TITLE 25.HEALTH SERVICES

Part 2. TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION

Chapter 410. VOLUNTEER SERVICES AND PUBLIC INFORMATION

Subchapter C. CAPITAL IMPROVEMENTS BY CITIZEN GROUPS

25 TAC §§410.101 - 410.122

(Editor's note: The text of the following sections proposed for repeal will not be published.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

The Texas Department of Mental Health and Mental Retardation (TDMHMR) proposes the repeal of existing §§410.101 - 410.122 of Chapter 410, Subchapter C, concerning capital improvements by citizens groups. New §§417.151 - 417.158 of Chapter 417, Subchapter D, concerning the same, are contemporaneously proposed in this issue of the Texas Register .

The subchapter described the procedures for citizens and community groups to provide all or part of a capital improvement to a facility.

A key difference between the sections proposed for repeal and proposed new sections is that a TDMHMR Proposed Real Property Change Form has been added to provide the facility CEOs and Central Office division directors with the opportunity to review positive and negative implications associated with the implementation of the permanent improvement.

Cindy Brown, chief financial officer, has determined that for each year of the first five years the repealed rules are in effect, enforcing or administering the rules does not have foreseeable significant implications relating to cost or revenue of the state or local governments because the proposed new rules are not significantly different from the rules proposed for repeal.

William R. Campbell, deputy commissioner for Finance and Administration, has determined that, for each year of the first five years the proposed new rules are in effect, the public benefit expected is the provision of clear and concise information regarding the donation and implementation of permanent improvements. It is anticipated that there would be no additional economic cost to persons required to comply with the proposed rules because they do not impose additional requirements on such persons.

It is anticipated that the repealed rules will not affect a local economy because the rules are not significantly different for the requirements included in the proposed new rules, which did not affect a local economy.

It is anticipated that the rules proposed for repeal will not have an adverse economic effect on small businesses or microbusinesses because the rules do not significantly alter the requirements included in the proposed new rules.

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

These sections are proposed under the Texas Health and Safety Code, §532.015(a), which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority.

These proposed sections would affect no statute, article, or code.

§410.101.Purpose.

§410.102.Application.

§410.103.Definitions.

§410.104.Initial Contact with Persons Desiring to Provide Capital Improvements; the Nature of the Volunteer Services Council.

§410.105.Appointment of Capital Improvement Committee; Ex Officio Members.

§410.106.Functions and Responsibilities of the Capital Improvement Committee.

§410.107.Retaining a Design Professional; Requirements for an Agreement with a Design Professional.

§410.108.Capital Improvement Proposal Letter; Contents; Proposed Name for the Improvement; Recipients of Letter.

§410.109.Approval, Recommendation, and Action by the Board.

§410.110.Responsibilities of the Capital Improvement Committee with Respect to Fundraising Activities.

§410.111.Programming Phase: Establishment of the Program for the Project; Selection of the Capital Improvement Site.

§410.112.Schematic Design Phase: Preparation, Review, and Approval of Drawings and Specifications.

§410.113.Design Development and Contract Documents Phase.

§410.114.Bidding the Project; Reserving the Right to Reject Any and All Bids; Procedures Where There Are Insufficient Funds; Additional Review by Commissioner Required When Contract Documents Are Modified.

§410.115.Placing Funds in Escrow.

§410.116.Signing the Contract; Requisites of the Contract.

§410.117.Capital Improvements Contract: Conference Before Commencement of Contracted Work; Duties of the Professional Consultant during the Capital Improvement Project.

§410.118.Completion and Acceptance of the Project.

§410.119.Design and Construction Codes and Standards.

§410.120.Resources Available to the Capital Improvement Committee.

§410.121.References.

§410.122.Distribution.

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 March 18, 2002.

TRD-200201666

Andrew Hardin

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: April 28, 2002

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


Chapter 417. AGENCY AND FACILITY RESPONSIBILITIES

Subchapter D. PERMANENT IMPROVEMENTS DONATED BY INDIVIDUALS OR COMMUNITY GROUPS

25 TAC §§417.151 - 417.158

The Texas Department of Mental Health and Mental Retardation (TDMHMR) proposes new §§417.151 - 417.158 of Chapter 417, Subchapter D, concerning permanent improvements donated by individuals or groups. Existing §§410.101 - 410.122 of Chapter 410, Subchapter C, concerning the same, which the new sections would replace, are contemporaneously proposed for repeal in this issue of the Texas Register .

