Part 1.
TEXAS DEPARTMENT OF HEALTH
Chapter 13.
HEALTH PLANNING AND RESOURCE DEVELOPMENT
Subchapter E. ADVISORY COMMITTEE
25 TAC §13.51
The Texas Department of Health (department) adopts the repeal
of §13.51, concerning the Hospital Data Advisory Committee (committee)
without changes to the proposal as published in the January 31, 2003, issue
of the
Texas Register
(28 TexReg 819). The
committee has provided advice to the Texas Board of Health (board) and the
department on hospital reporting requirements and on interpretation and evaluation
of the data received.
In 1993, the Texas Legislature passed Senate Bill 383 (now codified in
the Government Code, Chapter 2110) which requires that each state agency adopt
rules on advisory committees. The rules must state the purpose of the committee,
describe the tasks of the committee, describe the manner in which the committee
will report to the agency, and establish a date on which the committee will
be automatically abolished unless the governing body of the agency affirmatively
votes to continue the committee's existence.
In 1995, the board established a rule relating to the Hospital Data Advisory
Committee. The rule states that the committee will automatically be abolished
on May 1, 2003, and the board has determined that the committee should be
abolished on that date. Issues relating to the type of advice previously provided
by the committee are better addressed through the establishment of ad hoc
workgroups.
Government Code, §2001.039, requires that each state agency review
and consider for readoption each rule adopted by that agency pursuant to the
Government Code, Chapter 2001 (Administrative Procedure Act). The department
has reviewed §13.51 and has determined that reasons for adopting the
rule no longer continue to exist.
The department published a Notice of Intention to Review §13.51 in
the
Texas Register
on December 27, 2002 (27
TexReg 12382). No comments were received due to publication of this notice.
There were no comments received concerning the repeal during the 30-day
comment period.
The repeal is adopted under the Health and Safety Code, §11.016,
which allows the board to establish advisory committees; the Government Code,
Chapter 2110, which sets standards for the evaluation of advisory committees
by the agencies for which they function; and the Health and Safety Code, §12.001,
which provides the board with authority to adopt rules for the performance
of every duty imposed by law upon the board, the department, and the commissioner
of health.
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 April 4, 2003.
TRD-200302217
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: April 24, 2003
Proposal publication date: January 31, 2003
For further information, please call: (512) 458-7236
Subchapter A. CANCER REGISTRY
25 TAC §91.4
The Texas Department of Health (department) adopts an amendment
to §91.4, concerning cancer incidence reporting requirements without
changes to the proposed text as published in the January 31, 2003, issue of
the
Texas Register
(28 TexReg 820). The amended
section clarifies cancer incidence information that persons are required to
report to the department.
The department reviewed the rule to ensure that covered entities under
the Health Insurance Portability and Accountability Act of 1996 (HIPAA) would
continue to report the same information they currently report after the federal
HIPAA privacy standards (45 Code of Federal Regulations (CFR), Parts 160 and
164) become effective on April 14, 2003. The amended section clarifies the
rule to ensure there will be no change in the information reported under this
section, and to further ensure that HIPAA covered reporting entities will
comply with the letter and the spirit of the HIPAA privacy standards.
The amended section elucidated discrepancies between the rule and the information
the department currently receives. The amended section makes no change in
the information a person is currently required to report to the department
and ensures that persons required to report will have continuing authority
to disclose protected health information (PHI) to the department after the
implementation date of the federal privacy standards.
The department received the following comment concerning the proposed section.
Comment: Concerning §91.4(b)(1)(H), a commenter recommended that wording
be added to include advanced practice nurses by changing the word "physician"
to "practitioner or advanced practice nurse" since advanced practice nurses
(APN) are also legally authorized to order laboratory exams.
Response: The department disagrees with the suggested change. The department
is authorized by the Health and Safety Code, §82.008 to collect cancer
data from health care facilities, clinical pathology laboratories or health
care practitioners. A health care practitioner is defined as a physician or
dentist by §82.002. No change was made as a result of this comment.
One comment was received from the Coalition for Nurses In Advanced Practice
and was generally in favor of the rule, however, it offered one suggested
change.
The amended section is adopted under the Health and Safety Code, §82.006,
which authorizes the board to adopt rules necessary to implement the Cancer
Registry; and §12.001, which provides the board with the authority to
adopt rules for the performance of each duty imposed by law on the board,
the department, and the commissioner.
