification to participants of termination of certification; applicant and participant rights; participant fraud and abuse; selection of a local agency as a WIC provider; selection of vendors for WIC initial authorization for participation; selection of vendors for reauthorization for participation; calculation and use of vendor competitive pricing data; vendor agreement with the state agency; right of administrative appeal by a local agency or vendor; and selection of WIC program allowable foods.

The United States Department of Agriculture (USDA) provides federal grant funds to the department to administer the WIC Program, provided the department does so in accordance with federal regulations. The department also administers the Farmers' Market Nutrition Program, which is 70% federally funded, according to federal and state enabling legislation.

The proposed repeal of §§31.1-31.3 will delete rules concerning the adoption of the state plans, WIC federal regulations, the WIC Policy and Procedure Manual, the Register of Mother-Friendly Businesses, the Farmers' Market Nutrition Program. The proposed new sections reestablish the Register of Mother-Friendly Businesses and the Farmers' Market Nutrition Program with no substantive changes. The new sections also reestablish without substantive change 37 WIC policies, currently adopted by reference as part of the WIC Policy and Procedure Manual, which address client, local agency, and vendor eligibility and rights of participation in the program. The remaining 183 WIC policies currently adopted by reference will be enforced unchanged through contracts between the department and local agencies and WIC food vendors. Deletion of policies affecting WIC local agencies and contracted WIC food vendors by repeal of §31.1 will eliminate duplicate references to the policies in both department rules and local agencies' contracts. Since the relationship of WIC local agencies and participating food vendors to the department is contractual, the repeal will clarify that local agencies and participating food vendors are subject to sanctions solely as a result of noncompliance with their contracts. Neither federal law nor regulations require the department to adopt WIC policies or procedures by rule after approval by USDA.

The policies which will be deleted by the proposed repeal of §31.1 and which will not be proposed as new sections include the following: Explanation of the Federal Definition of "Health Services," AAP:01.4; Local Agency Financial Management Systems, AC:01.0; Reimbursement of Allowable WIC Expenses, AC:01.1; Plan to Allocate Direct Cost, AC:02.0; Allowable Costs - Personnel Compensation, AC:03.0; Allowable Costs - Personnel Benefits, AC:03.1; Allowable Costs - In-State Travel, AC:03.2; Allowable Costs - Out-of-State Travel, AC:03.3; Allowable Costs - Agency Car, AC:03.5; Property Management, AC:03.6; Allowable Costs - Equipment, AC:03.7; Allowable Costs - Depreciation of Equipment, AC:03.7.1; Allowable Costs - Outreach, AC:03.9; Allowable Costs - Communication & Utilities, AC:03.10; Allowable Costs - Data Processing, AC:03.11; Allowable Costs - Reproduction Expense, AC:03.12; Allowable Costs - Printing Expense, AC:03.12.1; Allowable Costs - Space Rental, AC:03.13; Allowable Costs - Facility Depreciation, AC:03.13.1; Allowable Costs - Use Allowance, AC:03.13.2; Allowable Costs - Supplies, AC:03.14; Allowable Costs - Postage and Shipping, AC:03.15; Allowable Cost - Non-Professional Contract Services, AC:03.16; Allowable Costs - Professional Contract Services, AC:03.16.1; Allowable Costs - Peer Counselors, AC:03.16.2; Allowable Costs - Facility Renovation, AC:03.17; Allowable Costs - Expendable Medical Supplies, AC:03.18; Allowable Costs - Indirect Costs, AC:03.19; Allowable Costs - Food Purchases, AC:03.20; Allowable Costs - Insurance Expense, AC:03.21; Allowable Costs - Outreach Incentive Items, AC:03.22; Allowable Costs - Laboratory Coats, AC:03.23; Allowable Costs - Employee Uniforms, AC:03.24; Unallowable Costs, AC:04.0; Monthly Reimbursement Maximum, AC:05.0; Monthly Reimbursement Maximum - Start-up Costs, AC:05.1; Cash Advance Payments, AC:05.2; Surplus Funds, AC:06.0; Financial Reporting, AC:07.0; WISE Cost Report, WIC-227 A, AC:07.7; Program Income, AC:08.0; Program Income - Participant Fees, AC:08.1; Close Out Reports, AC:09.0; Expenditure Records, AC:10.0; Nutrition Education Expenditures, AC:10.1; Breast-feeding Promotion Expenditures, AC:10.2; Lost and Stolen Equipment, AC:11.0; Sale or Disposition of Property, AC:12.0; Procurement Procedure, AC:13.0; Audit of Local Agencies, AUD:01.0; Automation Change Management, AUT:01.0; Computer Environment and Platform Modifications, AUT:02.0; Backups, AUT:03.0; Telephone With Data Communications Capabilities, AUT:04.0; Repair of Computer Equipment, AUT:05.0; Surge Protector Requirement, AUT:06.0; Requests for New or Additional Computers and/or Peripherals; AUT:07.0; Breast-feeding Promotion Standards, BF:01.0, Local Breast-feeding Coordinator, BF:02.0; Breast-feeding Peer Counselor, BF:03.0; Breast-feeding Training, BF:04.0; Participant's Rights and Obligations, CR:01.0; Providing Oral and Written Program Information to Non-English or Limited-English Speaking Persons, CR:02.1; Nondiscrimination Statement, CR:02.2; Civil Rights Compliance Reviews CR:04.0; Civil Rights Complaints, CR:04.1; Processing Civil Rights Violations; CR:05.0; Local Agency Processing of Participant Civil Rights Complaints, CR:06.0; Provision of Service to the Handicapped; CR:07.0; Provision of Services to Families with Special Health Care Needs, CR:07.1 ; Civil Rights Training, CR:08.0; Collection of Racial/Ethnic Data, CR:09.0; Proof of Pregnancy as a Certification Requirement, CS:01.1.1; Midpoint Screening, CS:01.2.1; Time Frames for Processing Applicants, CS:01.3; Appointment System, CS:01.3.1; Inactivation for Failure to Pick Up Food Vouchers, CS:01.5; Caseload Management; CS:01.7; Waiting List for WIC; CS:01.8; Waiting List Recall, CS:01.8.1; Preventing & Detecting Dual Participation, CS:02.2; Collection and Use of Social Security Numbers, CS:03.6; Completion of the Family Certification Form/Release List, CS:03.7; Participant Priority of Risk, CS:04.0; Documentation of a Complete Nutritional Assessment, CS:04.1; Criteria for Identifying Nutritional Risk Conditions; CS:04.2; Infant Born to High Risk or WIC Mother, CS:04.3; Procedures For Weighing and Measuring, CS:04.4; Measuring Equipment, CS:04.4.1; Weighing Equipment, CS:04.4.2; Determination of Hematocrit or Hemoglobin, CS:04.5; Equipment for Determination of Hemoglobin and Hematocrit, CS:04.5.2; Calibration of Hematocrit and Hemoglobin Equipment, CS:04.5.3; Assessment of Dietary Pattern, CS:04.6; Assessment of Medical History, CS:04.7; Use of Medical Data Taken Prior to The Time Eligibility Is Determined, CS:04.9; Competent Professional Authority, CS:05.1; Competent Professional Authority, CS:05.1.a; Issuance of WIC Family Identification Cards, CS:06.0; Issuance of Duplicate Family Identification Cards, CS:06.1; Issuance of Verification of Certification, CS:06.2; Enrollment of Transferring Participants; CS:07.0; Certification Data Entry Forms, CS:09.1; Completing the Supplemental Information Form, CS:09.2; Completion and Issuance of Food Vouchers, FD:01.0; Frequency of Issuance of WIC Food Vouchers, FD:01.2; Signing of Food Voucher By a Proxy; FD:02.0; Disposition of Voided and Destroyed Food Vouchers, FD:03.0, Replacement of Voided Food Vouchers, FD:03.1; Documenting Missing/Stolen Food Vouchers, FD:04.0; Action to be Taken When Issued Vouchers Are Reported Lost/Stolen by a Participant, FD:05.0; Liability of Local Agency for Food Voucher Inventory Shortages, FD:06.0; Mailing Food Vouchers, FD:07.0; WIC Food Voucher Supplies, FD:08.0; Transfer of Texas WIN Inventory, FD:09.0; Food Packages, FD:22.0; Tailoring Food Packages to Meet Individual Needs, FD:23.0; Program Benefits for Homeless Individuals and Those Lacking Refrigeration, FD:23.1; Issuance of Contract Formula, FD:24.0; Use of Contract Formula Samples; FD:24.0.1; Issuance of Iron-Fortified Ready-To-Use Formula, FD:24.1; Issuance of Non-Contract Formulas and Medical Nutritional Products, FD:24.2; Issuance of Formula to Children and Women with Special Dietary Needs, FD:24.4; Intolerance to All Authorized Formulas, FD:24.6; Issuance of Dry Beans/Peanut Butter, FD:25.0; Reporting of Participant Abuse, FD:29.0.1; Exchange of Formula Between Issuance Dates, FD:32.0; Exchange of Out-of-State Food Instruments, FD:33.0; Conflict of Interest - Local Agency Officials, FD:36.0, Public Information - General, GA:03.0; Public Information - Policy and Procedure Manual, GA:03.1; Confidentiality of Participant Information; GA:03.2; Confidentiality, GA:04.0; Claims Against Local Agencies, GA:06.0; Disposal of Program Records, GA:07.0; Local Agencies Agreement for the Provision of Health Services, GA:08.1; Contracts and Agreements with Local Agencies, GA:08.0; Local Agency Outreach GA:09.0; Coordination of Program Operations, GA:09.2; Provision of Information to WIC Applicants, GA:09.2.1; Provision of Food Stamp, AFDC, Medicaid, EPSDT, and Child Support Enforcement Information to WIC Applicants, GA:09.2.2; Local Agency Coordination with Hospitals, GA:09.2.3; Eligibility of Local WIC Employees for WIC Services; GA:10.0, Availability of Health Services to WIC Participants, GA:11.0; Agreements and/or Letters of Endorsement from County Agencies, GA:12.0; Use of State Appropriated Fund; GA:15.0; Access to Appointments, GA:16.0; Follow-Up of Pregnant Applicants, GA:16.1; Designation of a Local Agency WIC Director, GA:17.0; Employee Immunization Requirements, GA:18.0; Compliance with the Clinical Laboratory Improvement Amendment of 1988 (CLIA), GA:19.0; No Smoking in Local Agencies, GA:20.0; Compliance with the National Voter Registration Act of 1993, GA:21.0; Operational Procedures, IM:02.0; Standing Delegation Orders, IM:02.1; Monitoring Storage of Vaccines, IM:05.0; Quality Assurance, IM:06.5; Vaccine Distribution and Accountability, IM:07.1; Vaccine Adverse Event Reporting System, IM:07.2; Immunization Records, IM:09.0; and Local Immunization Plan, IM:10.0; Local Agency Self Audit, MON:01.0; Review of Vendors by Local Agencies, MON:02.0; State Agency Monitoring of Clinical Operations and Fiscal/Food Delivery Systems, MON:03.0; Local Nutrition Education Coordinator, NE:01.0; Nutrition Education Plan, NE:01.1; Mailing Nutrition Education Materials to Participants, NE:01.7; Definition of Nutrition Education Contact; NE:02.0; Standards for Nutrition Education Contacts, NE:02.1; Standards for Group Classes, NE:02.2; Standards for Individual Counseling, NE:02.3; Nutrition Education Lessons, NE:03.0; Documentation of Nutrition Education Attendance or Nonattendance, NE:04.0; Nutrition Education for Advanced Issuance, NE:04.2; Categorical Classes, NE:04.3; Nutrition Education Audiovisuals, NE:05.0; Distributed or Loaned Nutrition Education Materials, NE:05.1; Purchase of Foods for Demonstration in Nutrition Education; NE:06.0; Local Outreach Coordinator; OR:01.0; In-Service Orientation to New Local Agencies, TR:01.0; Orientation and Training of Local Agency Directors, TR:01.1; Local Training Coordinator, TR:02.0; and Required Local Agency and Clinic Staff Training, TR:03.0.

Gerald D. Cannaday Jr., Chief, Bureau of Nutrition Services, has determined that for each year of the first five years the sections are in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the sections as proposed.

Mr. Cannaday has also determined that for each year of the first five years the sections are in effect, the public benefits anticipated as a result of enforcing or administering the sections will be clarification of and increased efficiency in their enforcement. There will be no costs to micro- businesses or small businesses to comply with the sections as proposed. The proposed new sections which affect only local agencies cannot result in costs to micro-businesses or small business because federal regulations require that all local agencies must be nonprofit entities. Since the new sections which affect vendor eligibility and/or participation in the WIC Program are being proposed without substantive changes to those currently adopted by reference in §31.1, the new sections will result in no changes for current or prospective WIC food vendors which are micro-businesses or small businesses. Section 31.2 concerning the Register of Mother-Friendly Businesses and §31.3 concerning the Farmers' Market Nutrition Program are being repealed and proposed as new §§31.1, 31.11, and 31.12 without substantive changes and so will result in no costs to micro-businesses or small businesses. There are no anticipated economic costs to persons who are required to comply with or are affected by the sections as proposed for the same reason. There is no anticipated impact on local employment.

Comments on the proposal may be submitted to Valerie Wolfe, Policy Director, Bureau of Nutrition Services, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7444. Comments will be accepted for 30 days following publication of the proposal in the Texas Register . Copies of the policies proposed for deletion are available from the WIC Program's web site at http://www.tdh.state.tx.us/wichd/policy/idx_policy.htm under WIC Policies and Procedures Manual. In addition, a public hearing will be held on February 23, 2001, at 9:00 a.m. in Room M-653, Moreton Building, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756.

25 TAC §§31.1 - 31.3

(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 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 on the board, the department, or the commissioner of health; the Texas Omnibus Hunger Act of 1985, Acts 1985, 69th Legislature, Chapter 150, Title II; Human Resources Code, Chapter 33; the Child Nutrition Act of 1966, 42 USC §1786, as amended; and 7 CFR Part 246.

The repeals affect the Texas Omnibus Hunger Act of 1985, Acts 1985, 69th Legislature, Chapter 150, Title II; and Human Resources Code, Chapter 33.

§31.1.Special Supplemental Food Program for Women, Infants, and Children (WIC).

§31.2.Farmers' Market Nutrition Program.

§31.3.Register of Mother-Friendly Businesses.

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 19, 2001.