The subchapter would describe the procedures for individuals and community groups to provide all or part of a permanent improvement to a facility.

A key difference between the proposed new sections and the sections proposed for repeal is that the TDMHMR Proposed Real Property Change Form has been added to provide facility CEOs and Central Office division directors with the opportunity to review positive and negative implications associated with the implementation of the permanent improvement.

Cindy Brown, chief financial officer, has determined that for each year of the first five years the proposed new rules are in effect, enforcing or administering the rules does not have foreseeable significant implications relating to cost or revenue of the state or local governments because the proposed new rules are not significantly different from the rules proposed for repeal.

William R. Campbell, deputy commissioner for Finance and Administration, has determined that, for each year of the first five years the proposed new rules are in effect, the public benefit expected is the provision of clear and concise information regarding the donation and implementation of permanent improvements. It is anticipated that there would be no additional economic cost to persons required to comply with the proposed rules because they do not impose additional requirements on such persons.

It is anticipated that the proposed new rules will not affect a local economy because the rules do not significantly alter the requirements included in the rules proposed for repeal, which did not affect a local economy.

It is anticipated that the proposed new rules will not have an adverse economic effect on small businesses or microbusinesses because the rules do not significantly alter the requirements included in the rules proposed for repeal.

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

These sections are proposed under the Texas Health and Safety Code, §532.015(a), which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority.

These proposed sections would affect no statute, article, or code.

§417.151.Purpose.

The purpose of this subchapter is to establish policies and procedures for donating and completing a permanent improvement.

§417.152.Application.

The provisions of this subchapter apply to situations in which donor proposes to donate cash to a facility for a permanent improvement or a completed permanent improvement.

§417.153.Definitions.

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

(1) Asset Management--The Central Office division whose staff are responsible for overseeing TDMHMR's real property.

(2) Board--The Texas Board of Mental Health and Mental Retardation.

(3) Bond--A contract agreement pledging surety for financial loss caused to another by the act or default of a third person or by some contingency over which the third person may have no control.

(4) Business entity--A sole proprietorship (including a person), partnership, firm, corporation, holding company, joint-stock company, receivership, trust, or any other entity recognized by law.

(5) Central Office (CO)--The Texas Department of Mental Health and Mental Retardation, located at 909 West 45th Street, Austin.

(6) Central Office (CO) Community Relations--The Central Office division whose staff are responsible for providing support to facility community relations programs, including volunteer services, nonprofit management, and fundraising.

(7) Commissioner--The commissioner of the Texas Department of Mental Health and Mental Retardation.

(8) Community group--A volunteer services council affiliated with TDMHMR or a group of people associated with an organization (e.g. civic, fraternal, corporate, religious, social, service, community, or educational.

(9) Contract documents--The owner/contractor agreement that describes the conditions of the contract (e.g., general, supplementary, and other conditions), contractor's bid (or bid in lieu of proposal), invitation and instructions to bidders, drawings, specifications, and all addenda issued prior to, and all modifications issued after execution of the contract. The contract documents form the contract that represents the entire integrated agreement between the owner and the contractor and supersedes all prior negotiations, representations, or agreements, either written or oral. The contract documents are complementary and what is required by any one document is as binding as if required by all the documents.

(10) Contractor--The business entity that has been awarded the contract for implementing a specific permanent improvement.

(11) Design professional--An architect or engineer who is licensed by the state of Texas to perform activities within the scope of professional architecture or professional engineering.

(12) Donor--A person or community group who wants to donate a permanent improvement.

(13) Director, facility community relations--The staff person who is responsible for coordinating the community relations functions, volunteer programs, and fundraising at a facility.

(14) Facility--A state school, state hospital, state center, or other real property, except Central Office, that is operated by the Texas Department of Mental Health and Mental Retardation (TDMHMR).

(15) Facility chief executive officer (CEO)--The chief administrator of a facility.

(16) Local project manager--A facility staff person designated by the permanent improvement committee who acts on behalf of the committee in dealing with the design professional and contractor for the duration of the improvement.