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 April 4, 2003.
TRD-200302218
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: April 24, 2003
Proposal publication date: January 31, 2003
For further information, please call: (512) 458-7236
25 TAC §99.1
Texas Department of Health (department) adopts an amendment
to §99.1, concerning reporting requirements to the department, with changes
to the proposed text as published in the January 31, 2003, issue of the
The program reviewed the rule to ensure that covered entities under the
Health Insurance Portability and Accountability Act of 1996 (HIPAA) would
continue to report the same information they currently report after the federal
HIPAA privacy standards (45 Code of Federal Regulations (CFR), Parts 160 and
164) which became effective on April 14, 2003. The HIPAA privacy standards
contain sections that allow HIPAA covered entities to use and disclose protected
health information (PHI), which is individually identifiable health information,
without the authorization of the individual, if the use and disclosure is
required by law or rule, the use and disclosure complies with the law or rule
and is limited to the requirements of the law or rule (45 CFR §164.512(a),
and for public health activities (45 CFR §164.512(b)). The amendment
corrects any discrepancies between the rule and the information the department
currently receives. The amended section will make no change in the information
a person is currently required to report to the department. The amendment
to the section will ensure that persons required to report will have continuing
authority to disclose PHI to the department after the implementation date
of the federal privacy standards.
Three comments were received during the comment period. All the comments
are from the Coalition for Nurses in Advanced Practice (CNAP). The comments
suggest using the term "health professionals" in those paragraphs that address
reporting. The "health professionals" language is a defined term in Health
and Safety Code, §84.002. Some health professionals, notably advanced
practice nurses and physician assistants may diagnose and treat patients with
occupational diseases. Especially among medically underserved populations,
these health professionals are frequently in separate locations from that
of a collaborating physician. Therefore it is appropriate to require all practitioners
who treat the patient to report the occupational conditions identified by
the department. These comments clarify and update the reporting requirements
section of this rule.
Comment: Concerning §99.1(b)(1), a commenter suggested to add "or
other health professional acting within the scope of the professional license,"
after "physician" and before "based upon."
Response: The department agrees and has corrected the wording in the section.
Comment: Concerning §99.1(c)(1), a commenter suggested to insert "or
health professional," after "physician" and before "holding".
Response: The department agrees and has corrected the wording in the section.
Comment: Concerning §99.1(c)(3), a commenter suggested to add "health
professional" in the first sentence after "physician" and before "or laboratory
director." The commenter also suggested to add "health professional" after
"physician" and before "or laboratory director" in the second sentence.
Response: The department agrees and has corrected the wording in the section.
This change more accurately reflects the wording of Health and Safety Code, §84.004,
which requires all health professionals to report.
The amendment is adopted under Health and Safety Code, §84.003
which allows the Board of Health (board) to adopt rules that require the reporting
of occupational diseases; and Health and Safety Code, §12.001, which
provides the board with the authority to adopt rules for the performance of
each duty imposed by law on the board, the department, and the commissioner.
§99.1.General Provisions.
(a)
Purpose. This section implements the Texas Occupational
Conditions Reporting Act, Health and Safety Code, Chapter 84, House Bill 2091,
69th Legislature, 1985, which authorizes the Texas Board of Health to adopt
rules concerning the reporting and control of occupational conditions.
(b)
Definitions. The following words and terms, when used in
these sections, shall have the following meanings unless the context clearly
indicates otherwise.
(1)
Case--A person in whom an occupational condition is diagnosed
by a physician or other health professional acting within the scope of the
professional license, based upon clinical evaluation, interpretation of laboratory
and/or roentgenographic findings, and an appropriate occupational history.
(2)
Commissioner--The commissioner of health.
(3)
Department--The Texas Department of Health, 1100 West 49th
Street, Austin, Texas 78756.
(4)
Local health authority--The chief administrative officer
of a public health district or a local health department, or the physician
who is to administer state and local laws relating to public health.
(5)
Occupational conditions--Those diseases, abnormal health
conditions or laboratory findings that are caused by or are related to exposures
in the workplace.
(6)
Reportable occupational condition--Any occupational disease,
condition or laboratory finding for which an official report is required.