General Counsel

Texas Department of Health

Earliest possible date of adoption: March 4, 2001

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

Subchapter A. REGISTER OF MOTHER-FRIENDLY BUSINESSES

25 TAC §31.1

The new section is proposed under 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 on the board, the department, or the commissioner of health; the Texas Omnibus Hunger Act of 1985, Acts 1985, 69th Legislature, Chapter 150, Title II; Human Resources Code, Chapter 33; the Child Nutrition Act of 1966, 42 USC §1786, as amended; and 7 CFR Part 246.

The new section affects the Texas Omnibus Hunger Act of 1985, Acts 1985, 69th Legislature, Chapter 150, Title II; and Human Resources Code, Chapter 33.

§31.1.Register of Mother-Friendly Businesses.

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

Mother-friendly business - A business that actively promotes and supports breast-feeding by its employees.

Department - Texas Department of Health

Minimum standards. To be considered mother-friendly, a business must:

adhere to the definition of a mother-friendly business;

provide work schedule flexibility to allow employees time for either expressing breast milk or breast-feeding;

provide employees access to a private area for either expressing breast milk or breast-feeding;

provide access to a sink; and

provide access to a hygienic place to store expressed breast milk.

Application for designation as a mother-friendly business. To apply for designation as a mother-friendly business, a business must:

complete a mother-friendly application. Applications are available from the Bureau of Nutrition Services (BNS), Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756 and should be completed by the contact person for mother-friendly activities. Completed applications should be returned to the department's Bureau of Nutrition Services; and

submit completed applications for review. Completed applications will be reviewed by the staff of the Bureau of Nutrition Services for compliance with the minimum standards set forth in subsection (b) of this section. Businesses that meet the standards will receive a letter signed by the Commissioner of Health and a certificate suitable for framing and display. Businesses that do not meet the standards will be notified by letter and will be offered technical assistance to achieve compliance.

Maintaining designated status. A business designated as mother-friendly must:

be listed as such by the department. The list of mother-friendly businesses will be maintained by the staff of the department's Bureau of Nutrition Services. The department will make the list available for public inspection;

keep the staff of the Bureau of Nutrition Services informed of any changes in the company's mother-friendly policies. If its mother-friendly policies change, a business must submit an amended application; and

comply with minimum standards at all times. If a business does not comply with the program's minimum standards at all times, the department may suspend or revoke the mother-friendly designation. A business may amend its nonconforming policies and may reapply for the mother-friendly designation. Employees and clients should direct complaints about the activities of a business that employs the mother-friendly designation to the department's Bureau of Nutrition Services.

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 19, 2001.

General Counsel

Texas Department of Health

Earliest possible date of adoption: March 4, 2001

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

Subchapter B. FARMERS' MARKET NUTRITION PROGRAM

25 TAC §31.11, §31.12

The new sections are proposed under 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 on the board, the department, or the commissioner of health; the Texas Omnibus Hunger Act of 1985, Acts 1985, 69th Legislature, Chapter 150, Title II; Human Resources Code, Chapter 33; the Child Nutrition Act of 1966, 42 USC §1786, as amended; and 7 CFR Part 246.

The new sections affect the Texas Omnibus Hunger Act of 1985, Acts 1985, 69th Legislature, Chapter 150, Title II; and Human Resources Code, Chapter 33.

§31.11.Definitions.

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

Coupon - A coupon, voucher or other negotiable financial instrument by which benefits under the Farmers' Market Nutrition Program are transferred to recipients.

Farmer - An individual authorized to sell produce at participating farmers' markets.

Farmers' market association - An association of local farmers who assemble at a defined location for the purpose of selling their produce directly to consumers.

Farmers' market agreement - The formal and legally binding agreement between the Texas Department of Health and a vendor authorized to accept and redeem WIC Farmers' Market Nutrition Program coupons.

Farmers' market nutrition program - Section 17 of the Child Nutrition Act of 1966, as amended, authorizes the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). Subsection 17(m) of the Child Nutrition Act, as amended, authorizes the Farmers' Market Nutrition Program.

State agency - The Texas Department of Health in its role as administrator of the WIC Program.

§31.12.Farmers' Market Nutrition Program Agreement with the State Agency.

Once a farmers' market association has been approved to participate in the Farmers' Market Nutrition Program, a written farmers' market agreement shall be prepared and signed by authorized officials of the state agency and the farmers' market association.

The agreement shall be prepared by the state agency and submitted to the farmers' market associations for endorsement.

Upon receipt, an official of the farmers' market association shall enter the association's name, address, telephone number, federal income tax number, and State of Texas Comptroller number, and shall sign the agreement on behalf of the association.

The farmers' market association shall complete and execute an agreement for each member farmer who will be redeeming Farmers' Market Nutrition Program coupons. On the agreement, the association shall assign a unique four digit outlet number to each farmer and shall provide each farmer's mailing address, street address (if different), home and work phone numbers, and social security number. The agreement shall be signed and dated by each farmer and the association official.

The completed association agreement and the farmer agreements shall be returned to the state agency.

The state agency shall assign each farmers' market association a four-digit account number and shall record it upon the agreement between the department and the association.

After the agreement is signed by the state agency official, one copy shall be forwarded to the association and another copy sent to the WIC local agency affected. The original document shall be retained by the state agency.

If farmers join an association after the association's agreement has been executed, the association shall complete and submit a farmer agreement for each new member farmer to the state agency.

If a farmer ceases to be a member of an association, the association shall notify the state agency that the farmer will no longer be redeeming Farmers' Market Nutrition Program coupons through that association.

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 19, 2001.

General Counsel

Texas Department of Health

Earliest possible date of adoption: March 4, 2001

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

Subchapter C. SPECIAL SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN, INFANTS, AND CHILDREN (WIC)

25 TAC §§31.21 - 31.37

The new sections are proposed under 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 on the board, the department, or the commissioner of health; the Texas Omnibus Hunger Act of 1985, Acts 1985, 69th Legislature, Chapter 150, Title II; Human Resources Code, Chapter 33; the Child Nutrition Act of 1966, 42 USC §1786, as amended; and 7 CFR Part 246.

The new sections affect the Texas Omnibus Hunger Act of 1985, Acts 1985, 69th Legislature, Chapter 150, Title II; and Human Resources Code, Chapter 33.

§31.21.Definitions.

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

Adjunctively income eligible - A determination that an applicant meets the income eligibility requirements by virtue of being able to document his or her eligibility for another program.

Applicant - A pregnant, breast-feeding or postpartum woman; infant; or child who is applying to receive WIC Program benefits and includes individuals who are subsequently applying after the expiration of a certification period.

Arms-length transaction - A good faith business transaction between parties, each acting voluntarily in his own self-interest, without necessary advantage to the other in a manner consistent with prevailing business practice.

Breast-feeding - The practice of feeding a mother's breastmilk to an infant on the average of at least once a day.

Breast-feeding woman - A woman up to one year postpartum who is breastfeeding.

Caretaker - An individual age 18 years or older who is related to and has custodial responsibility for a WIC Program participant during the majority of a participant's time awake each day.

Categorical eligibility - Eligibility for WIC Program benefits based on a person's status as a pregnant woman, breast-feeding woman, postpartum woman, infant, or child.

Certification - The implementation of criteria and procedures to assess and document each applicant's eligibility for the WIC Program.

Child - A person who has had his or her first birthday but has not yet had his or her fifth birthday.

Competent professional authority - An individual on the staff of the local agency authorized to determine nutritional risk and prescribe supplemental foods.

Current income - The most recent income data and documentation available to the applicant; usually the income received by the family in the month prior to application.

Disqualification - The act of ending the WIC Program participation of a participant, authorized food vendor, or authorized local agency, whether as a punitive sanction or for administrative reasons.

Dual participation - Simultaneous participation in the WIC Program through one or more WIC clinics, or participation in the WIC Program and in the Commodity Supplemental Food Program at the same time.

Family - A group of related or non-related individuals who are living together as one economic unit, except that residents of a homeless facility or institution shall not be considered members of a single family.

Federal fiscal year - The 12-month period beginning October 1 of any calendar year and ending September 30 of the following calendar year.

Food instrument - A voucher, check, electronic benefits transfer card (EBT), coupon, or other document which is used by a participant to obtain supplemental foods.

Guardian - An individual legally appointed and responsible to look after the affairs of a minor.

Homeless facility - A facility which provides meal service and is a supervised publicly or privately operated shelter (including a welfare hotel, a congregate shelter, or a shelter for victims of domestic violence) designated to provide temporary living accommodation; an institution that provides a temporary residence for individuals intended to be institutionalized; or a public or private place not designated for, or ordinarily used as, a regular sleeping accommodation for human beings.

Homeless individual - A woman, infant, or child who lacks a fixed and regular nighttime residence; or whose primary nighttime residence is: a supervised publicly or privately operated shelter (including a welfare hotel, a congregate shelter, or a shelter for victims of domestic violence) designated to provide temporary living accommodation; an institution that provides a temporary residence for individuals intended to be institutionalized; a temporary accommodation in the residence of another individual not exceeding 365 days; or a public or private place not designated for, or ordinarily used as, a regular sleeping accommodation for human beings.

Infant - A person under one year of age.

Income - Gross income before deductions or net income after business deductions for farm or self-employed individuals.

Individual with disabilities - A person who has a physical or mental impairment that substantially limits one or more major life activities; a person who has a history or record of such an impairment; or a person who is perceived by others as having such an impairment. Major life activities include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

Instream migrant farmworker - A migrant farmworker who follows a route or travels from state to state seeking agricultural work and is not currently at his or her home base.

Local agency - An entity under contract to the State agency to provide WIC Program nutrition services.

Migrant farmworker - An individual whose principle employment is in agriculture on a seasonal basis, who has been so employed within the last 24 months, and who establishes, for the purpose of such employment, a temporary abode.

Newborn infant - An infant less than one month of age.

Nonprofit agency - A private agency which is exempt from income tax under the Internal Revenue Code of 1954, as amended.

Nutrition education - A benefit offered to WIC Program participants which consists of individual or group education sessions and the provision of information and educational materials designed to improve health status, achieve positive change in dietary habits, and emphasize the relationships between nutrition and health, all in keeping with the individual's personal, cultural, and socioeconomic preferences.

Nutritional risk conditions - Detrimental or abnormal nutritional conditions detectable by biochemical or anthropometric measurements; other documented nutritionally-related medical conditions; dietary deficiencies that impair or endanger health; conditions that directly affect the nutritional health of a person; or conditions that predispose persons to inadequate nutritional patterns or nutritionally-related medical conditions, including, but not limited to, homelessness and migrancy.

Nutritional risk priorities - A system of priorities based on specific nutritional risk conditions with indices for identifying these conditions.

Nutritional risk priority system - A priority system which ranks participants according to the degree of need for supplemental foods represented by the nutritional risk conditions which the participant has. This system shall be used to prioritize new applicants and participants for eligibility for services when a local agency has reached its maximum participation level.

Parent - An individual's mother or father.

Participant - A pregnant woman, breast-feeding woman, postpartum woman, infant, or child who is receiving supplemental foods or food instruments under the WIC Program, and the breast-fed infant of a participating breast-feeding woman.

Postpartum woman - A woman up to six months after termination of pregnancy.

Poverty income guidelines - The poverty income guidelines prescribed and adjusted annually by the United States Department of Health and Human Services, effective July 1 of each year.

Pregnant woman - A woman determined to have one or more embryos or fetuses in utero.

Regulations - United States Department of Agriculture regulations, 7 CFR Part 246.

Separate economic unit - A group of individuals who indicate that they have a source of income adequate to sustain the unit and usually purchase and prepare food separately from other individuals dwelling in the same household, or a group of individuals who intend to purchase and prepare food separately from other individuals dwelling in the same household after being certified as eligible to receive benefits from the WIC Program.

Shelf price - The price normally charged all customers by a vendor for an item sold by the vendor.

State agency - The Texas Department of Health in its role as administrator of the WIC Program.

Supplemental foods - Those foods containing nutrients determined to be beneficial for pregnant, breast-feeding, or postpartum women, infants, and children as prescribed by the United States Secretary of Agriculture.

United States Department of Agriculture (USDA) - The federal agency which funds the WIC Program.

Vendor account - A vendor approved by the state agency with one or more outlets.

Vendor agreement - The formal and legally binding agreement between the Texas Department of Health and a vendor authorized to accept and redeem WIC Program food instruments.

Vendor band - A comparison group of WIC Program vendors based on monthly WIC sales volume for each account.

Vendor competitive pricing - The process of comparing the cost of a standard WIC Program food package for a woman, infant, or child at an outlet to the cost of an average standard food package for the local agency service area where the vendor is located. Vendor accounts of a similar WIC dollar volume are compared within the same local agency service area.

Vendor outlet - An individual store location or mobile unit.

Vendor profile - A form which includes demographic, financial, and other descriptive information for each vendor outlet.

WIC program - The Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) authorized by the Child Nutrition Act of 1966, §17, as amended.

§31.22.Recipient Eligibility Requirements.

An individual shall be eligible to receive services when the individual receives local agency approval after meeting all of the following requirements.

Be determined categorically eligible.

If a woman, be pregnant or not more than six months postpartum if not breast-feeding or within one year postpartum if breast-feeding; or

If a child, be under age five.

Physically reside within the State.

The applicant shall provide documentation of residency within the local agency's approved service area.

The following documents shall be accepted as documentation of residency: utility bill; credit card bill; rent receipt; drivers license; rental agreement; business letter from an office other than the local agency; other bills; letter from the person the applicant lives with accompanied by documentation of that person's address; voter registration card; property tax receipt; documentation by a third party such as the staff of a church, social service agency, legal-aid society, school, or a public health official, nurse, doctor, or elected public official; homeless facility documentation; or documentation of adjunctive income eligibility.

If none of the documents referenced in this section exists, an applicant may provide a map indicating where the applicant lives.

A homeless individual may complete a WIC Program affidavit stating he or she is homeless or is the parent, caretaker, or guardian of a homeless applicant.

If residency has been documented for another family member within the 60-day period prior to application, that documentation shall be sufficient for meeting the residency requirement.

meet the income requirements as follows:

Income guidelines shall not exceed 185% of the federal poverty income guidelines.

Applicants shall provide documentation of the amount of income received by each member of the family at each certification and subsequent certification except as provided in this subsection.

