TITLE 40.SOCIAL SERVICES AND ASSISTANCE

Part 1. TEXAS DEPARTMENT OF HUMAN SERVICES

Chapter 92. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES

The Texas Department of Human Services (DHS) adopts amendments to §92.20 and §92.157. The amendments are adopted without changes to the proposed text published in the December 21, 2001, issue of the Texas Register (26 TexReg 10490) and will not be republished.

Justification for the amendments is to establish a separate trust fund account for assisted living facilities, as directed by the 77th Legislature in Senate Bill 527.

DHS received no comments regarding adoption of the amendments.

Subchapter B. APPLICATION PROCEDURES

40 TAC §92.20

The amendment is adopted under the Health and Safety Code, Chapter 242, which authorizes the establishment of the assisted living facility trust fund and an additional assisted living facility license fee, and under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The amendment implements the Health and Safety Code, §§242.0965 - 242.0975 and §§247.001 - 247.068.

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

Filed with the Office of the Secretary of State on February 7, 2002.

TRD-200200805

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Effective date: March 1, 2002

Proposal publication date: December 21, 2001

For further information, please call: (512) 438-3734

Subchapter H. ENFORCEMENT

40 TAC §92.157

The amendment implements the Health and Safety Code, §§242.0965 - 242.0975 and §§247.001 - 247.068.

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

Filed with the Office of the Secretary of State on February 7, 2002.

TRD-200200806

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Effective date: March 1, 2002

Proposal publication date: December 21, 2001

For further information, please call: (512) 438-3734

Chapter 92. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES

Subchapter D. FACILITY CONSTRUCTION

40 TAC §92.71, §92.72

The Texas Department of Human Services (DHS) adopts amendments to §92.71 and §92.72. The amendments are adopted without changes to the proposed text published in the December 21, 2001, issue of the Texas Register (26 TexReg 10491) and will not be republished.

Justification for the amendments is to provide a Type E assisted living facility license for two-story buildings that meet certain Life Safety Code conditions, and implement Senate Bill 691 and Senate Bill 527, which amended the Health and Safety Code, Chapter 247.

DHS received two written comments from the Building Officials Association of Texas and the Southern Building Code Congress International, Inc., Southwest Region. All comments were given serious consideration. No rule changes were made as a result of the comments. A summary of the comments and the department's response follows.

Comment: Both groups expressed similar concerns. They recommended the proposed rules be withdrawn and that DHS stop using the National Fire Protection Association (NFPA) 101 as the primary fire safety code. They stated that using the NFPA 101 as the standard code is in contrast with the recognized codes used throughout Texas by most municipalities. Municipalities use codes that address safe building construction.

Response: No changes were made to the proposed rules. Facilities must abide by the regulations enforced by DHS. On initial construction, facilities must obtain written approval from local authorities that have jurisdiction, including the fire marshal and building inspector, who enforce the municipality's building codes. It is not within DHS's authority to make this change. The language in the proposed rule is taken directly from the Health and Safety Code, §247.030(b).

The amendments are adopted under the Health and Safety Code, Chapter 247, which authorizes DHS to license and regulate assisted living facilities.

The amendments implement the Health and Safety Code, §§247.001 - 247.068.

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

Filed with the Office of the Secretary of State on February 7, 2002.

TRD-200200807

Paul Leche

General Counsel, Legal Services

Texas Department of Human Services

Effective date: March 1, 2002

Proposal publication date: December 21, 2001

For further information, please call: (512) 438-3734

Part 4. TEXAS COMMISSION FOR THE BLIND

Chapter 159. ADMINISTRATIVE RULES AND PROCEDURES

Subchapter E. PURCHASE OF GOODS AND SERVICES BY THE COMMISSION

40 TAC §§159.100 - 159.123

The Texas Commission for the Blind adopts new §§159.100 - 159.123, concerning the purchase of goods and services, without changes to the text proposed in the November 23, 2001, issue of the Texas Register (26 TexReg 9552). The text will not be republished. No comments were received in response to the proposal. The new rules are adopted to serve as the Commission's rules for purchasing goods and services, whether for administrative or consumer use or benefit. They set forth the Commission's procurement objectives and general purchasing principles, define terms, explain factors used in determining best value, provide notice of methods of procurement solicitation, explain the agency's procurement methods and standards, and contain protest procedures. The rules are consistent with those adopted by the Health and Human Services Commission in 1 TAC, Part 15, Chapter 391.

The rules are adopted under the authority of Human Resources Code §91.011, which allows the Commission to adopt rules prescribing the policies and procedures followed by the Commission in the administration of its programs, and Government Code, §2155.144(g), which requires health and human service agencies to adopt rules and procedures for the acquisition of goods and services that are consistent with the rules of the Health and Human Services Commission.

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

Filed with the Office of the Secretary of State on February 6, 2002.