See subsection (d) of this section.
(7)
Report of occupational condition--The notification to the
appropriate authority of the occurrence of a specific occupational disease
in a human, including all information required by the procedures established
by the Board of Health.
(8)
Suspected case--A case in which an occupational condition
is suspected, but the final diagnosis is not yet made.
(c)
Reporting requirements.
(1)
It is the duty of every physician or health professional
holding a license to practice in the State of Texas to report promptly to
the local health authority each patient she or he shall examine and who has
or is suspected of having any reportable occupational condition. The local
health authority may authorize a staff member to transmit reports.
(2)
It is the duty of every person who is in charge of a clinical
or hospital laboratory, blood bank, mobile unit, or other facility in which
a laboratory examination of any specimen derived from a human body yields
microscopical, cultural, serological, chemical, or other evidence suggestive
of a reportable condition to report promptly that information to the local
health authority.
(3)
The reporting physician, health professional, or laboratory
director shall make the report in writing. A local health authority may authorize
one or more employees under his or her supervision to receive the report from
the physician, health professional, or laboratory director by telephone; use
of this alternative, if authorized, is at the option of the reporter. The
local health authority shall implement a method of verifying the identity
of the telephone caller when that person is unfamiliar to the employee.
(4)
The local health authority shall collect the reports and
transmit the information at weekly intervals to the Environmental Epidemiology
and Toxicology Division, Bureau of Epidemiology, Texas Department of Health,
1100 West 49th Street, Austin, Texas 78756. Transmission may be made by mail,
courier, or electronic transfer.
(A)
If by mail or courier, the reports shall be placed in a
sealed envelope addressed to the attention of the Environmental Epidemiology
and Toxicology Division, Bureau of Epidemiology, Texas Department of Health,
1100 West 49th Street, Austin, Texas, 78756, and marked "Confidential Medical
Records."
(B)
If by electronic transmission, including facsimile transmission
by telephone, it shall be in a manner and form authorized by the commissioner
or his or her designee in each instance. Any electronic transmission of the
reports must provide at least the same degree of protection against unauthorized
disclosure as those of mail or courier transmission. The commissioner or his
or her designee shall, before authorizing such transmission, establish guidelines
for establishing and conducting such transmission.
(5)
When an occupational condition is reported to a local health
authority, and the person diagnosed as having the condition resides outside
his or her area of local health jurisdiction, the local health authority receiving
the report shall notify the appropriate local health authority where the person
or persons reside. The department shall assist the local health authority
in providing such notifications if requested.
(d)
Reportable conditions and information to be reported.
(1)
The reportable occupational conditions are: asbestosis,
silicosis, blood lead levels in persons 15 years of age or older, and acute
pesticide poisoning.
(2)
Reports for asbestosis and silicosis shall include all
information collected by the reporting person and required to complete the
most recent version of the department's Asbestosis and Silicosis Case Report
Form F09-11626.
(3)
Reports for blood lead levels in persons 15 years of age
and older shall include all information collected by the reporting person
and required to complete the most recent version of the department's Adult
Blood Lead Report Form F09-11624.
(4)
Reports for acute pesticide poisoning shall include all
information collected by the reporting person and required to complete the
most recent version of the department's Pesticide Poisoning Report Form F09-11625.
(e)
General control measures for reportable occupational conditions.
The commissioner or his or her duly authorized representative shall, as circumstances
may require, proceed as follows:
(1)
investigation shall be made for the purpose of verifying
the diagnosis, ascertaining the source of the causative agent, obtaining an
occupational and employment history and discovering unreported cases;
(2)
collection of specimens of the body tissues, fluids, or
discharges and of materials directly or indirectly associated with the case,
as may be necessary in confirmation of the diagnosis, and their submission
to a laboratory for examination;
(3)
obtaining samples of air or materials from the current
or former business or place of employment of a case, as may be necessary to
ascertain if a public health hazard exists. If a hazard is found the commissioner
or his/her designee shall make appropriate recommendations concerning the
hazard.
(f)
Confidential nature of case reporting.
(1)
All case reports received by the local health authority
or the Texas Department of Health are confidential records and not public
records. These records will be held in a secure location and accessed only
by authorized personnel.