(17) Maintenance and Construction- The division at Central Office whose staff are responsible for the administration of the department capital construction program.

(18) Maintenance and Construction (MC) project manager--A Central Office Maintenance and Construction staff person who acts as TDMHMR's representative for the duration of a permanent improvement and as an advisor to assigned facilities and the permanent improvement committee in matters relating to an improvement.

(19) Major project--A proposed permanent improvement that is estimated to cost $25,000 or more and/or requires $10,000 or more of additional annual operating funds.

(20) Minor project--A proposed improvement that is estimated to cost under $25,000 and requires less than $10,000 of additional annual operating funds.

(21) Permanent improvement (improvement)--A facility improvement that requires construction (e.g., new building, building addition, building remodeling, building renovation, structural changes to an existing building, gazebo or pavilion, road, sidewalk, fountain, pond, and any improvement that requires installation or extension of a mechanical, electrical, plumbing, or other utility system.) For the purpose of this subchapter only, projects consisting of landscaping, equipment replacement, or building system replacement are not considered a permanent improvement.

(22) Permanent improvement committee (committee)--The committee that is appointed by the Volunteer Services Council for the purpose of overseeing and/or donating a permanent improvement.

(23) Plant maintenance manager--The staff person who is responsible for managing plant maintenance activities at a state hospital, state school, or state center and serves as a non voting member of the permanent improvement committee.

(24) SMHMRFs--State Mental Health and Mental Retardation Facilities.

(25) TDMHMR--The Texas Department of Mental Health and Mental Retardation.

(26) Volunteer services council (VSC)--A facility's 501(c)(3) organization that is formed for generating resources on behalf of the facility and to appoint a permanent improvement committee to implement permanent improvements.

(27) Volunteer services council (VSC) chair--The primary officer of the board of directors of the facility volunteer services council, elected according to the VSC bylaws.

§417.154.Proposal Review and Approval Authority.

(a) If a donor proposes to make a cash donation for the specific purpose of constructing a permanent improvement, the proposal must be reviewed according to §417.155 (a)-(c) of this title (relating to Permanent Improvement Approval Process). If the proposal is approved, the cash donation must be accepted by TDMHMR and used to design and construct the proposed improvement. Improvements must be implemented according to construction procedures described in the Plant Maintenance Operating Instruction (407-3) or as part of the TDMHMR's capital construction program that is administered by Maintenance and Construction staff. Upon acceptance by TDMHMR, the donor is provided with periodic project status reports and notified by the facility CEO when construction is complete.

(b) If a donor proposes to construct a permanent improvement on facility grounds, the proposed improvement must be reviewed and approved according to §417.155 of this title (relating to Permanent Improvement Approval Process).

§417.155.Permanent Improvement Approval Process.

(a) Approval process. The permanent improvement approval process is described in this subchapter. More detailed information about the process is described in the TDMHMR Permanent Improvement Program Manual.

(b) Concept description. A letter must be submitted by the director, facility community relations and facility CEO describing the concept of the proposed improvement. The concept is reviewed and approved by the appropriate director, SMHMRFs, and the commissioner.

(c) Preliminary proposal. A preliminary proposal, i.e., the TDMHMR Proposed Real Property Change Form, which is referenced as Exhibit A in §417.156 of this title (relating to Exhibit), must be completed for a proposed improvement by the director, facility community relations; VSC chair; and donor, as appropriate, and submitted to the facility CEO to provide the facility CEO and Central Office (CO) staff with an opportunity early in the process to identify issues and opportunities associated with the improvement and to provide the donor with feedback.

(d) Formal proposal. A formal proposal must be completed and submitted to the director, CO Community Relations for each proposed improvement including a description of the improvement that is developed jointly by the facility CEO and director, facility community relations, and the design professional (if available) to establish the function and scope of the improvement. A proposed name for the completed improvement may be included in the formal proposal. A formal proposal for a minor project is approved by the commissioner and a formal proposal for a major project is approved by the board.

(e) Schematic design. Upon approval of the formal proposal, a schematic design for each improvement is developed by the permanent improvement committee in conjunction with a design professional to illustrate the scope of the project, its relationship to the site and adjacent structures, and the probable cost. The completed schematic design is submitted by the VSC chair and facility CEO who submits it to the commissioner for approval.