Income includes the following:

wages, salary, commissions, or fees;

net income from farm and non-farm self-employment;

Social Security benefits;

dividends or interest on savings or bonds, to include interest on certificates of deposit (CD) and Individual Retirement Accounts (IRA), income from estates or trusts, or net rental income;

public assistance or welfare payments;

unemployment compensation;

government civilian employee or military retirement or pensions, or veterans' payments;

private pensions or annuities;

alimony or child support payments;

regular contributions from persons not living in the household;

lump sum payments which are considered as "new money" received in the last 12 months would include but are not limited to gifts, inheritances, lottery winnings, worker's compensation for lost income, and severance pay;

student financial assistance, such as grants and scholarships, except those grants and scholarships excluded as income as listed in this section;

capital gains and interest earned on the sale amount. If there was a loss on the sale, the amount of interest earned on the sale amount is counted as income. This applies only to capital gains and losses within the past 12 months. Gains from any sale prior to last 12 months shall be computed according to clause (iv) of this subparagraph; and

other cash income, which includes, but is not limited to, cash amounts received or withdrawn from any source including savings, investments, trust accounts and other resources which are readily available to the family.

Exclusions from income include, but are not limited to, the following:

any basic allowance for quarters received by military personnel residing off military installations;

the value of inkind housing and other inkind benefits, including, but not limited to, the employer-paid or union-paid portion of health insurance premiums or other employee fringe benefits, food, or housing received in lieu of wages;

lump sum payments classified as "reimbursement", such as monies received from insurance companies for loss or damage to real or personal property, such as a home or auto, and payments received from a third party to pay for a specific expense such as medical bills resulting from accident or injury;

operating expenses for those individuals who are self- employed. For farm income, operating expenses include, but are not limited to, cost of feed, fertilizer, seed, and other farming supplies; cash wages paid to farmhands; depreciation; cash rent; interest on farm mortgages; farm building repairs; and property taxes (but not state and federal income taxes). For nonfarm self-employed persons, operating expenses include, but are not limited to, the cost of goods purchased, rent, heat, utilities, depreciation, wages and salaries paid, and business taxes (but not personal income taxes). Applicants shall complete a WIC Program affidavit or provide written business records;

loans, such as bank loans, which are temporarily available but must be repaid;

payments or benefits provided under certain federal programs or acts which must be excluded by federal law include, but are not limited to the following: reimbursements from the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970; any payment to volunteers under Title I (VISTA and others) and Title II (RSVP, foster grandparents, and others) of the Domestic Volunteer Service Act of 1973, to the extent excluded by that Act; payment to volunteers under the Small Business Act (SCORE and ACE), §8(b)(1)(B); income derived from certain submarginal land of the United States which is held in trust for certain Indian tribes; payments received under the Job Training Partnership Act; income derived from the disposition of funds to the Grand River Band of Ottawa Indians; payments received under the Alaska Native Claims Settlement Act; the value of assistance to children or their families under the National School Lunch Act, as amended; the Child Nutrition Act of 1966; and the Food Stamp Act of 1977; payments by the Indian Claims Commission to the Confederated Tribes and Bands of the Yakima Indian Nation or the Apache Tribe of the Mescalero Reservation; payments to the Passamaquoddy Tribe and Penobscot Nation or any of their members received pursuant to the Maine Indian Claims Settlement Act of 1980; payments under the Low- Income Home Energy Assistance Act, as amended; student financial assistance received from any program funded in whole or part under Title IV of the Higher Education Act of 1965, including the Pell Grant, Supplemental Educational Opportunity Grant, State Student Incentive Grants, National Direct Student Loan, PLUS, College Work Study, and Byrd Honor Scholarship programs, including any assistance received from these programs used for tuition and fees, the costs for rental or purchase of any equipment, materials, or supplies required of all students in the same course of study, and an allowance for books, supplies, transportation, and miscellaneous personal expenses for a student attending a higher education institution on at least a half-time basis, as determined by the institution, but not including room and board and dependent care expenses; payments under the Disaster Relief Act of 1974, as amended by the Disaster Relief and Emergency Assistance Amendments of 1989; payments received under the Carl D. Perkins Vocational Education Act, as amended by the Carl D. Perkins Vocational and Applied Technology Educational Act Amendments of 1990; payments pursuant to the Agent Orange Compensation Exclusion Act; payments received for Wartime Relocation of Civilians under the Civil Liberties Act of 1988; value of any child care payments made under the Social Security Act, §402(g)(1)(E), as amended by the Family Support Act; value of any "at-risk" block grant child care payments made under Public Law 101-508, §5081; value of any child care provided or paid for under the Child Care and Development Block Grant Act, as amended; mandatory salary reduction amount for military service personnel which is used to fund the Veteran's Educational Assistance Act of 1984 (GI Bill), as amended; payments received under the Old Age Assistance Claims Settlement Act, except for per capita shares in excess of $2000; payments received under the Cranston-Gonzales National Affordable Housing Act, unless the income of the family equals or exceeds 80% of the median income of the area; payments received under the Housing and Community Development Act of 1987; unless the income of the family increases at any time to not less than 50% of the median income of the area; payments received under the Sac and Fox Indian claims agreement; payments received under the Judgement Award Authorization Act, as amended; payments for the relocation assistance of members of Navajo and Hopi Tribes; payments to the Turtle Mountain Band of Chippewas (Arizona); payments to the Blackfeet, Grosventre, and Assiniboine tribes (Montana) and the Papage (Arizona); payments to the Assiniboine Tribe of the Fort Belknap Indian community and the Assiniboine Tribe of the Fort Peck Indian Reservation (Montana); payments to the Red Lake Band of Chippewas; payments received under the Saginaw Chippewas Indian Tribe of Michigan Distribution of Judgement Funds Act; and payments to the Chippewas of Mississippi.

Acceptable documentation of income are: check stubs stating current earnings; United States Internal Revenue Service form W-2 if less than 90 days old at the time of application and if reflective of current income; a signed statement from the employer; completion of WIC Program affidavit allowed in specific circumstances such as for homeless or those with no income; completion of WIC Program affidavit for self-employed individuals with no business accounting records or who are paid in cash and whose employer will not provide documentation of income; bankbook, if reflective of current income; current federal tax records; income receipt book or other accounting records if self-employed; foster child placement letter; other documentation which the local agency requests to use and which has been approved by the state agency; and the placement letter from the welfare agency legally responsible for a foster child.

Only one document is required, such as one check stub for each source of income as long as the document is no older than 60 days unless the applicant only receives such documentation annually, such as a Social Security Award letter.

Instream migrant farmworkers and their families are required to provide documentation of meeting the income requirements only once every 12 months.

Certain applicants shall be deemed adjunctively income eligible as follows.

Applicants who are fully eligible to receive Food Stamps benefits or who are fully eligible or presumptively eligible to receive Temporary Assistance to Needy Families benefits or Medicaid benefits.

Applicants who are members of families in which one other member is fully eligible or presumptively eligible to receive Temporary Assistance to Needy Families benefits.

Applicants who are members of families in which a pregnant woman or infant is fully eligible or presumptively eligible to receive Medicaid benefits.

Applicants shall provide proof of their status as an applicant who is adjunctively income eligible as follows.

The applicant shall provide written documentation from the other benefit program which shows current eligibility in the benefit program at the time of application to the WIC Program.

The applicant may grant permission for the local agency to conduct a phone or computer on-line verification from the benefit program on behalf of the client when the local agency has the capability to do so.

Applicants eligible to receive Food Stamp benefits shall provide documentation that the applicant himself or herself is fully eligible to receive such benefits.

Applicants applying as adjunctively income eligible based on receipt of Food Stamps by a family member as head of household shall provide documentation that the person named as head of household for Food Stamps purposes is a member of the applicant's family and is fully eligible to receive such benefits.

Applicants eligible to receive Temporary Assistance to Needy Families or Medicaid shall provide documentation that the applicant himself or herself is fully or presumptively eligible to receive such benefits.

Applicants applying as adjunctively income eligible based on a family member's eligibility to receive Temporary Assistance to Needy Families or Medicaid shall provide documentation of the family member's receipt of such benefits and that the recipient is a member of the applicant's family.

Applicants eligible for adjunctive income eligibility shall verbally declare their total gross family income or net income if self-employed.

Income eligibility shall be based on the total income of the family.

When determining an applicant's income eligibility for WIC Program services, the local agency shall determine the size of the applicant's family as follows:

All family members shall be counted except for individuals who qualify as a member of a separate economic unit.

A pregnant woman shall be counted as more than one person according to the number of children she expects to give birth to. If she is expecting one child, she shall be counted as two individuals; if she is expecting twins, she shall be counted as three individuals and so on.

A foster child shall be considered a separate family of one.

Persons temporarily absent from the family may be counted if the following circumstances exist:

other members still consider the family to be the principal residence of the absent member;

the absence does not exceed six months;

the absence is for a purpose such as school, training, employment, hospitalization, or institutionalization; and

the absent member continues to exercise customary family responsibilities such as income, planning, or physical care.

Some individuals may qualify as a separate economic unit as an exception if the unit has an adequate source of income and usually purchases and prepares food separately from other persons who live in the same dwelling or the unit intends after certification to purchase and prepare food separately from other persons who live in the same dwelling. The following shall not be certified as a separate economic unit:

minor children who live with their parent or parents;

a child under age 18 who lives with family members who serve as managing conservators and provide more than half of the child's support, and the family members state that the child is under parental control;

two people who live together and represent themselves to the community as husband and wife.

Individuals who have been determined eligible for WIC Program services are not required to report changes in income during certification periods.

The local agency has no responsibility to monitor the continued income eligibility of the participant during the certification period.

If the local agency becomes aware of changes in income during a certification period, the participant shall be reassessed for income eligibility under the rules for determining income eligibility.

have one or more nutritional risk conditions as defined by the United States Department of Agriculture's national nutritional risk codes and conditions, nutritional risk priorities, and nutritional risk priority system.

At subsequent certification, if there is a possibility of regression in nutritional status without WIC nutrition education and supplemental foods, an applicant may be determined at nutrition risk for regression by the competent professional authority.

Regression shall be used only at a subsequent certification and only when no other risk condition can be determined.

Applicants may be certified for regression for one certification period only.

be physically present at the initial WIC Program certification and the subsequent certification:

Exceptions may be granted in limited circumstances if approved by the competent professional authority as follows.

Newborn infants may be certified without being physically present if all required documentation is available, the local agency has elected to implement this practice, and the infant is physically presented to the local agency by the time the infant is six weeks of age.

An applicant or parent, caretaker, or guardian of an applicant who is an individual with a disability may be certified without being physically present because he or she is unable to be physically present because of his or her disability.

Disability conditions which meet this standard are a medical condition that necessitates the use of medical equipment that is not easily transportable; a medical condition that requires confinement to bed rest; or a serious illness that may be exacerbated by coming into the local agency.

A verbal declaration by the applicant or parent, caretaker, or guardian of the applicant that the applicant has a disability and cannot be physically present is sufficient to request the exception.

An infant, other than a newborn infant, or child may be certified without being physically present if being physically present would present an unreasonable barrier and the infant or child has documented ongoing health care from a health care provider other than the WIC local agency.

An infant, other than a newborn infant, or child may be certified without being physically present if the infant or child was physically present at a WIC Program certification or subsequent certification within the one-year period which ended on the date the infant or child was last certified or subsequently certified and the infant or child is under the care of one or more working parents, caretakers, or guardians who verbally declare that their working status presents a barrier to bringing the infant or child to the WIC local agency.

Exemptions may be granted for one certification period, or for an extended period of time if the competent professional authority approves the extended period of time.

provide documentation of identification:

The following documents shall be accepted as documentation of identification: birth certificate; hospital records, including a "crib" card, hospital wrist band, or discharge papers; baptismal certificate; marriage license; drivers license; WIC Family Identification Card; immunization card; school identification card; employment identification card; military identification card; official identification card with picture; passport or immigration records; letter from Medicaid, Food Stamps, Temporary Assistance to Needy Families, or the Supplemental Security Income Programs; indigent health care identification card; paycheck stub with imprinted name; voter registration card; identification card from another WIC local agency; Social Security card; housing or rental lease; loan papers from a bank or finance company; or property tax receipt.

Each local agency may designate additional documents which shall be accepted as documentation of identification with the approval of the state agency.

Citizenship is not a requirement for eligibility.

As long as the local agency has caseload openings, individuals who qualify for WIC Program services shall be served without regard to citizenship status.

No individual's participation in the WIC Program may be terminated because the individual is suspected as or known to be an undocumented alien.

WIC Program confidentiality requirements apply to all applicants and participants regardless of their citizenship status.

§31.23.Recipients of Supplemental Food Benefits.

Regardless of their age, pregnant, breast-feeding, and postpartum participants may be designated as recipients of supplemental food benefits for themselves and/or their infants and/or children.

Regardless of their age, parents, guardians, caretakers, or foster parents of infant and/or child participants may be designated as recipients of supplemental food benefits for their infants and/or children.

Caretakers of a participant may be designated as recipients of supplemental food benefits for the participant if the caretakers are at least 18 years of age or older.

A proxy who is 16 years of age or older may be designated in writing by a WIC Program participant, or parent, caretaker, guardian of a participant, or a foster parent to act as the supplemental food benefit recipient. Each time a proxy is designated to act as the recipient, such designation shall be provided in writing to the local agency, and the proxy shall provide identification for himself or herself and present the participant's WIC Program family identification card.

Not more than one month's supplemental food benefits may be issued to a proxy.

Proxies of participants residing in a homeless facility or institution shall not pick up supplemental food benefits for all WIC Program participants in their respective homeless facilities or institutions or transact the food instruments in bulk. The proxy may act on the behalf of only one certified family.

Recipients of supplemental food benefits shall sign the WIC Program Supplemental Information Form prior to receiving such benefits.

Recipients of supplemental food benefits shall provide identification at each issuance of food benefits.

§31.24.Provision of Immunizations to WIC Applicants and Participants.

Immunizations shall be offered to WIC Program applicants and participants and the siblings of WIC applicants and participants by local agencies in conjunction with scheduled WIC Program services and in accordance with the local agency immunization plan.

Applicants may receive immunizations at the time of the eligibility determination for WIC Program services regardless of the outcome of the eligibility determination.

Applicants, participants, and the siblings of applicants and participants shall be provided immunizations free of charge.

Immunizations shall be provided to infants and children only upon completion of informed consent procedures.

§31.25.Participant Certification Periods.

After eligibility has been determined, applicants shall be enrolled and certified to receive WIC Program benefits for a specified length of time. The certification period shall begin on the date the applicant is determined eligible.