(2)
The department may use information obtained from reports
or health records for statistical and epidemiological studies which may be
public information as long as an individual is not identifiable.
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 April 4, 2003.
TRD-200302216
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: April 24, 2003
Proposal publication date: January 31, 2003
For further information, please call: (512) 458-7236
The Texas Department of Health (department) adopts the repeal of §§128.1
- 128.10 and new §§128.1 - 128.15, concerning the regulation of
persons filling contact lens prescriptions without changes to the proposed
text as published in the December 6, 2002, issue of the
Texas Register
(27 TexReg 11401), and the sections will not be republished.
Government Code, §2001.039, requires that each state agency review
and consider for readoption each rule adopted by that agency pursuant to the
Government Code, Chapter 2001 (Administrative Procedure Act). The sections
have been reviewed and the department has determined that reasons for adopting
the sections continue to exist in that rules on this subject are needed; however
the need to reorganize and modify the existing sections warrants the repeal
and new sections.
Each section was edited and restructured to correct grammatical errors;
update legal citations; and delete repetitive, ambiguous, obsolete, unenforceable,
and unnecessary language. The new sections improve draftsmanship and make
the rules more accessible, understandable, and usable. Much of the adopted
language is former language; however, the sections were reorganized in a more
logical manner resulting in the language appearing as new in the adopted sections.
New §128.1 (relating to Introduction) explains the overall purpose
of the rules and identifies the topics covered in the rules.
A definition for business entity is included in new §128.2 (relating
to Definitions). The term was not formerly defined; however, the definition
is necessary to assist applicants in determining the amount of the annual
permit fee.
New §128.3 (relating to Fees) and §128.4 (relating to Petition
for Rulemaking) is language that was formerly included in another section.
New §128.3 is adopted for easy reference in determining applicable fees
required for obtaining and maintaining a contact lens permit. New §128.4
is adopted for a more logical placement of the information.
New §128.5 (relating to Sale or Delivery of Contact Lenses) is adopted
to clearly describe the requirements for the sale or delivery of contact lenses
in Texas.
New §128.6 (relating to Display of Permit) is language that was formerly
included in the rules, but in a different sequence.
New §128.7 (relating to Application Requirements and Procedures) is
adopted to clearly describe the application process; and to remove the obsolete
requirement for applicants to obtain letters from the Comptroller of Texas
attesting to compliance with the Tax Code, Chapter 171 (Franchise Tax).
New §128.8 (relating to Application Processing) is adopted to identify
the time periods and procedures for issuing a contact lens permit.
New §128.9 (relating to Renewal of Permit) is adopted to clearly set
out the permit renewal process and to include language relating to the suspension
of a permit for failure to comply with a court order providing for the possession
of or access to a child.
New §128.10 (relating to Changes of Name or Address) is adopted to
explain the process for changing the name or address of the permit holder.
New §128.11 (relating to Filing Complaints and Complaint Investigations)
is adopted to reflect the process for filing a complaint and conducting an
investigation of the complaint.
New §128.12 (relating to Disciplinary Actions) is adopted to reflect
the department's authority to deny an application, suspend or revoke a permit,
place a permit on probation, or impose administrative penalties.
New §128.13 (relating to Informal Disposition) and §128.14 explain
the process for informal settlement conferences and formal hearings.
The two commenters were the Texas Optometry Board and the Texas Optometric
Association, Inc. The commenters were neither for nor against the proposed
rules in their entirety; rather, they offered comments and questions regarding
specific points in the rules.
Comment: One commenter requested that additional language be added to the
end of §128.5(c), specifically "Any such request shall be dated and if
such request is made by facsimile or electronic method the facsimile or electronic
mail shall contain the actual time of transmittal." The commenter stated that
this would help provide documentary evidence to the Optometry Board or Medical
Board regarding whether or not a doctor has responded in a timely fashion
to an agent's request on behalf of a patient.
Response: The department disagrees. The additional language is not required
by either the Texas Optometry Act, Occupations Code Chapter 351 or the Contact
Lens Prescription Act, Occupations Code Chapter 353, nor is a corresponding
requirement related to prescription release included in the rules of the Texas
Optometry Board, 22 TAC §279.2 relating to contact lens prescriptions.
No change was made as a result of the comment.