TRD-200200774

Terrell I. Murphy

Executive Director

Texas Commission for the Blind

Effective date: February 26, 2002

Proposal publication date: November 23, 2001

For further information, please call: (512) 377-0611

Chapter 161. APPEALS AND HEARING PROCEDURES

Subchapter A. VOCATIONAL REHABILITATION AND INDEPENDENT LIVING PROGRAMS

40 TAC §161.42

The Texas Commission for the Blind adopts the amendment of §161.42, pertaining to impartial hearing officer decisions, without changes to the text proposed in the November 23, 2001, issue of the Texas Register (26 TexReg 9560). The text will not be republished. No comments were received in response to the proposal. The amendment is adopted to conform to federal requirements. The rule as amended prescribes the duties of the impartial hearing officer in issuing a hearing decision.

The amendment is adopted under the authority of Human Resources Code, Title 5, Chapter 91, §91.011, which allows the Commission to adopt rules prescribing the policies and procedures followed by the Commission in the administration of its programs.

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

Filed with the Office of the Secretary of State on February 6, 2002.

TRD-200200775

Terrell I. Murphy

Executive Director

Texas Commission for the Blind

Effective date: February 26, 2002

Proposal publication date: November 23, 2001

For further information, please call: (512) 377-0611

Part 20. TEXAS WORKFORCE COMMISSION

Chapter 800. GENERAL ADMINISTRATION

Subchapter C. PERFORMANCE AND CONTRACT MANAGEMENT

40 TAC §800.81

The Texas Workforce Commission (Commission) adopts new §800.81, regarding Performance, with changes as published in the August 10, 2001, issue of the Texas Register (26 TexReg 5990).

The purpose of Subchapter C is generally to set forth performance required by the Boards. The adopted rule emphasizes the relationship between the Commission and local workforce development boards (Boards) in assuring compliance with federal and state standards through a performance-based contract method. The purposes of the rule are to describe performance required by Boards and other subrecipients and to set forth Boards' responsibilities regarding performance.

Background: The 74th Texas Legislature enacted Texas' landmark legislation, which is codified in part in Texas Labor Code Chapter 302 and Texas Government Code Chapter 2308. This state law reformed both the welfare and workforce systems and moved Texas into a leadership position among reform-minded states. State law provided local elected officials the opportunity to form Boards that design and oversee the delivery of workforce development services that meet the needs of local employers and workers.

In order to determine the effectiveness of the delivery of workforce development services by the Boards, the Commission uses the standards set by federal and state law for the various services delivered by the Board to develop performance targets which are reflected in the contracts with the Boards. Progress towards of the achievement of these targets is reflected in the monthly performance measures available to the Boards in the Monthly Performance Reports and on a daily basis through the TWIST system.

The Commission sets policy regarding performance using federal and state performance standards. The Commission approves contract performance targets during the allocation process. In addition, the Commission sets policy regarding contracts to ensure that the performance targets are met and that contracts are performance-based. Performance-based contracts describe expectations in terms of specific outcomes, results, or final work products, as opposed to methods, processes, or designs. The Agency then incorporates performance targets in contracts with the Boards and other subrecipients of federal and state funds that are appropriated through the Commission.

The Commission ensures compliance with performance targets while providing options for the Boards to streamline processes and to exercise local flexibility. The Commission works with the Boards to ensure that contract performance targets are consistent with a Board's and state's strategic planning goals and objectives, and adjusted for local conditions including specific economic conditions and demographic characteristics to be served in the local workforce development area (workforce area) and other factors the Commission deems appropriate.

One of the goals of the Commission is to use, to the maximum extent practicable, performance-based contracting concepts and methods in its management of contracts with the Boards. Performance-based contracting concepts and methodologies that are generally applied to contracts with the Boards and other subrecipients are designed to: (1) describe performance targets in terms of results rather than methods of accomplishing the work; (2) use measurable (i.e., terms of quality, timeliness, quantity) standards and objectives and quality assurance plans; and (3) provide a basis for either performance incentive awards for achieving high performance or penalty imposition for low performance.

The Commission is charged with ensuring accountability of Boards and subrecipients of the Agency. Boards are charged with the oversight and management of the delivery of services. Subrecipients are charged with providing services consistent with the terms of the contracts.

Texas Government Code Chapter 2308, Texas Labor Code Title 4 and federal statutes and regulations have made Boards responsible for a number of duties related to the administration of Commission-funded activities, including maintaining adequate fiscal systems, complying with the uniform rules for administration of grants and agreements, meeting the contract performance targets, and complying with all applicable federal and state statutes and regulations.

Comments were received from the Southeast Texas Workforce Development Board. The commenter did not indicate whether it was for or against the rule, but conveyed observations and posed questions regarding the rule. The comment summaries and responses are as follows:

Comment: Regarding §800.81(a), the commenter stated that WIA performance is not measured based upon contractor standards. The commenter also indicated that performance is measured in practice by the Monthly Performance Reports, which utilize the characteristics of the participants in the program at any given time. The commenter remarked that these measures fluctuate.