A pregnant woman shall be certified to receive one set of food instruments each month for the duration of her pregnancy and is eligible to receive one set of food instruments between delivery of the baby and six weeks postpartum. The certification expiration date shall be set at six weeks after her expected delivery date.

A postpartum woman who is not breast-feeding shall be certified to receive one set of food instruments each month until she is six months postpartum. The certification expiration date shall be set for the day the woman is six months postpartum.

A breast-feeding woman shall be certified to receive one set of food instruments each month for a six-month period. The certification expiration date shall be set for the last day of the sixth month. Any subsequent certification shall expire on the day of the infant's first birthday.

A child one to five years of age shall be certified to receive one set of food instruments each month for a six-month period. The certification expiration date shall be set for the last day of the sixth month. For a child turning age five, the certification expiration date shall be set for the last day of the month the child turns age five.

An infant six months of age or older at the time of initial enrollment shall be certified to receive one set of food instruments each month for a six-month period. The certification expiration date shall be set for the last day of the sixth month.

An infant younger than six months of age at the time of initial enrollment shall be certified to receive one set of food instruments each month until the infant's first birthday. The certification expiration date shall be set for the day of the infant's first birthday.

§31.26.Notification to Applicants of Ineligibility.

An individual found ineligible for the WIC Program shall be notified in writing of the reason or reasons for ineligibility.

When ineligibility is determined at the time of the certification determination visit, the applicant or parent, caretaker, or guardian applying on behalf of an infant or child shall be notified at that time in person.

When ineligibility is determined after the certification determination visit, the applicant, participant, or parent, caretaker, or guardian of a participant shall be notified by mail.

The notification shall inform the applicant or parent, caretaker, or guardian of a participant that he or she has a right to a fair hearing.

§31.27.Notification to Participants of Certification Expiration.

Each participant shall be notified at least 15 days prior to the expiration of each certification period that eligibility is about to expire.

At the time of the notice, participants who are eligible to apply for subsequent certification shall be notified of their categorical eligibility and that they must apply in order for WIC Program benefits to continue.

§31.28.Notification to Participants of Termination of Certification.

Participants whose certification in the WIC Program is terminated for program abuse, funding shortages which require that client caseloads be decreased, or a determination that the participant's income exceeds WIC Program eligibility limits, shall be notified 15 days in advance of the date of disqualification. Such notification shall be in writing and shall include the reason for disqualification and a statement of the participant's right to a fair hearing.

If the disqualification is the result of funding shortages as determined by the state agency, the written disqualification notice shall include the categories and priorities of participants being terminated.

If the participant's income is found to exceed WIC Program eligibility limits due to an assessment of income eligibility during a certification period, the participant shall be issued one month of food instruments at the time it is determined a reassessment is necessary. The participant shall be required to present current documentation of continuing income eligibility at the next visit. If the participant also is determined ineligible at the next visit, the individual shall be terminated for exceeding the income limits.

§31.29.Applicant and Participant Rights.

Standards used for determining eligibility and participation in the WIC Program shall be applied equally to all persons regardless of sex, age, disability, race, color, or national origin.

At the time of denial of participation or disqualification from the WIC Program, each individual shall be informed in writing of the right to a fair hearing and of the method by which a fair hearing may be requested.

Any individual has the right to appeal a state agency or local agency action which results in the individual's denial of participation in or suspension or termination from the WIC Program or the assessment of an administrative claim against the individual for repayment of the cash value of improperly issued benefits.

An individual may make an oral or written request for a fair hearing.

The oral or written request shall be made within 60 days of the date of denial of participation in or suspension or termination from the WIC Program or the assessment of a claim against the individual for repayment of the cash value of improperly issued benefits.

Participants who appeal termination during a certification period and who appeal within 15 days of the date of notification of the termination, shall continue to receive WIC Program benefits until a hearing decision is reached or the certification period ends. An appeal after the 15-day time limit shall not result in continued benefits.

Applicants who are denied participation in the WIC Program at the initial certification determination or a subsequent certification determination may appeal the denial but shall not receive program benefits while the appeal is pending.

The hearing shall be scheduled within three weeks from the date the request is received. The state agency shall provide written notice of the time and place of the hearing and an explanation of the hearing procedure to the appellant at least ten days prior to the hearing.

The convenience of the appellant will be of prime consideration in the selection of the time and place of the hearing.

An impartial hearing official who did not participate in the decision under appeal shall be designated to conduct the hearing.

The appellant may be represented by an attorney or other person and shall have the right to examine, prior to the hearing, the documents and records presented in support of the decision under appeal.

During the hearing, the appellant shall have the opportunity to question or refute any testimony or other evidence and to confront and cross-examine witnesses.

The decision of the hearing official shall be based on oral and documentary evidence presented at the hearing.

The appellant and any designated representative shall be notified in writing of the hearing official's decision within 45 days from the date of the request for the hearing.

If the hearing decision is in favor of the appellant and benefits were discontinued or denied, benefits shall begin immediately.

If the hearing decision regarding suspension or disqualification from the WIC Program is in favor of the state agency, any benefits which were continued pending the outcome of the hearing decision shall be terminated by the local agency as soon as is administratively feasible.

If the hearing decision regarding the assessment of a claim against the appellant is in favor of the state agency, the state agency shall resume its efforts to collect the claim.

The state agency shall process complaints upon receipt from individuals who feel they have been treated unfairly or who have any other type of complaint about local agency actions or WIC Program policies and procedures.

Complaints may be presented either orally or in writing to the state agency.

The state agency shall document, to the extent possible, the name, address, and telephone number of the complainant; the specific location and name of the entity delivering services; the nature of the incident or action that led to the complaint; the names, titles, and business addresses of persons who may have knowledge of the complaint; and the date(s) during which the alleged actions occurred, or if continuing, the duration of such actions.

The identity of every complainant shall be kept confidential except to the extent necessary to carry out the investigation of the complaint.

The state agency shall immediately notify the local agency that a complaint has been filed and shall obtain information about the alleged actions unless the complaint alleges civil rights discrimination.

The state agency shall contact the complainant to relay what action has been taken, if any, or clarify any related policies, rules, or regulations of the WIC Program.

§31.30.Participant Fraud and Abuse.

Participants and parents, guardians, or caretakers of participants identified and documented as having abused the WIC Program shall be sanctioned.

In all cases where it is found by the state agency that a participant or parent, guardian, or caretaker of a participant unlawfully received benefits due to WIC Program abuse, including but not limited to dual participation, the state agency shall refer the matter for criminal prosecution.

If prosecution is declined by the appropriate jurisdiction or the WIC Program abuse does not involve a violation of criminal law, the state agency shall direct the local agency to initiate the following sanctions.

Upon first offense, the participant or the parent or caretaker of a participant shall be counseled regarding his or her responsibilities and warned of the penalties associated with failure to comply with WIC Program rules. Documentation of this counseling shall be maintained by the local agency in the participant's certification record.

For second and subsequent offenses, the participant shall be suspended from the program for a period of time not to exceed three months. The participant or parent or caretaker of the participant shall be informed of the right to appeal.

Suspensions may be waived by the local agency if the competent professional authority determines that suspension of benefits might cause serious health risks. Documentation of the waiver shall be maintained by the local agency in the participant's certification record.

The state agency shall attempt to recover, in cash, the value of the benefits received by a participant or the parent or caretaker of a participant as a result of participant abuse.

The state agency shall determine the amount of the benefits improperly received by a participant through an independent review of local agency records and such other procedures as the state agency considers necessary under the specific circumstances.

In cases involving criminal prosecutions for violations of law, repayment of the cash value of benefits improperly received shall become a part of any restitution agreement with the prosecutor. In such cases, the participant shall not have the right to a fair hearing by the department.

In cases involving an administrative claim but no criminal prosecution, the state agency shall notify the participant or parent, caretaker, or guardian of a participant in writing that a financial claim has been established and shall request repayment of an amount equal to the value of the benefits improperly received. The written notification shall include the reasons for the claim, the value of the benefits improperly received, and the participant's right to a fair hearing.

Participants or parents, caretakers, or guardians of participants who are identified as having engaged in verbal abuse or physical abuse of WIC Program personnel which results in obstruction of the delivery of WIC Program benefits may be sanctioned.

Verbal abuse is the verbal threat of physical abuse of local agency or state agency staff. Rude, vulgar, or generally abusive language shall not warrant a sanction.

Physical abuse is abuse which results in actual physical harm to a WIC Program employee or damage to WIC Program property.

All incidents of verbal or physical abuse shall be documented by the appropriate WIC Program staff.

For abuse which occurs at the local agency, the WIC Director shall make every effort to counsel the participant or the parent or caretaker of a participant and to correct the problem without sanctions, if possible.

Sanctions shall be applied as follows:

A participant may be suspended for verbal abuse for a maximum of 60 days if the participant is a priority V, VI, or VII. At the end of the suspension period, the participant shall be reinstated until such time as the certification period expires.

A participant shall be immediately suspended for physical abuse for a maximum of 60 days. Any civil or criminal action will be taken at the discretion of the WIC employee or local agency.

When abuse which warrants suspension occurs at a local agency, the local agency shall immediately notify the state agency.

Any participant suspended for verbal or physical abuse shall be notified of his or her right to a fair hearing.

§31.31.Selection of a Local Agency as a WIC Provider.

Selection of a local agency to provide WIC Program services will be based on the local agency priority system as follows:

A public or private nonprofit health agency which can provide ongoing routine pediatric and obstetric care or administrative services shall receive first priority consideration.

A public or private nonprofit health or human service agency which will enter into a written agreement with another agency for either ongoing pediatric and obstetric care or administrative services shall receive second priority consideration.

A public or private nonprofit health agency which will enter into a written agreement with private physicians licensed by the state to provide ongoing pediatric and obstetric care to a specific category of participants (women, infants, or children) shall receive third priority consideration.

A public or private nonprofit human service agency which will enter into a written agreement with private physicians licensed by the state to provide ongoing routine pediatric and obstetric care shall receive fourth priority consideration.

A public or private nonprofit human service agency which will provide ongoing routine pediatric and obstetric care through referral to a health provider shall receive fifth priority consideration.

No WIC Program funds shall be expended to reimburse private physicians for the health services performed.

The state agency shall establish an affirmative action each year plan to rank order each county's relative need for WIC Program services based on the total number of potentially eligible persons in each county.

The following criteria shall be used to rank each county.

Estimates of the proportion of infants below 185% of the federal income guidelines by ethnic group; and

Total live births for each county and ethnic group for the previous five years.

The affirmative action plan shall be used to identify the top one-third of Texas counties (1 through 85) as high priority due to their status as having the most unserved potentially eligible persons.

The most needy one-third of Texas counties shall be designated as targets for the most extensive outreach efforts by the state agency when soliciting for local agencies.

If no local agency has applied to provides services, the state agency shall publish a notice in the media of that area to solicit applications from other potential agencies.

The state agency shall include in the notice a brief explanation of the program, a description of the priority system, and a request that interested local agencies notify the state agency of their interest within 30 days.

The state agency shall also contact all potential agencies in the area to ensure they are aware of the opportunity to apply for selection as a local agency.

If no local agency which meets the criteria for first priority expresses an interest, the state agency may consider applications from agencies in the lower priorities.

The state agency shall fund new local agencies in conformance with the sequential ranking of the affirmative action plan and the local agency priority system.

All WIC Program initiation and expansion shall be executed utilizing a request for proposal (RFP) in accordance with USDA Food and Nutrition Services Instruction 802-1, the state agency's approved affirmative action plan, and 10 Texas Administrative Code, Chapter199, Electronic Business Daily, under one of the following conditions:

the state agency determines it is in the best interests of the state to initiate an open competitive statewide RFP;

an existing WIC Program local agency is either disqualified as a provider of WIC Program services or does not wish to continue as a local agency;

a state agency Public Health Region wishes to transfer direct WIC Program services to a local agency; or

a prospective agency satisfactorily documents to the state agency that a specific geographical area is underserved and the current WIC local agency providing services in that area is unable to provide services to that geographical area and declines to develop a collaborative effort to deliver services to meet the documented unmet need.

The state agency shall evaluate proposals to serve as a WIC Program local agency submitted in response to an RFP according to the following criteria:

the ranking of the applying agency in the established priority system;

the need for additional WIC Program services in the geographic area based upon review of the number of current participants by priority and the total number who receive services in comparison to the total number of potential eligible participants in an area, and the local agency applicant's estimate of the number to be served;

the clinic locations proposed in an application relative to the existing WIC Program local agency clinics operated by other WIC Program authorized local agencies;

overall estimated costs of operating the new local agency in comparison to the estimated revenue available to cover local agency costs;

the staffing pattern of the local agency to support WIC Program services proposed by the applying local agency;

planned hours of operation to include extended clinic hours which are defined as weekends and outside of traditional hours of 8:00 a.m. to 5:00 p.m., Monday through Friday;

the availability of other medical services through the applicant agency or by referral; and

specific application criteria in the request for proposal.

The state agency shall advise respondent agencies of the status of their applications to provide WIC Program services in accordance with the schedule of events in the public notice and the RFP. At a minimum, the schedule of events shall provide for written notification of approval or disapproval to the applicant agencies within 30 days of the closing date for acceptance of responses to the RFP.

In the event of an emergency or unexpected interruption of WIC Program services, the agency WIC Director may waive any or all parts of the application process if necessary to ensure uninterrupted delivery of WIC services in a geographic area or areas.

When a local agency submits an incomplete application for participation either unsolicited or at the request of the state agency as a result of an emergency situation, the state agency shall notify the applicant within 15 days of the receipt of the incomplete application of the additional information needed. The state agency shall notify the applicant agency in writing within 30 days of receipt of a complete application of the approval or disapproval of the application.

§31.32.Selection of Vendors for WIC Initial Authorization for Participation.

A representative from the state agency or the nearest local agency shall visit a vendor applying for authorization to redeem WIC food instruments for evaluation.

The state or local agency representative shall complete a vendor evaluation form during the visit to the vendor indicating the type of WIC-authorized foods in stock and their shelf prices.

The state or local agency representative shall recommend approval or disapproval of the vendor's application based on the observations during the store visit.

The owner or manager or a store representative shall have the opportunity to review the information on the vendor evaluation form and shall sign the form to acknowledge accuracy of shelf prices listed at the time of the evaluation. The evaluator shall provide a copy of the form, including the date, local agency number, and the name of the evaluator, to the vendor at the time of the in-store evaluation.

The state agency shall base its decision to authorize a vendor on the following criteria:

The vendor's shelf prices are competitive for the local agency area.