Comment: The commenter requested that language allowing a physician or
optometrist to provide a prescription by telephone or other electronic means
to a contact lens dispenser be removed, or if it remains, that additional
requirements be included related to reducing the additional transmittal methods
to writing, requirements for ascertaining the authenticity of the prescription,
and requirements for maintaining the records and for return of the prescription
to the customer when not all the lenses have been dispensed, as well as more
specific language describing "other electronic means".
Response: The department disagrees. The proposed language tracks the language
of the Texas Optometry Act, which permits a physician or optometrist to authorize
the dispensing of lenses by these methods. The rules as proposed already require
that prescriptions be maintained and returned to the patient in accordance
with the Act. Any additional restrictions on methods of prescription release
necessary for a physician or optometrist should properly be addressed in the
rules of the appropriate licensing board. No change was made as a result of
the comment.
Comment: One commenter requested that language be included which requires
that "licensed dispensers be readily available to prescribing doctors should
the prescribing doctor have a question concerning the request for a prescription."
Response: The department disagrees. The proposed language would place additional
requirements on the contact lens dispenser not mandated by the Act, which
sets out clear guidelines related to the release of prescriptions to consumers
or their agents by physicians and optometrists. No change was made as a result
of the comment.
25 TAC §§128.1 - 128.10
The repeals are adopted under the Occupations Code, Chapter
353, 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.
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 April 4, 2003.
TRD-200302222
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: April 24, 2003
Proposal publication date: December 6, 2002
For further information, please call: (512) 458-7236
25 TAC §§128.1 - 128.15
The new sections are adopted under the Occupations Code, Chapter
353, 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.
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 April 4, 2003.
TRD-200302223
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: April 24, 2003
Proposal publication date: December 6, 2002
For further information, please call: (512) 458-7236
Subchapter E. DOG AND CAT STERILIZATION
25 TAC §169.101
The Texas Department of Health (department) adopts an amendment
to §169.101, concerning the Animal Friendly Advisory Committee (committee).
Section 169.101 is adopted without changes to the proposed text as published
in the January 31, 2003, issue of the
Texas Register
(28 TexReg 888). The section is amended to change the process for
filling vacancies in the offices of presiding officer and assistant presiding
officer; include additional requirements regarding statements by members;
and clarify the components that the committee must include in an annual report
to the commissioner.
Government Code, §2001.039, requires that each state agency conduct
a review of its rules every four years and consider for readoption each rule
adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative
Procedures Act). Section 169.101 has been reviewed and the department has
determined that reasons for adopting the section continue to exist in that
a rule on this subject is needed.
The department published a Notice of Intention to Review for §169.101
as required by Government Code, §2001.039 in the
Texas Register
on May 19, 2000 (25 TexReg 4598). The department received
no comments due to the publication of the notices.
No comments were received on the proposal during the comment period.
The amendment is adopted under Health and Safety Code, Chapter
828, "Dog and Cat Sterilization," §828.015, which provides the Texas
Board of Health (board) with the authority to appoint a committee to provide
advice on the dispensing of grant money in the animal friendly license plate
account to eligible organizations for the purpose of providing low-cost dog
and cat sterilization to the general public; and §12.001, which provides
the board with the authority to adopt rules for the performance of every duty
imposed by law on the board, the department and the commissioner of health.
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 April 4, 2003.
TRD-200302215
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: April 24, 2003
Proposal publication date: January 31, 2003
For further information, please call: (512) 458-7236
Subchapter B. MEAT AND POULTRY INSPECTION
25 TAC §221.12
The Texas Department of Health (department) adopts an amendment
to §221.12, concerning meat and poultry inspection. Section 221.12 is
being adopted without changes to the proposed text as published in the December
6, 2002, issue of the
Texas Register
(27 TexReg
11406) and, therefore, the section will not be republished. The amendment
to §221.12 increases the fee per hour for overtime inspection and special
services.
The Texas Meat and Poultry Inspection Act allows the department to collect
fees for overtime and special services provided to establishments and for
services required to be performed under this act relating to the inspection
of animals, birds, or products that are not regulated under the Federal Meat
Inspection Act or the Federal Poultry Products Inspection Act. The department
does not collect a fee for inspection services required under the Texas Meat
and Poultry Inspection Act, but not required under the federal acts. However,
the department does collect a fee for overtime and special services provided
to establishments. The current fee of $23 per hour is not sufficient to recover
the cost of providing the services, so the department is increasing the fee
to $29.50 per hour. The new fee is expected to cover the cost of providing
overtime inspection and special services to industry.