(1) Permanent improvement committee. The executive committee of the VSC board of directors appoints a permanent improvement committee for each improvement that is comprised of:

(A) voting VSC members who are individuals from the community; and

(B) non voting, permanent members of the committee include the facility CEO; director, facility community relations; facility business manager plant maintenance manager; MC project manager; and the local project manager to oversee the implementation of the improvement.

(2) Design professional. Unless waived by the director, Maintenance and Construction, each improvement must be underwritten by a design professional. The design professional shall solicit input from the permanent improvement committee and prepare the schematic design based upon the approved formal proposal.

(3) Fundraising expenses. With board approval, the committee is responsible for organizing and conducting fundraising activities. A rendition can be a brochure or portfolio that may include a project narrative, drawings, budget information, pledge card, or information on how a donor may participate in implementing the improvement.

(f) Design development. Except as provided by subsection (f)(2) of this subsection, upon approval of the schematic design, the design professional prepares the drawings and specifications necessary to establish the size and character of the improvement, including the structural, mechanical, and electrical systems, and the types of materials necessary to implement the improvement, including a reevaluation and adjustment to the statement of probable cost as necessary.

(1) Design development documents are submitted by the permanent improvement committee to the director, Maintenance and Construction, for approval.

(2) Based upon the advice of the design professional, the permanent improvement committee may request that the director, Maintenance and Construction exempt the improvement from the requirement to prepare design development documents for smaller, less complex improvements.

(g) Contract documents. Upon approval of or exemption from completing the design development documents, the design professional prepares, develops, or obtains working drawings and specifications in sufficient detail to implement the improvement, bidding information (including reevaluating and adjusting the previous statement of probable construction costs based on any changes in the improvement's scope or requirements), and any and all documents and permits from government or other agencies with jurisdiction over the improvement.

(1) Approval. The completed contract documents are submitted to the commissioner for approval.

(2) Modification. If the contract documents are modified in any way from the condition in which they were approved by the commissioner, they must be resubmitted for approval before such modifications to the improvement may be implemented.

(3) Right to reject. The contract documents must reserve the committee's right to reject any and all bids in the event the minimum cost of the improvement exceeds the available funding.

(4) Escrow funds. The committee must ensure that sufficient funds are available to pay for the total cost of the improvement prior to beginning construction. A letter from the committee that is certified by the VSC chair verifying that the required amount of funds has been placed in an interest bearing, escrow account that is insured by state or federal law is submitted to the commissioner prior to executing any contract pertaining to construction of the improvement.

(h) Construction and oversight. The committee is responsible for construction oversight of the improvement through completion according to the requirements described in the contract documents.

(1) Volunteers. Based on the recommendation of the design professional and with the approval of the director, Maintenance and Construction, the committee may enlist the service of volunteers to construct smaller, less complex improvements.

(2) Contractors. If volunteers are not enlisted to construct the improvement, the committee with the assistance from the design professional must ensure that a qualified contractor is enlisted to construct the improvement according to the provisions specified in the contract documents.

(i) Completing and accepting an improvement. Upon completing the improvement, the VSC chairman or designee notifies the commissioner in writing that the committee is ready to convey the improvement to the state. A final inspection of the improvement is conducted by Maintenance and Construction staff to verify that the improvement is free of deficiencies. Upon receiving such verification, the commissioner acknowledges acceptance of the improvement in writing to the facility CEO, VSC chair, and the donor. At that time, TDMHMR and the facility at which the improvement is located assume responsibility for the use and maintenance of the improvement.

§417.156.Exhibit.

This subchapter references Exhibit A - TDMHMR Proposed Real Property Change Form, copies of which are available by contacting TDMHMR, Asset Management, P.O. Box 12668, Austin, TX 78711-2668.

§417.157.Reference.

Reference is made to the TDMHMR Permanent Improvement Program Manual.

§417.158.Distribution.

(a) The subchapter is distributed to the board, commissioner, medical director; deputy commissioners, Community Programs and Finance and Administration; directors, SMHMRFs; Central Office program staff; and facility CEOs.

(b) The facility CEO is responsible for the disseminating this subchapter to appropriate 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 March 18, 2002.

TRD-200201667

Andrew Hardin

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: April 28, 2002

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