The vendor has sufficient quantities of at least one type of authorized milk, evaporated milk, cheese, cereal, contract infant formula, contract infant cereal, eggs, peanut butter, and dried beans.

At a minimum, the amounts of each food type which constitute sufficient qualities are:

a total of at least 180 ounces of adult cereal, including at least 36 ounces each of oat, corn, wheat, rice, and multi-grain cereals;

at least six dozen Grade A or AA large, medium, or small size eggs;

a total of at least 18 containers of juice, including at least two varieties of juice in 46-ounce fluid cans and/or 12-ounce frozen cans;

a total of at least six pounds of cheese;

a total of at least nine gallons of milk, some of which must be available in one-half gallon containers;

at least three one-pound bags of dry beans;

at least three 18-ounce jars of peanut butter;

at least eight 12-ounce cans of evaporated milk;

at least 31 cans of milk or soy concentrate infant formula (contract brand) and either eight cans of milk-based powder formula or nine cans of soy powder formula (contract brand); and

at least two 8-ounce boxes or one 16-ounce box of infant cereal.

A pharmacy may provide only the designated contract milk and soy formulas and special formulas.

A vendor may elect not to provide infant formula.

The vendor provides milk in gallon and half-gallon containers and juice in 46-ounce or 12-ounce containers.

The vendor's shelf prices do not exceed the maximum prices on WIC food instruments.

The recommendation by the state or local agency representative who conducted the on-site evaluation.

The vendor has a retail food operations permit or food manufacturer's permit from the applicable city, county, district, or state health authority.

The vendor's store is clean, with fresh merchandise (no expired food items).

The vendor has no apparent conflict of interest with the local agency in the vendor's service area.

The vendor has posted prices for food items.

If applicable, the vendor's history of WIC Program noncompliance.

If the state agency disapproves the application by a vendor for authorization, the reasons for the disapproval shall be provided to the vendor in writing.

Vendors who apply for authorization who have been evaluated twice within a six- month period and denied approval both times shall not be evaluated again until at least six months from the last evaluation.

In the event a vendor purchases or acquires a store location or business which was in the process of being disqualified or which is disqualified from the WIC Program at the time of acquisition, the vendor's application for that store location or business shall not be considered until the disqualification period has been served or lifted or one year has elapsed, whichever is the lesser.

If the state agency has allowed the vendor agreement for a previous owner of a store location to expire for noncompliance, a new owner's application for that store or location or business shall not be considered until at least six months from the expiration date of the previous owner's last vendor agreement.

The state agency may waive the requirement for an on-site evaluation when a grocery chain comprising 20 or more outlets authorized to participate in the WIC Program purchases or merges with another chain with 20 or more authorized outlets if the merger or purchase does not materially change the stores' staff or pricing structure.

Upon request, the state agency may provide an applicant vendor with tentative authorization to redeem WIC food instruments starting the day the store opens.

To obtain tentative authorization, the vendor shall comply with all of the following criteria:

The owner of the applicant store owns one or more stores that have been participating in the WIC Program under the current ownership for at least the six-month period prior to application for authorization.

For the six-month period prior to application for authorization, none of the participating stores has exceeded 108% of the competitive pricing criteria for both the woman/child and infant food packages for their respective local agency vendor bands.

None of the participating stores has been disqualified from program participation for two or more months within the 12-month period prior to application for authorization.

The applicant store notifies the state agency at least two months prior to the official opening date.

The applicant store's manager or assistant manager acknowledges receipt and understanding of the WIC Program vendor manuals provided with the agreement, the allowable foods list, and vendor rules and policies.

The applicant store's manager or assistant manager has scored at least 70% on a written test provided by the state agency and returned to the state agency no later than five days prior to the applicant store's opening date.

If, after evaluation, a store which has received tentative authorization from the state agency does not meet all authorization criteria, the store shall be notified of its tentative agreement expiration date and instructed to discontinue redeeming the WIC Program food instruments. The state agency shall honor properly redeemed food instruments from the opening date until the tentative agreement expiration.

On a temporary basis, the state agency may consider and approve applications from new vendors for the following reasons:

the vendor has been authorized to accept Food Stamps;

the disqualification of an existing authorized vendor in a local agency service area would create inadequate access for WIC Program participants;

a currently-authorized vendor outlet(s) changes ownership; or

authorization of a new vendor would result in a significant cost advantage to the WIC Program.

The state agency may deny an application to participate as a vendor if an owner, partner, principal stockholder, officer, director, manager, or operator of the applicant was an owner, partner, principal stockholder, officer, director, manager, or operator of another vendor which has been disqualified or which has violated WIC Program procedures, policies, rules or regulations.

The state agency may hold an authorized vendor individually responsible for previous violations by an owner, partner, manager, or principal stockholder of the vendor when considering renewal of the vendor's agreement or future applications for vendor agreements.

§31.33.Selection of Vendors for Reauthorization for Participation.

Vendors with a current vendor agreement shall be evaluated for issuance of a subsequent vendor agreement under WIC Program procedures, policies, rules, and regulations and shall be reauthorized unless notified in writing by the state agency at least 15 days before expiration of the vendor agreement.

Prior to reauthorization, the state agency shall assess and review the qualifications of all vendors to assure that each continues to meet the WIC Program's goals. Criteria utilized in assessment and determination of qualifications for reauthorization include, but are not limited to.

Competitive prices for the local agency area. A vendor's prices shall be considered competitive if the combined prices for the items included in the standard woman/child and/or infant food package do not exceed 108% of the local agency food package averages for the vendor's band.

Volume of WIC sales. The vendor's volume of WIC sales exceeds $300 a month. If monthly sales fall below $300 a month for three consecutive months prior to the time of the vendor agreement reauthorization valuation, the vendor agreement many not be renewed.

Previous compliance with WIC Program procedures, policies, rules, and regulations. The vendor has satisfactorily complied with food instrument redemption and submission procedures, policies, rules, and regulations.

Continuing to meet selection criteria . The vendor continues to meet the selection criteria as stated in this section.

Previous noncompliance with WIC Program procedures, policies, rules, and regulations shall be considered by the state agency in determining if the vendor is eligible for a subsequent contract.

Examples of noncompliance violations include, but are not limited to:

Two or more state agency written notifications of problems with competitive pricing criteria within the term of a 12-month vendor agreement;

one or more state agency written notifications of problems with competitive pricing criteria within the term of a six month vendor agreement;

previous voluntary withdrawal as an authorized vendor after having received a warning or disqualification letter from the state agency. Such a warning or disqualification shall be entered into the vendor's record.

The state agency shall also consider a history of noncompliance when evaluating a vendor's application for authorization at new or additional sites.

The state agency shall allow a vendor's agreement to expire and not be renewed if the vendor has a history of noncompliance with provisions in the vendor agreement or the WIC Program procedures, policies, rules, and/or regulations, including compliance with the competitive pricing criteria unless, at the request of an otherwise compliant vendor, the state agency negotiates a civil money penalty in lieu of nonrenewal.

Expiration of the vendor agreement is not subject to appeal.

In the event the vendor's agreement has been allowed to expire due to previous noncompliance, a vendor's request for reauthorization shall not be considered until at least six months from the expiration date of the vendor's last agreement.

Any vendor for which the state agency has identified violations that have resulted in, or would have resulted in, a one-month disqualification from the WIC Program but has not had any state agency written notification of problems with competitive pricing within the current agreement term, shall have a probationary vendor agreement that expires March 31 or September 30 of the current federal fiscal year, whichever results in the shorter contract period.

If the state agency agrees to negotiate a civil money penalty in lieu of nonrenewal of the vendor agreement for noncompetitive pricing for an otherwise compliant vendor, the following shall apply:

The state agency shall not negotiate a civil money penalty in lieu of nonrenewal for competitive pricing for the second of two consecutive agreement periods.

The civil money penalty for noncompetitive pricing shall be calculated as follows:

The vendor's average monthly redemptions for the most recent six- month period prior to the date of the nonrenewal notice shall be determined.

The resulting average monthly redemptions shall be multiplied by 50% (.50).

The final calculated civil money penalty shall not exceed $10,000.

All vendors must have a retail food operation permit or food manufacturers' permit from the applicable city, county, district, or state health authority.

§31.34.Calculation and Use of Vendor Competitive Pricing Data.

The state agency shall use the following calculation to determine whether an applicant vendor's prices are competitive with those of similar vendors in the local agency service area.

The state agency data system calculates by vendor outlet the average unit costs to the state agency for each food type based on the food instruments redeemed by that vendor outlet.

Authorized vendor outlets within a local agency service area are grouped into volume vendor bands. All outlets comprising a vendor account in the local agency's service area are grouped together in the same band.

Utilizing food-type averages for each vendor account within a vendor band, the state agency determines the local agency standard food package costs for an infant and/or a woman/child participant for each vendor band.

A vendor outlet's average standard food package costs are determined based on the store evaluation for an applicant vendor or actual WIC redemption data for authorized vendors.

The state agency compares the vendor outlet's standard food package costs to the local agency's average standard food package costs for that vendor band. An outlet's standard food package costs are considered competitive if they are less than or equal to 108% of the local agency's average standard food package costs for that vendor band.

The state agency shall provide a vendor with written notification of noncompliance with competitive pricing. Any vendor that receives one written notification of noncompliance with competitive pricing during the last six months of the federal fiscal year shall receive a probationary six-month agreement at the beginning of the next fiscal year if all noncompliance issues have been corrected.

§31.35.Vendor Agreement with the State Agency.

Once a vendor has been approved to participate in the WIC Program, a written agreement shall be executed and signed by authorized officials of the state agency and the vendor.

The agreement shall be prepared by the state agency and mailed to the vendor for endorsement.

Upon receipt by the vendor, the vendor shall enter the store's business name, telephone number, federal income tax number, and State of Texas Comptroller number; sign the agreement; and return it to the state agency.

Each vendor agreement shall include at least one vendor profile detailing, at a minimum, the name, location, type of facility, gross sales, gross food sales, and gross non- food sales for each outlet covered by the agreement.

The state agency shall assign a WIC account number to the vendor and enter it on the agreement. Outlet identifiers shall also be assigned where applicable.

A state agency official shall sign the agreement. The state agency shall forward one copy to the vendor and shall retain the original document.

Upon receipt of the copy signed by the state agency official and bearing a WIC account number, the vendor may commence accepting WIC Program food instruments.

Any vendor that has not previously been authorized by the WIC Program shall receive a probationary vendor agreement that expires March 31 or September 30 of the current federal fiscal year, whichever results in the shorter contract period.

A change of ownership of an authorized outlet or account terminates the agreement between the state agency and the vendor. A change of ownership occurs when all, or substantially all, of the property or assets of a vendor are acquired by a purchaser in an arms-length transaction.

In the event a store location/business under previous ownership was disqualified or is in the process of being disqualified at the time of acquisition, the new owner's application for that store location/business shall not be considered until the disqualification period has been served or lifted or one year has elapsed, whichever period of time is shorter.

If the state agency has notified the previous owner that the vendor's agreement for a store location/business shall be allowed to expire, the new vendor's application for that store location/outlet shall not be considered until at least six months from the expiration date of the previous vendor's last agreement.

If a store/location under previous ownership is not disqualified or is not in the process of being disqualified at the time of acquisition, and/or the previous owner has not been notified that the vendor agreement for that store location/business will be allowed to expire, and the acquiring party is in compliance with the rules, regulations, and vendor qualification criteria of the WIC Program, the acquiring party may, upon request, be authorized as a WIC Program vendor.

The applicant vendor must submit a written affidavit stating that a change of ownership has been effected and duly executed by the seller and purchaser or their duly authorized officers or other agents.

The affidavit shall include, at a minimum, the following information and any other information the state agency deems necessary: name and business address of the seller; name and business address of the purchaser; WIC vendor account number and outlet number, if applicable; name(s) and street address(es) of the outlet location(s); effective date of ownership change; and State of Texas Comptroller tax number of new owner.

WIC food instruments redeemed at an applicant store shall not be paid until the store has been duly authorized, including completion of an on-site evaluation, approval by the local agency, execution of the vendor agreement and vendor profile, and assignment of an account/outlet number by the state agency.

A vendor's unilateral termination of a vendor agreement after receipt of notification by the state agency of a violation shall not deprive the state agency of jurisdiction to impose sanctions for WIC Program violations.

The vendor agreement does not constitute a license, since a vendor does not require the state agency's approval to engage in the retail grocery business in Texas and the vendor would not effectively be deprived of this right in the absence of WIC Program authorization.

The vendor agreement conveys no property interest since federal law does not give rise to a legitimate claim of entitlement for vendors.

The terms of authorization are established in the vendor agreement between the state agency and the vendor, and the contractual relationship ends with the expiration of the vendor agreement.

The state agency as well as officers, agents, and employees of the state agency are not responsible for losses incurred by a vendor as a result of the expiration of the vendor agreement.

§31.36.Right of Administrative Appeal by a Local Agency or Vendor.

A local agency or vendor has the right to appeal when an application for participation is denied and/or any other adverse action affecting participation is taken, except that expiration of the vendor agreement or local agency contract, disqualification of a vendor as a result of disqualification from the Food Stamp Program, and a determination by the state agency concerning whether disqualification of a vendor would result in inadequate participant access are not subject to review.

The state agency shall provide a local agency or vendor with written notification of an adverse action, the cause(s) for the action, the effective date of the action, and the right to appeal the adverse action.

The state agency shall provide a local agency notice of disqualification at least 60 days prior to the effective date.

The state agency shall provide a vendor notice of an adverse action at least 15 days prior to the effective date of the action except when the adverse action results from conviction for trafficking in food instruments or selling firearms, ammunition, explosives, or controlled substances in exchange for food instruments, which is effective on receipt of the notice.

A local agency or vendor shall provide the state agency with a written request for a hearing within 15 days of the receipt of the notice of denial or adverse action. The written request shall, at a minimum, describe the action being appealed.

When a participating local agency appeals an adverse action, the adverse action shall be postponed until a hearing decision is reached.

When a vendor appeals an adverse action, the adverse action may be postponed until a hearing decision is reached at the discretion of the state agency.

Appealing an adverse action does not relieve a local agency or a vendor permitted to continue participating in the program while an appeal is pending from the obligation of continued compliance with the terms of the written agreement or contract with the state agency.