There were no comments received on the proposal during the 30-day comment
period.
The amendment is adopted under the Health and Safety Code, Chapter
433, which provides the department with the authority to adopt necessary regulations
pursuant to the enforcement of Chapter 433; and §12.001, which provides
the Texas Board of Health (board) with the authority to adopt rules for the
performance of every duty imposed by law on the board, the department, and
the commissioner of health.
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 April 4, 2003.
TRD-200302212
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: April 24, 2003
Proposal publication date: December 6, 2002
For further information, please call: (512) 458-7236
25 TAC §227.1
The Texas Department of Health (department) adopts new §227.1,
concerning minimum guidelines for human donor milk banks without changes to
the proposed text as published in the December 6, 2002, issue of the
House Bill 391, 77th Legislative Session, 2001, added new §161.071
to the Health and Safety Code, which requires the department to establish
minimum guidelines for the procurement, processing, distribution, or use of
human milk by donor milk banks. Specifically, the new section adopts by reference
the "Guidelines for the Establishment and Operation of a Donor Human Milk
Bank" written by the Human Milk Banking Association of North America.
There were no comments received regarding the proposed new section during
the comment period.
The new section is adopted under the Health and Safety Code, §161.071,
which provides the department with the authority to adopt necessary minimum
guidelines for the procurement, processing, distribution, or use of human
milk by donor milk banks; 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.
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 April 4, 2003.
TRD-200302219
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: April 24, 2003
Proposal publication date: December 6, 2002
For further information, please call: (512) 458-7236
The Texas Department of Health (department) adopts the repeal of §229.261,
and new §229.261, concerning the assessment of an administrative penalty
against food and drug operations. The repeal and new section are adopted without
changes to the proposed text as published in the December 6, 2002, issue of
the
Texas Register
(27 TexReg 11411) and,
therefore, the section will not be republished.
The new rule applies to the following programs within the Bureau of Food
and Drug Safety: food wholesaler and manufacturer, wholesale drug manufacturer
and distributor, device manufacturer and distributor, narcotic treatment program,
retail food establishment, tanning facility, tattoo studio, body piercing
studio, salvage establishment, and salvage broker.
The title of the subchapter, new rule, and the language have been changed
to more accurately reflect the fact that administrative penalties are assessed
by the department, but civil penalties are not. The definitions of the severity
levels have been clarified. In addition, examples of violations categorized
by severity level have been removed from the rule. Examples of violations
will be provided to the regulated community in a guidance document available
from the Bureau. Persons and entities that will be impacted by this rule include
the department staff, and licensed persons who are not in compliance with
the applicable regulations.
Health and Safety Code, Chapter 145, §145.0122, Chapter 146, §146.019,
Chapter 431, §431.054, Chapter 432, §432.021, Chapter 437, §437.018,
and Chapter 466, §466.043, authorize the department to assess an administrative
penalty against a person who violates these statutes. With these changes,
the new rule will be consistent with these chapters.
Government Code §2001.039, requires each state agency to review and
consider for adoption each rule adopted by that agency pursuant to Government
Code, Chapter 2001 (Administrative Procedure Act). The current rule has been
reviewed and the department has determined that reasons for adopting the section
continue to exist. However, because substantial changes have been made to
simplify this section, the current rule is being repealed and a new rule adopted.
The department published a Notice of Intention to Review for §229.261
in the
Texas Register
on February 25, 2000
(25 TexReg 1731). No comments were received as a result of the publication
of the notice.
There were no comments received regarding the proposed repeal and new section
during the comment period.
Subchapter P. ADMINISTRATIVE OR CIVIL PENALTIES
25 TAC §229.261
The repeal is adopted under the Health and Safety Code, Chapter
145, §145.011, Chapter 146, §146.015, Chapter 431, §431.241,
Chapter 432, §432.011, Chapter 437, §437.0056, and Chapter 466, §466.004,
which all require the department to adopt rules for the implementation and
efficient enforcement of Chapters 145, 146, 431, 432, 437, and 466; and the
Health and Safety Code, §12.001, which provides the Texas Board of Health
(board) with the authority to adopt rules for the performance of every duty
imposed by law on the board, the department, and the commissioner of health;
and implements Government Code, §2001.039.