Response: The Commission agrees that a Board's performance is impacted by the characteristics of the participants served and required to be served at any given time. However, the Board contracts contain language that sets forth the methodology used by the Commission to calculate performance. The Monthly Performance Reports also provide a snap shot for the Boards of the Boards' estimated year-end WIA adjustment factors. A Board is able to generate a TWIST report to monitor the Board's estimated performance at any point in time. In addition, the Commission makes available Monthly Performance Reports that present adjusted contract targets for WIA measures. Those Monthly Performance Reports represent the official adjusted contracted targets. In response to the comment, the Commission agrees with clarifying the language in the rule. The Commission is committed to fostering an outcome-based system of evaluating the performance of Boards to assure accountability and ensure the effective and efficient provision of services funded by the Agency. The Commission has established the core indicators of performance and the Agency evaluates each Board's success in meeting the negotiated local levels of performance for each indicator. In a state with the size and diversity of Texas, there may be significant differences among local conditions in different workforce areas such as the characteristics of clients served and local economic conditions. The level of performance achieved by a Board may be affected by these differences. WIA performance targets for the individual Boards may be adjusted to take into consideration these differences among workforce areas. Conditions in a workforce area change during the course of a program year. The final measure of the differences among Boards in local conditions cannot be calculated until after the end of a program year. In order to evaluate performance under WIA during the course of the year and ensure continuous improvement, the Agency provides each Board with monthly-adjusted performance targets based on the most recent information on specific local conditions.

Comment: Regarding §800.81(f) and (g), the commenter stated that subsection (g) appears to negate subsection (f) and questioned whether the Commission still has the authority to determine the necessary adjustments to performance instead of engaging in a good faith negotiation process between the Commission and the Boards.

Response: The Commission believes that there is no apparent conflict between (f) and (g) for the following reasons. Subsection (f) addresses a Board's ability to request an adjustment to the local performance targets, while subsection (g) provides for the Commission allowing the Agency to make adjustments in reaction to specific local events or circumstances such as natural disasters or major economic changes. For that reason, the Commission does not agree to change the language of the rule.

In addition to the changes made in response to comments and because the purpose of the rule is to apply the rule to performance relating to other subrecipients, as well as to the Boards, a technical change is made to the title of the section and references to subrecipients are added to the language.

For information about the Commission please visit our web page at www.texasworkforce.org.

The new rule is adopted under Texas Labor Code §301.061 and §302.002, which provide the Texas Workforce Commission with the authority to adopt, amend, or repeal such rule as it deems necessary for the effective administration of Agency services and activities.

The rule affects Texas Labor Code, Chapter 302, and Texas Human Resources Code, Chapters 31 and 44.

§800.81.Performance

(a) A Board shall meet or exceed performance targets as referenced in contracts with the Agency.

(b) The Commission shall determine the performance targets based on federal and state performance standards and by using factors that may be necessary to achieve the mission of the Commission and reflect local conditions. The Commission approves individual Board performance targets annually, which may be adjusted based on local conditions including, but not limited to, specific economic conditions and demographic characteristics of the workforce area.

(c) A Board and other subrecipient shall comply with all Commission rules, Workforce Development (WD) Letters, the Grants and Contracts Manual, the Financial Manual and guidance letters of the Agency, including rules contained in other chapters of Part 20 of this title applicable to specific services and activities performed by a Board and other subrecipients.

(d) A Board's achievement of high levels of performance may result in the Commission providing incentives for the Board.

(e) A Board's failure to meet minimum levels of performance as referenced in the Board's contract may result in corrective actions, penalties or sanctions as specified in:

(1) Part 20 of this title (relating to the Texas Workforce Commission), including Chapter 800, Subchapter E relating to Sanctions;

(2) the Board's contract with the Commission; or

(3) as otherwise provided for by federal or state statute or rule.

(f) A Board may submit to the Commission a request for an adjustment to the minimum levels of performance.

(g) The Commission may determine what constitutes a necessary adjustment to local performance targets and may consider specific economic conditions and demographic characteristics to be served in the local workforce development area and other factors the Commission deems appropriate including the anticipated impact of the adjustment on the state's performance.

(h) The Governor may adopt additional performance incentives and sanctions provisions as provided in WIA.

(i) A Board shall comply with and remain subject to the provisions contained in Chapter 805 effective on July 1, 2001, relating to performance or any other matters addressed in Chapter 805 regarding any funds granted by the Secretary of Labor under the JTPA regulations or Act, including NRA and other funds.

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

Filed with the Office of the Secretary of State on February 5, 2002.

TRD-200200711

John Moore

Assistant General Counsel

Texas Workforce Commission

Effective date: February 25, 2002

Proposal publication date: August 10, 2001

For further information, please call: (512) 463-2573