The state agency shall provide the local agency or vendor the following:

at least ten days advance notice of the time and place for the hearing;

the opportunity to reschedule the hearing one time;

the opportunity to review all written case records prior to the hearing;

the opportunity to be represented by counsel if desired;

the opportunity to call witnesses;

the opportunity to confront and cross-examine adverse witnesses;

an impartial decision-maker who will prepare a written decision based solely on the evidence presented at the hearing and the statutory and regulatory provisions governing the program; and

written notification of the final decision within 60 days from the date of receipt of the request for a hearing.

The state agency is not responsible for losses incurred by the local agency or vendor as a result of disqualification and/or denial of an application to participate.

If the hearing results in a final decision adverse to the local agency or vendor, the appellant may seek judicial review of the decision to the extent authorized by state law. The state agency or its legal counsel shall not provide legal advice to adverse parties concerning judicial review of final decisions in administrative hearings. Appellants must seek advice from their own attorneys.

§31.37.Selection of WIC Program Allowable Foods.

Criteria for approving products for inclusion in the WIC Program food package are based on federal regulations, packaging, cost, cultural acceptability, and nutritive value.

A product shall meet the federal regulations governing the WIC Program food package in order to be considered for approval through the WIC Program.

The state agency may restrict the number of brands and types of any products in order to contain the cost of the food package and minimize the confusion for WIC participants. The state agency is not obligated to authorize every available food that meets the federal requirements.

The state agency shall review the WIC Program list of allowable foods annually to determine the need for adding or deleting food products.

If the state agency determines that the list of allowable foods should be changed, the state agency shall notify both juice and cereal manufacturers of that intent through a request for information (RFI).

Juice and cereal manufacturers may contact the WIC Program at any time during the year to request that their names and addresses be added to the mailing list for an RFI.

The criteria for each food type are as follows:

Any brand of unflavored, fresh, whole, reduced fat (2.0%), low-fat (0.5% or 1.0%) or fat-free (nonfat or skim) cow's milk including cultured buttermilk marketed in Texas containing or fortified with vitamins A and D to meet the federal standards.

Only gallon and half-gallon plastic or paper cartons are allowed.

"High calcium" fluid milk is not allowed.

Goat's milk is not allowed.

Fluid milk with added enzymes, such as lactose-free milk, may qualify in quart, half-gallon, and gallon containers. Brands shall be approved as needed.

Any brand of whole or fat-free (nonfat) evaporated cow's milk marketed in Texas containing or fortified with vitamins A and D to meet the federal standards.

Only 12-ounce cans are allowed.

Evaporated filled milk is not allowed.

Sweetened condensed milk is not allowed.

Any brand of nonfat, dry, powdered milk marketed in Texas containing or fortified with vitamins A and D to meet the federal standards. Nonfat, dry, powdered milk may be issued in 9.6-ounce, 25.6-ounce, and 64-ounce boxes.

Any unflavored domestic brand of pasteurized processed American, Monterey Jack, Colby, Colby-Jack, Natural Cheddar, Longhorn, or Mozzarella cheese in block or sliced form.

Package sizes smaller than 10 ounces are not allowed.

Shredded or individually wrapped slices of cheese are not allowed.

Cheese foods or cheese spreads are not allowed.

The state agency shall set a maximum price for cheese which cannot be exceeded when food instruments are redeemed.

Cereal brands shall contain a minimum of 28 milligrams of iron per 100 grams of dry cereal, and not more than 21.2 grams of sucrose and other sugars per 100 grams of dry cereal (6 grams per ounce).

Package sizes less than 10 ounces are not acceptable. The state agency may further limit the package size(s) authorized for a brand.

Culturally acceptable cereals or cereals targeting specific ethnic groups shall be considered.

If cereals from one manufacturer have similar names and package designs and some do not qualify, the state agency reserves the right to not approve those types that would otherwise qualify to reduce the potential for confusion by vendors and participants.

The state agency reserves the right to determine the number and brands of cereals, which shall include at least one hot cereal and at least one corn, wheat, oat, rice, and multi-grain cereal.

Except as provided in this subparagraph, authorized brands of cereals shall be the least expensive per ounce within the respective grain groups.

The state agency may authorize a more expensive brand with higher fortification and/or lower sugar content in lieu of a less expensive brand within a particular grain group.

The state agency may consider consumer acceptability as well as the suitability for children among its selection criteria.

The product shall be available for retail purchase on or before the effective date of the approved food list or it will not be considered by the state agency for authorization.

The product form and marketing approach shall be consistent with the promotion of good nutrition and education.

All single-strength fluid fruit or vegetable juices shall contain a minimum of 30 milligrams of vitamin C per 100 milliliters and all frozen concentrated fruit or vegetable juices shall contain a minimum of 30 milligrams of vitamin C per 100 milliliters of reconstituted juice.

Juices shall be 100% juice and shall contain no added sugar, or other natural or artificial sweeteners.

Only orange, grapefruit, grape, pineapple, apple, orange/grapefruit, orange/pineapple, pineapple/grapefruit, and vegetable juices may be authorized.

Fluid juice shall be packaged in 46-ounce containers.

Frozen juice shall be packaged in 11.5-ounce or 12-ounce containers.

Fluid juice for the special homeless food package shall be packaged in a 6-ounce can.

Fluid juice shall not be packaged in glass, plastic, or cardboard containers.

Canned and frozen varieties of juice with the same brand name shall be evaluated separately.

The state agency reserves the right to limit the authorized packaging of specific types of juice due to pricing or other considerations.

If juices from one manufacturer have similar names and package designs and some do not qualify, the state agency reserves the right to not approve those types that would otherwise qualify to reduce the confusion by vendors and participants.

The product shall be available for retail purchase on or before the effective date of the approved food list or it will not be considered by the state agency for authorization.

The product form and marketing approach shall be consistent with the promotion of good nutrition and education.

Only fresh grade A or grade AA large, medium, or small chicken eggs are allowed.

Fertile, brown, or free-range eggs are not allowed.

Eggs shall be packaged only in cartons of a dozen.

Extra large or jumbo eggs are not allowed.

Beans/Peas/Lentils.

All brands of dried beans, peas, or lentils are approved in one-pound packages or bulk.

Mixed or seasoned beans, peas, or lentils are not allowed.

Any brand of peanut butter in an 18-ounce container qualifies if it contains no other ingredients such as jelly, marshmallows, or honey.

Low fat or lite peanut butter is not allowed.

Any domestic brand of chunked light tuna packed in water in a six- ounce can is authorized. Tuna packaged in 3.25-ounce cans shall be authorized only for the homeless food package.

Albacore and solid white tuna is not allowed.

Tuna packaged with other items such as crackers or relish is not allowed.

Tuna packed in oil is not allowed.

All one-pound or two-pound cello bags of fresh, large carrots without tops are allowed.

All 14-ounce to 16-ounce cans of sliced carrots are allowed.

Baby carrots and frozen carrots are not allowed.

Infant formula.

Infant formulas authorized for the WIC Program shall be registered with the United States Food and Drug Administration as complying with the legal definition of infant formula.

Infant formulas shall comply with calorie and iron content prescribed by federal WIC regulations, except as provided by state agency policy.

Infant formulas shall be approved by USDA for use in the WIC Program.

The product form and marketing approach shall be consistent with the promotion of good nutrition and education.

The state agency reserves the right to solicit rebates for infant formulas from manufacturers through a competitive bid process. The formulas selected shall be designated as the primary milk-base and soy-base brands authorized for issuance by the WIC Program.

Infant cereals shall contain a minimum of 45 milligrams of iron per 100 grams of dry cereal.

Infant cereal with added fruit, sugar, or other ingredients shall not be authorized.

Infant cereal shall be dehydrated flakes in eight-ounce or 16-ounce boxes.

The state agency reserves the right to solicit rebates for infant cereals from manufacturers through a competitive bid process.

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 19, 2001.

General Counsel

Texas Department of Health

Earliest possible date of adoption: March 4, 2001

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

Chapter 129. OPTICIANS' REGISTRY

25 TAC §§129.1 - 129.4, 129.8, 129.9, 129.11 - 129.13

The Texas Department of Health (department) proposes amendments to §§129.1- 129.4, 129.8-129.9, and 129.11-129.13 concerning the voluntary registration and regulation of dispensing opticians. Specifically, the amendments cover purpose and construction; definitions; opticians' registry advisory committee; fees; renewal of registration; requirements for continuing education; violations, complaints, investigation of complaints, and disciplinary actions; and professional and ethical standards. Amendments to §§129.1-129.2 and 129.12-129.13 are necessary to reflect changes in citations created by House Bill 3155, 76th Legislature, 1999, which compiled relevant laws from Vernon's Texas Civil Statutes into the Texas Occupations Code. Amendments to §§129.4 and 129.8 are necessary to implement provisions of House Bill 2085, 76th Legislature, 1999, which established late renewal fees for registrants who renew after the expiration date, but within 90 days of the expiration date; and those who renew more than 90 days late but within one year of the expiration date.

The department published a Notice of Intention to Review the sections as required by the Government Code, §2001.039 in the Texas Register on May 5, 2000 (25 TexReg 4196). No comments were received in response to the notice.

Additional amendments are made to comply with the Government Code, §2001.039, which requires state agencies to review and consider for readoption every four years its rules adopted under the Government Code, Chapter 2001. Each section was reviewed and the department has determined that the reasons for adopting the sections continue to exist. The sections were edited to improve draftsmanship and make the rules more accessible, understandable, and usable. As a result of this review, the following changes are proposed: the definition of the Opticians' Registry Advisory Committee in §129.2 is amended to reflect the current committee membership; §129.3(d)(1) is amended to clarify that the committee shall advise the board concerning rules relating to registered opticians; §129.8(b)(5) is amended to more fully described the citation to the Education Code, §57.491; §129.9(b) is amended to delete unnecessary language; §129.9(b)(3) is amended to clarify that a total of 10 classroom hours are needed to maintain dual registration; and §129.11(e)(5) is amended to clarify that formal hearings are governed by the Government Code, Chapter 2001 (Administrative Procedure Act).

L. Jann Melton-Kissel, Director of Budget and Legislative Policy Analysis, Bureau of Licensing and Compliance, has determined that there will not be any significant fiscal impact on state government for each year of the first five years the amendments as proposed are in effect. There will be no fiscal implication for local governments.

Ms. Melton-Kissel has also 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 provide a means by which the public can identify providers of opthalmic dispensing services and products that meet minimum standards of competence. The amendments, as proposed, are not expected to have a measurable impact on small businesses or micro-businesses because the Opticians' Registry Act provides only for the voluntary registration of natural persons. The anticipated cost to persons will be that persons who fail to renew the registration prior to the expiration date will incur additional late fees. Registrants renewing after the expiration date but within 90 days will pay an additional $15. Registrants renewing more than 90 days late but within one year of the expiration date will pay an additional $25. There is no anticipated impact on local employment.

Comments on the proposal may be submitted to Stephen Mills, Program Administrator, Opticians' Registry Program, Professional Licensing and Certification Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3183, (512) 834-6661. Comments will be accepted for 30 days following publication of this proposal in the Texas Register .

The amendments are proposed under Texas Occupations Code, Chapter 352, which provides the Board of Health (board) with the authority to adopt rules; and Health and Safety Code, §12.001, which provides the board with authority to adopt rules to implement every duty imposed by law on the board, the department and the commissioner of health.

The amendments affect Texas Occupations Code, Chapter 352, Health and Safety Code, Chapter 12; and Government Code §2001.039.

§129.1.Purpose and Construction.

Purpose. This chapter implements the provisions of the Opticians' Registry Act, Texas Occupations Code, Chapter 352 [ ~~Texas Civil Statutes, Article 4551-1~~ ], concerning the voluntary registration and regulation of dispensing opticians by providing a means by which the public can identify providers of ophthalmic dispensing services and products that meet minimum standards of competence.

§129.2.Definitions.

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

Act - The Opticians' Registry Act (Act), Texas Occupations Code, Chapter 352 [ ~~Texas Civil Statutes, Article 4551-1~~ ].

Committee - The eleven [ ~~nine~~ ] member Opticians' Registry Advisory Committee.

§129.3.Opticians' Registry Advisory Committee.

The committee shall advise the board concerning rules relating to opticians registered under the Act .

§129.4.Fees.

Schedule of fees. The fees are as follows:

late registration fee - a fee that is one and one-half [ ~~one half~~ ] times the registration [ ~~applicable~~ ] renewal fee if renewed within 90 days of expiration or a fee that is two times the registration renewal fee if renewed more than 90 days but less than one year after expiration ;

§129.8.Renewal of Registration.

The department shall not renew a registration if renewal is prohibited by the Education Code, §57.491 (relating to Loan Default Ground for Nonrenewal of Professional or Occupational License) .

A person whose registration has expired for not more than 90 [ ~~180~~ ] days may renew the registration by submitting to the department the registration renewal form, the completed continuing education report form, and the late registration fee. A person whose registration has expired more than 90 days but less than one year may renew the registration by submitting to the department the registration renewal form, the completed continuing education report form, and a late registration fee [ The renewal will be accepted and is effective if it is mailed to the department not more than 180 days after the expiration date of registration and is complete. The postmark date shall be considered as the date of mailing ].

A person whose registration has been expired for more than one year [ ~~180 days~~ ] may not renew. The person may obtain a new registration by complying with the then current requirements and procedures for obtaining a registration.

§129.9.Requirements for Continuing Education.

Number of hours required. Proof of having earned five classroom hours of continuing education credit in each area for which the registrant is renewing shall be required at the time of renewal for each registration [ ~~after September 1, 1993~~ ]. A classroom hour is 50 minutes.

If applying for dual registration renewal the applicant must have a total of 10 classroom hours of continuing education . Five [ ~~five~~ ] classroom hours must be offered or approved by the American Board of Opticianry and five classroom hours must be offered or approved by the National Contact Lens Examiners.

§129.11.Violations, Complaints, Investigation of Complaints, and Disciplinary Actions.

Disciplinary actions.

The formal hearing shall be conducted in accordance with the Administrative Procedure Act, Government Code, Chapter 2001 [ ~~department's formal hearing procedures in Chapter 1 of this title (relating to the Texas Board of Health)~~ ] and §129.12 of this title (relating to Registration of Applicants With Criminal Backgrounds), if applicable.

Administrative penalties shall be assessed in accordance with the procedures set forth in the Act, Subchapter G (relating to Administrative Penalty) [ ~~§10A~~ ].

§129.12.Registration of Applicants With Criminal Backgrounds.

The following felonies and misdemeanors directly relate because these criminal offenses indicate an inability or an unwillingness for the person to be able to perform or to be fit for registration:

other misdemeanors and felonies if disciplinary action by the department will promote the intent of the Act, this chapter, and the Texas Occupations Code, Chapter 53 [ ~~Texas Civil Statutes, Article 6252-13c~~ ].

§129.13.Professional and Ethical Standards.

Unless exempt, a registrant shall comply with the Texas Contact Lens Prescription Act, Texas Occupations Code, Chapter 353 [ ~~Civil Statutes, Article 4552-A~~ ].

A registrant may not sell, deliver, or dispense contact lenses to a patient or other consumer in this state unless the registrant receives a prescription that conforms to the requirements of the Texas Contact Lens Prescription Act, Texas Occupations Code, Chapter 353 [ ~~Civil Statutes, Article 4552-A~~ ]. The registrant must fill the prescription accurately without modification.

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 19, 2001.

General Counsel

Texas Department of Health

Earliest possible date of adoption: March 4, 2001

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

Chapter 130. CODE ENFORCEMENT REGISTRY

The Texas Department of Health (department) proposes the repeal of §130.19, amendment to §130.2 and new §130.3 concerning the Code Enforcement Officers' Advisory Committee. Specifically, the amendments cover definitions and the establishment, structure, and composition of a code enforcement officers advisory committee. The amendments are necessary to separate the Sanitarian/Code Enforcement Officers' Advisory Committee into the Registered Sanitarian Advisory Committee in Chapter 265 of this title and the Code Enforcement Officers' Advisory Committee in this chapter.

L. Jann Melton-Kissel, Director of Budget and Legislative Policy Analysis, Bureau of Licensing and Compliance, has determined that there will not be any fiscal impact on state government for each year of the first five years the rules as proposed are in effect. There will not be any fiscal implication for local governments.

Ms. Melton-Kissel has also 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 provide broader representation and increased stakeholder input into rules regarding the registration of code enforcement officers. The sections establish an advisory committee to the Board of Health and do not impact the regulated community. Therefore, there will be no effect on small businesses and no effect on microbusinesses. 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 Yvonne Feinleib, Program Administrator, Code Enforcement Officers' Registry, Professional Licensing and Certification Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3183, (512) 834-4517. Comments will be accepted for 30 days following publication of this proposal in the Texas Register .

25 TAC §130.2, §130.3

The amendment and new section are proposed under the Texas Health and Safety Code, §11.016, which allows the Board of Health (board) to establish advisory committees; and Health and Safety Code, §12.001, which provides the board with authority to adopt rules to implement every duty imposed by law on the board, the department and the commissioner of health.

The amendment and new section affect Texas Civil Statutes, Article 4447bb; Health and Safety Code, Chapter 11 and 12; and Government Code, Chapter 2110.

§130.2.Definitions.

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

~~Committee--The five-member Code Enforcement Advisory Committee.]~~

[ ~~(8)~~ ] Department--The Texas Department of Health.

[ ~~(9)~~ ] Full-time experience--Employment, self-employment, or independent contracting in the field of code enforcement where the regularly assigned duties included code enforcement and the experience was for not less than 32 hours per week.

[ ~~(10)~~ ] Registrant--A person registered under the Act.

[ 11 ] Registration--The procedure by which the department accepts, processes, and approves applications for registration of a person, and as a part thereof, includes the furnishing and replacement or duplication of certificates and identification cards.

§130.3.Code Enforcement Officers' Advisory Committee.

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

The name of the advisory committee shall be the Code Enforcement Officers' Advisory Committee (committee).

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

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

Purpose. The purpose of the committee is to provide advice to the board in the area of rules regarding code enforcement officers.

The committee shall advise the board concerning rules relating to registered code enforcement officers.

The committee shall advise the department concerning the registration of code enforcement officers.

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

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

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

three registered code enforcement officers;

one structural engineer;

two consumers, one of which must be a certified building official; and

one person involved in the education and training of code enforcement officers.

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

Members shall be appointed for staggered terms so that the terms of a substantial equivalent number of members will expire on December 31st of each odd-numbered year.

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

Officers. The chairman of the board shall appoint a presiding officer and an assistant presiding officer to begin serving on September 1 of each odd-numbered year.

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

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.

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 appointed to complete the unexpired portion of the term of the office of presiding officer.

If the office of assistant presiding officer becomes vacant, it may be filled temporarily by vote of the committee until a successor is appointed by the chairman of the board.

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

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

Meetings. The committee shall meet at least once each year to conduct committee business.

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.

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

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

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

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

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

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 committee business. The presiding officer may establish procedures for public comment, including a time limit on each comment.

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

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

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.

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.

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

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

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

Each member shall have one vote.

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

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.

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

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.

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

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

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.

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

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.

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 when a statement or action is in pursuit of specific instructions from the board, department, or committee.

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

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

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

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

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

Reimbursement for expenses. In accordance with the requirements set forth in the Government Code, Chapter 2110, a committee member may receive reimbursement for the member's expenses incurred for each day the member engages in official committee business if authorized by the General Appropriations Act or budget execution process.

No compensatory per diem shall be paid to committee members unless required by law.

A committee member who is an employee of a state agency, other than the department, may not receive reimbursement for expenses from the department.

A nonmember of the committee who is appointed to serve on a subcommittee may not receive reimbursement for expenses from the department.

Each member who is to be reimbursed for expenses shall submit to staff the member's receipts for expenses and any required official forms no later than 14 days after each committee meeting.

Requests for reimbursement of expenses shall be made on official state travel vouchers prepared by department staff.

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 18, 2001.

General Counsel

Texas Department of Health

Earliest possible date of adoption: March 4, 2001

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

25 TAC §130.19

(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 Texas Health and Safety Code, §11.016, which allows the Board of Health (board) to establish advisory committees; and Health and Safety Code, §12.001, which provides the board with authority to adopt rules to implement every duty imposed by law on the board, the department and the commissioner of health.

The repeal affects Texas Civil Statutes, Article 4447bb; Health and Safety Code, Chapter 11 and 12; and Government Code, Chapter 2110.

§130.19.Sanitarian/Code Enforcement Officers' Advisory 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 January 18, 2001.

General Counsel

Texas Department of Health

Earliest possible date of adoption: March 4, 2001

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

Chapter 229. FOOD AND DRUG

Subchapter T. LICENSURE OF TANNING FACILITIES

25 TAC §§229.342, 229.343, 229.345 - 229.349, 229.351 - 229.354, 229.356, 229.357

The Texas Department of Health (department) proposes amendments to §§229.342 - 229.343, 229.345 - 229.349, 229.351 - 229.354, and 229.356 - 229.357, concerning the licensure of tanning facilities. Specifically, the sections cover applicable laws and regulations; definitions; licensing of tanning facilities; licensing fees; revocation, cancellation, suspension, and probation of a license; report of changes; advertising; tanning devices; protective eyewear; operators; records; sanitation; and enforcement and penalties.

Amended §229.342 will allow the federal regulations referenced in the section to be interpreted based on the current effective date of the regulation. Amended §229.343 will add new definitions for "change of ownership" and "date of issuance" in order to provide clarification of licensure requirements. Amended §229.345 will update and clarify licensing procedures in order to improve the timeliness and efficiency of the licensure process. Amended §229.346 will clarify requirements for delinquency fees associated with amending a license and provide for prorating of licensure fees for the purpose of consolidating multiple license anniversary dates. Amended §229.347 will clarify conditions under which denials, suspensions, and revocations of a license will be handled by the department. Amended §229.348 will update and clarify requirements for reporting to the department changes affecting license applications. Amended §229.349 will conform the citation reference to changes made in §229.345. Amended §229.351 will update requirements for tanning devices in order to increase consistency with federal standards for these devices. Amended §229.352 will clarify the requirement for protective eyewear availability. Amended §229.353 will allow an owner to designate an individual with responsibility for signing employee training records and will reorganize existing requirements relating to facility operating procedures. Amended §229.354 will clarify requirements for disclosing warnings to consumers and for recording the date of birth in individual consumer records. Amended §229.356 will update and clarify requirements for sanitizing protective eyewear, documenting sanitizing solution strength, and determining acceptable flooring materials. Finally, amended §229.357 will update references to applicable enforcement provisions under Health and Safety Code, Chapter 431.

Government Code §2001.039 requires that each state agency review and consider for readoption each rule adopted by the agency pursuant to the Government Code, Chapter 2001 (Administrative Procedures Act). These sections have been reviewed and the department has determined that the reason for readopting the sections continues to exist; however the rules need revisions as described in this preamble. In addition, the department has reviewed §§229.341, 229.344, 229.350, and 229.355 and proposes to readopt these sections without any changes. However, the department will accept comments from the public on these sections.

The department published a Notice of Intention to Review §§229.341 - 229.357 in the Texas Register (25 TexReg 3062) on April 7, 2000. No comments were received by the department on these sections.

Cynthia T. Culmo, R.Ph., Director, Drugs and Medical Devices Division, has determined that for the first five-year period the sections are in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the sections as proposed because the licensing requirements are not being substantially changed.

Ms. Culmo has also determined that for each year of the first five years the sections as proposed are in effect, the public benefit will be clarification of minimum standards for licensure of tanning facilities. The only potential adverse economic effect on micro-businesses and/or small businesses and persons who may be required to comply with these sections as proposed is related to the assessment of a $100 delinquency fee for certain license holders described in proposed §§229.345(h) and 229.346(c)(2). The delinquency fee referenced in proposed §229.346(c)(2) will be assessed only to those license holders who fail to notify the department within 30 days of an effective date of a change in location, name, or ownership of an existing tanning facility. There will be no adverse economic effect on micro-businesses and/or small businesses and persons who comply in a timely manner with the license amendment requirements as proposed in §229.345(h). There will be no impact on local employment.

Comments on the proposed amendments may be submitted to Thomas E. Brinck, Drugs and Medical Devices Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 719-0237. Comments will be accepted for 30 days from the date of publication of this proposal in the Texas Register .

The amendments are proposed under the Health and Safety Code, §145.011, which provides the department with the authority to adopt necessary regulations pursuant to the enforcement of Chapter 145; 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 affect Health and Safety Code, Chapter 145 and Chapter 12.

§229.342.Applicable Laws and Regulations.

Tanning devices used in tanning facilities are required to comply with the following applicable laws and regulations which are adopted by reference and [ ~~referenced in these sections which~~ ] include, but are not limited to [ ~~, the following~~ ]:

21 Code of Federal Regulations (CFR), Part 801, Labeling [ ~~(1993)~~ ];

21 CFR, Subchapter J, Radiological Health [ ~~(1993)~~ ];

21 CFR, Part 1010, Performance Standards for Electronic Products - General [ ~~(1993)~~ ]; and

21 CFR, §1040.20, Sunlamp Products and Ultraviolet Lamps Intended for Use in Sunlamp Products [ ~~(1993)~~ ].

~~The effective date for all referenced federal regulations refers to the regulations on the date specified and do not include any additions or deletions subsequent to the date specified.]~~

[ ~~(f)~~ ] Nothing in these sections shall relieve any person of responsibility for compliance with other pertinent Texas and federal laws and regulations.

[ ~~(g)~~ ] Copies of these laws and rules are indexed and filed in the office of the Drugs and Medical Devices Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, and are available for inspection during normal working hours.

§229.343.Definitions.

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

Act - The Tanning Facility Regulation Act (Act), Texas Civil Statutes, Article 8910 (House Bill 2352, 71st Legislature, 1989), codified as Health and Safety Code, Chapter 145.

Adulterated - Has the meaning given in the Texas Food, Drug, and Cosmetic Act, Health and Safety Code, §431.111, as interpreted in the rules of the board and judicial decision.

Authorized agent - An employee of the department designated by the commissioner to enforce the Act.

Change of ownership - A sole proprietor who transfers all or part of the facility's ownership to another person or persons; the removal, addition, or substitution of a person or persons as a partner in a facility owned by a partnership; a corporate sale, transfer, reorganization, or merger of the corporation which owns the facility if sale, transfer, reorganization, or merger causes a change in the facility's ownership to another person or persons; or if any other type of association, the removal, addition, or substitution of a person or persons as a principal of such association.

[ ~~(4)~~ ] Commissioner - The commissioner of health.

Date of issuance - When applied to licenses issued in accordance with these sections, the initial date of operation of a tanning facility or in the case of an amended license, the effective date of a change in location, name, or ownership of an existing tanning facility.

[ ~~(5)~~ ] Department - The Texas Department of Health.

[ ~~(6)~~ ] Health authority - A physician designated to administer state and local laws relating to public health.

[ ~~(7)~~ ] Misbranded - Has the meaning given in the Texas Food, Drug, and Cosmetic Act, Health and Safety Code, §431.112, as interpreted in the rules of the board and judicial decision.

[ ~~(8)~~ ] Operate - To own, manage, or control a tanning facility, or to offer tanning services to the public.

[ ~~(9)~~ ] Operator - A tanning facility owner, or an agent of a tanning facility owner, or a person who operates a tanning facility.

[ ~~(10)~~ ] Person - An individual, partnership, corporation, or association.

[ ~~(11)~~ ] Phototherapy device - A piece of equipment that emits ultraviolet radiation and that is used by a health care professional in the treatment of disease.

[ ~~(12)~~ ] Radiation - Ultraviolet radiation.

[ ~~(13)~~ ] Radiation machine - Any device capable of producing radiation.

[ ~~(14)~~ ] Reconditioning - Has the meaning given in the Texas Food, Drug, Device, and Cosmetic Salvage Act, Health and Safety Code, §432.003, as interpreted in the rules of the board in §229.192 of this title (relating to Definitions) and judicial decision.

[ ~~(15)~~ ] Tanning device - A device, as defined in the Texas Food, Drug, and Cosmetic Act, Health and Safety Code, §431.002, that emits electromagnetic radiation with wavelengths in the air between 200 and 400 nanometers and that is used for tanning of human skin, including a sunlamp, tanning booth, or tanning bed. A tanning device is also classified as a device, as defined in the Federal Food, Drug and Cosmetic Act and the applicable Code of Federal Regulations. The term also includes any accompanying equipment, including protective eyewear, timers, and handrails.

[ ~~(16)~~ ] Tanning facility - A business that provides persons access to or use of tanning devices.

§229.345.Licensing of Tanning Facilities.

A license issued under these sections shall be returned to the department if the tanning facility:

ceases business or otherwise ceases operation on a permanent basis;

changes the name of the business under which the tanning facility operates; or

changes ownership.

A license that is amended, including a change in location, name, or ownership of a tanning facility, will require submission of an initial license application and fee as outlined in subsection (j) of this section and §229.346(a) of this title (relating to Licensing Fees).

License application forms may be obtained from the Texas Department of Health, Licensing and Enforcement Division, 1100 W. 49th Street, Austin, Texas, 78756 or from the Bureau of Food and Drug Safety website at http://www.tdh.state.tx.us/bfds/lic/apps.html.

[ ~~(g)~~ ] The initial application required in subsections (c) and (k) [ ~~(h)~~ ] of this section shall be completed on forms provided by the department and shall contain all the information required by such forms and any accompanying instructions.

[ ~~(h)~~ ] Each tanning facility shall provide the following information upon initial application for a license:

name, physical address, mailing [ ~~mail~~ ] address, and telephone number of the tanning facility;

if a proprietorship, the name of the proprietor; if a partnership, the names of all partners; if a corporation, the names of the corporate officers and/or directors, the corporation charter number [ ~~a copy of the articles of incorporation~~ ], and the name and address of its registered agent in the state; or if any other type of association, the names of the principals of such association;

the name(s), mailing address(es), telephone number(s), and valid driver's license number(s) of:

the proprietor in the case of a sole proprietorship;

the managing partner in the case of a partnership;

the officers and/or directors in the case of a corporation;

the principals in the case of an association;

[ ~~(D)~~ ] the operator in charge of the tanning facility;

hours of operation of each tanning facility; and

~~manufacturer(s), model number(s), and type(s) of ultraviolet lamp(s) for all tanning devices located at the tanning facility;]~~

~~name(s) of the tanning device supplier(s), installer(s), and service agent(s);]~~

copies of any posted warnings or notices the tanning facility uses in addition to those required by §229.350 of this title (relating to Warning Signs) which address the safety and proper use of tanning devices;]

~~copies of the informed consent forms and statements which the consumer, parent or legal guardian will sign as required in §229.354 of this title (relating to Records);]~~

~~procedures which the operator(s) will be required to follow for the correct use of tanning device(s), to include:]~~

~~instructions to the consumer;]~~

~~use of protective eyewear;]~~

~~suitability of prospective consumers for tanning device use;]~~

~~determination of duration of tanning exposures;]~~

~~periodic testing of tanning device(s) and timer(s);]~~

~~handling of complaints of injury or illness from consumers;]~~

~~records to be maintained on each consumer; and]~~

[ ~~(10)~~ ] signature of the owner verifying all information on the initial application form.

The renewal application for licensure as a tanning facility shall be made on a form furnished by the department and can be obtained as referenced in subsection (i) of this section.

[ ~~(i)~~ ] Failure to complete the initial or renewal application form may result in the denial of a license.

[ ~~(j)~~ ] The department will not issue a license under this section with respect to a facility that:

is operated under a license or permit as a sexually oriented business issued in accordance with [ ~~Local~~ ] Government Code, §243.007;

offers, as its primary business, a service or the sale, rental, or exhibition of a device or other item that is intended to provide sexual stimulation or sexual gratification to a customer; or

is owned or operated by a person who has been convicted of an offense under Penal Code, Chapter 21 or 43; or Penal Code,§71.02(a)(3).

§229.346.Licensing Fees.

All tanning facilities in Texas shall pay a [ an ] nonrefundable initial license fee of $150.

All tanning facilities shall pay a [ an ] nonrefundable annual renewal fee of $150 each year following issuance of the initial license.

A [ ~~All~~ ] tanning facility [ ~~facilities~~ ] shall pay a $100 delinquency fee if :

the license renewal fee is paid after the expiration date of the current license ; or

the initial license fee is paid more than 30 days following the effective date of a change in location, name, or ownership of an existing tanning facility as described in §229.345(h) of this title (relating to Licensing of Tanning Facilities).

The department may, upon receipt of a written request from a license holder, prorate an annual license fee for the purpose of consolidating the anniversary dates of multiple licenses issued in the name of the license holder.

§229.347.Revocation, Cancellation, Suspension, and Probation of a License.

The department shall revoke a license issued with respect to a facility if the license may not be renewed under §229.345(n) [ ~~§229.345(j)~~ ] of this title (relating to Licensing of Tanning Facilities).

If the department suspends a license, the suspension shall remain in effect until the department determines that the reason for suspension no longer exists. If the suspension overlaps a renewal date, the suspended license holder shall comply with the renewal procedures in §229.345(l) of this title (relating to Licensing of Tanning Facilities) and §229.346(b) of this title (relating to Licensing Fees), however the department may not renew the license until the department determines that the reason for suspension no longer exists.

If the department revokes or does not renew a license, a person may reapply for a license by complying with the requirements and procedures in §229.345(j) of this title and §229.346(a) of this title at the time of reapplication. The department may refuse to issue a license if the reason for revocation or nonrenewal continues to exist. A license holder named in a revocation action is not eligible for licensing under these sections for a period of one year from the date of the revocation.

~~A license issued under these sections shall be returned to the department if the tanning facility:]~~

~~ceases business or otherwise ceases operation on a permanent basis;]~~

~~relocates;]~~

~~changes the name of the business under which the tanning facility operates; or]~~

changes ownership. For a corporation, an ownership change is deemed to have occurred, resulting in the necessity to return the license to the department, when 5.0% or more of the share of stock of a corporation is transferred from one person to another.]

§229.348.Report of Changes.

The license holder shall notify the Texas Department of Health (department) in writing within ten days of any change , including a change in location, name, or ownership of a tanning facility, which would render the information contained in the initial license application, reported pursuant to §229.345 of this title (relating to Licensing of Tanning Facilities), no longer accurate. Failure to inform the department within ten days of a change in the information required in the initial license application may result in enforcement action as described in §229.357 of this title (relating to Enforcement and Penalties) [ a suspension or revocation of the license. This requirement shall not apply for changes involving replacement of designated original equipment lamp types with lamps which have been certified with the United States Food and Drug Administration (FDA) as "equivalent" lamps under the FDA regulations and policies applicable at the time of replacement of the lamps. The facility operator shall maintain lamp manufacturer's labeling at the facility, demonstrating the equivalence of any replacement lamps ].

§229.349.Advertising.

A business described in §229.345(n) [ ~~§229.345(j)~~ ] of this title shall not use the word "tan" or "tanning" in a sign or any other form of advertising.

§229.351.Tanning Devices.

~~There shall be physical barriers to protect consumers from injury induced by touching or breaking the lamps.]~~

[ ~~(h)~~ ] The tanning devices shall be maintained in good repair.

[ ~~(i)~~ ] Defective or burned-out lamps or filters shall be replaced with a type intended for use in that device as specified on the device label, or with lamps or filters that are "equivalent" under the United States Food and Drug Administration (FDA) regulations and policies applicable at the time of lamp manufacture. The facility operator shall maintain lamp manufacturer's user instruction labeling at the facility, demonstrating the equivalence of any replacement lamps, if applicable.

[ ~~(j)~~ ] A tanning device used by a tanning facility must comply with all applicable state and local electrical code requirements.

[ ~~(k)~~ ] When a tanning device is being used by an individual, no other person shall be allowed to remain in the tanning device area.

~~In addition, stand-up booths shall:]~~

~~have physical barriers or other means such as handrails or floor markings to indicate the proper exposure distance between ultraviolet lamps and the consumer's skin;]~~

~~be constructed to withstand the stress of use and the impact of a falling person;]~~

~~have rigid doors which open outward; and]~~

~~have handrails and non-slip floors.]~~

§229.352.Protective Eyewear.

Protective eyewear shall be located in the immediate proximity of each tanning device , readily visible to a person about to use the device, and shall be provided without charge to each user of a tanning device.

Protective eyewear shall meet the requirements of 21 Code of Federal Regulations, Part 801 and Part 1040, §1040.20(c)(4).

§229.353.Operators.

Each operator must be sufficiently trained and knowledgeable in the correct operation of the tanning devices used at the facility to adequately inform and assist each customer in the proper use of the tanning devices. A record of all training received by each operator shall be kept at the tanning facility where the operator is employed. The record shall be signed by the operator and the owner or owner's designee . The operator must be able to demonstrate such knowledge concerning the:

Written procedures shall be established and maintained at the tanning facility which describe the requirements operator(s) will follow for the correct use of tanning device(s), to include:

instructions to the consumer;

use of protective eyewear;

suitability of prospective consumers for tanning device use;

determination of duration of tanning exposures;

periodic testing of tanning device(s) and timer(s);

handling of complaints of injury or illness from consumers; and

records to be maintained on each consumer.

§229.354.Records.

Customer [ ~~Liability~~ ] notice.

Signed warning statement.

Each time a customer who is 18 years of age or older uses a tanning facility device for the first time and each time a person executes or renews a contract to use a tanning facility device, the person shall sign and date a written statement acknowledging that the person has read and understood the required warnings in §229.350 of this title (relating to Warning Signs) and subsection (a) of this section before using the device and agrees to use protective eyewear.

Individual consumer records. An individual record shall be kept by the facility operator of each consumer's date of birth, total number of tanning visits, exposure lengths in minutes, times and dates of the exposures, any injuries or illnesses resulting from the use of a tanning device, and any written informed consent statement required to be signed in this section. Any record of consumer exposure to ultraviolet light from a tanning device shall reflect the identity of the tanning device responsible for the exposure. The operator must ensure that no individual is allowed to use a tanning device more than once every 24 hours.

§229.356.Sanitation.

The operator shall clean and properly sanitize any reusable protective eyewear [ ~~Protective eyewear shall be sanitized~~ ] before each use with a sanitizer registered with the United States Environmental Protection Agency (USEPA). Exposure to the ultraviolet radiation produced by the tanning equipment itself is not considered a sanitizing agent.

A test kit or other device that accurately measures the concentration of the sanitizing solution in parts per million shall be used to measure the strength of the sanitizing solution at least once per day of tanning facility operation or more frequently as needed to ensure sufficient strength of the sanitizing solution. All measurements of the sanitizing solution shall be recorded in a log that includes the date of the measurement, the strength of the sanitizing solution measured in accordance with manufacturer's directions, and the initials of the operator responsible for measuring the strength of the sanitizing solution.

Floors in rooms containing tanning devices are to be constructed of nonabsorbent, easily cleanable materials. Tanning [ ~~New tanning~~ ] facilities shall not include carpeting in rooms containing tanning devices. [ ~~Existing facilities with carpeting in rooms containing tanning devices shall remove the carpeting from such rooms whenever the facilities are extensively remodeled.~~ ]

§229.357.Enforcement and Penalties.

Adulterated or misbranded tanning device. If the Texas Department of Health (department) identifies an adulterated or misbranded tanning device, the department may enforce the applicable provisions of Subchapter C of the Texas Food, Drug, and Cosmetic Act (Health and Safety Code, Chapter 431) including, but not limited to: detention, emergency order, recall, condemnation, destruction, injunction, civil penalties, criminal penalties [ ~~enforcement~~ ], and/or administrative penalties . [ , ] Administrative and civil penalties will be assessed using the Severity Levels contained [ ~~set out~~ ] in §229.261 of this title (relating to Assessment of Administrative or Civil Penalties).

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 18, 2001.

General Counsel

Texas Department of Health

Earliest possible date of adoption: March 4, 2001

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

Chapter 265. GENERAL SANITATION

Subchapter J. ADVISORY COMMITTEE

25 TAC §265.131

The Texas Department of Health (department) proposes an amendment to §265.131 concerning the Registered Sanitarian Advisory Committee. Specifically, the amendment covers the establishment, structure, and composition of a registered sanitarian advisory committee. The amendment is necessary to separate the Sanitarian/Code Enforcement Officers' Advisory Committee into the Registered Sanitarian Advisory Committee in this chapter and the Code Enforcement Officers' Advisory Committee in Chapter 130 of this title.

L. Jann Melton-Kissel, Director of Budget and Legislative Policy Analysis, Bureau of Licensing and Compliance, has determined that there will not be any fiscal impact on state government for each year of the first five years the amendment as proposed is in effect. There will not be any fiscal implication for local governments.

Ms. Melton-Kissel has also 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 section will be to provide broader representation and increased stakeholder input into rules regarding the registration of professional sanitarians. The section establishes an advisory committee to the Board of Health and do not impact the regulated community. Therefore, there will be no effect on small businesses and no effect on microbusinesses. 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 Yvonne Feinleib, Program Administrator, Registered Sanitarian Program, Professional Licensing and Certification Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3183, (512) 834-4517. Comments will be accepted for 30 days following publication of this proposal in the Texas Register .

The amendment is proposed under the Texas Health and Safety Code, §11.016, which allows the Board of Health (board) with the authority to establish advisory committees; and Health and Safety Code, §12.001, which provides the board with authority to adopt rules to implement every duty imposed by law on the board, the department and the commissioner of health.

The amendment affects Texas Civil Statutes, Article 4477-3, and Health and Safety Code, Chapter 11 and 12.

Registered Sanitarian [ ~~Sanitarian/Code Enforcement Officers'~~ ] Advisory Committee.

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

The name of the committee shall be the Registered Sanitarian [ ~~Sanitarian/Code Enforcement Officers'~~ ] Advisory Committee (committee).

Purpose. The purpose of the committee is to provide advice to the board in the area of rules regarding registered professional sanitarians [ ~~and code enforcement officers~~ ].

The committee shall assist the board concerning rules relating to registered professional sanitarians [ ~~and code enforcement officers~~ ].

The committee shall advise the department in establishing regulations regarding the registration of professional sanitarians [ and promoting the registration of qualified individuals as professional sanitarians and shall advise the department on the adoption and enforcement of regulations regarding the registration of code enforcement officers ].

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

three registered sanitarians [ ~~consumer representatives~~ ];

one professional engineer; [ ~~three code enforcement officers; and~~ ]

two consumers, one of which must be a member of an industry or occupation which is regulated by the Texas Department of Health; and [ ~~three registered sanitarians.~~ ]

one person involved in education in the field of public, consumer, or environmental health sciences.

Officers. The chairman of the board shall appoint a presiding officer and an assistant presiding officer to begin serving on September 1 of each odd-numbered year.

~~The presiding officer and assistant presiding officer serving on August 1, 1999, will continue to serve until the chairman of the board appoints their successors.]~~

Meetings. The committee shall meet at least once each year [ ~~only as necessary~~ ] to conduct committee business.

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 18, 2001.

General Counsel

Texas Department of Health

Earliest possible date of adoption: March 4, 2001

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