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 April 4, 2003.
TRD-200302213
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: April 24, 2003
Proposal publication date: December 6, 2002
For further information, please call: (512) 458-7236
25 TAC §229.261
The new section is adopted under the Health and Safety Code,
Chapter 145, §145.011, Chapter 146, §146.015, Chapter 431, §431.241,
Chapter 432, §432.011, Chapter 437, §437.0056, and Chapter 466, §466.004,
which all require the department to adopt rules for the implementation and
efficient enforcement of Chapters 145, 146, 431, 432, 437, and 466; and the
Health and Safety Code, §12.001, which provides the Texas Board of Health
(board) with the authority to adopt rules for the performance of every duty
imposed by law on the board, the department, and the commissioner of health;
and implements Government Code, §2001.039.
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 April 4, 2003.
TRD-200302214
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: April 24, 2003
Proposal publication date: December 6, 2002
For further information, please call: (512) 458-7236
Chapter 404.
PROTECTION OF CLIENTS AND STAFF
Subchapter G. UNUSUAL INCIDENTS INVOLVING PERSONS SERVED BY TXMHMR FACILITIES
25 TAC §§404.241 - 404.249
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) adopts the repeals of §§404.241 - 404.249 of Chapter 404,
Subchapter G, concerning unusual incidents involving persons served in TXMHMR
facilities, without changes to the proposal as published in the November 29,
2002, issue of the
Texas Register
(27 TexReg
11043).
The reporting procedures contained in the subchapter have been incorporated
into internal policy and the reasons for initially adopting the rules no longer
exist.
The repeal of this subchapter fulfills the requirements of the Texas Government
Code, §2001.039, concerning the periodic review of agency rules.
No comments on the proposed repeals were received.
The repeals are adopted under the Texas Health and Safety Code, §532.015(a),
which provides the Texas Mental Health and Mental Retardation Board with broad
rulemaking authority.
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 April 3, 2003.
TRD-200302192
Rudy Arredondo
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: April 23, 2003
Proposal publication date: November 29, 2002
For further information, please call: (512) 206-4516
Subchapter A. FINANCIAL SERVICES
25 TAC §§407.1 - 407.6, 407.22 - 407.24
The Texas Department of Mental Health and Mental Retardation
(department) adopts the repeal of existing §§407.1 - 407.6 and §§407.22
- 407.24 of Chapter 407, concerning financial services without changes to
the proposal in the December 13, 2002, issue of the
Texas Register
(27 TexReg 11708). New Chapter 417, Subchapter A, concerning
substantially the same matters is contemporaneously adopted in this issue
of the
Texas Register
.
Sections 407.1 - 407.6 and §§407.22 - 407.24 of Chapter 407 primarily
describe the department's procedures for managing department and benefit funds
as well as the consumer trust fund. The adoption of the repeal of the existing
sections and the new sections is made according to the department's rule review
as required by the Texas Government Code, §2001.039.
Comments were not received from the public.
The repeal is adopted under the Texas Health and Safety Code, §532.015,
which provides the Texas Mental Health and Mental Retardation Board with broad
rulemaking authority.
The repeal affects the Texas Health and Safety Code, §551.001 and §§551.003
- 551.005.
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 April 7, 2003.
TRD-200302263
Rudy Arrendondo
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: April 27, 2003
Proposal publication date: December 13, 2002
For further information, please call: (512) 206-4516
25 TAC §407.120
The Texas Department of Mental Health and Mental Retardation
(department) adopts the repeal of existing §407.120 of Chapter 407, Subchapter
C, concerning lease of TDMHMR surplus property, without changes to the proposAL
in the December 13, 2002, issue of the
Texas Register
(27 TexReg 11709). New Chapter 417, Subchapter A, concerning substantially
the same matter is contemporaneously adopted in the this issue of the
Section 407.120 described the requirements associated with the long-term
lease of TDMHMR surplus property. The adoption of the repeal of the existing
section and new sections are made according to the department's rule review
plan that is required by Texas Government Code, §2001.039.
Comments from the public were not received.
The repeal is adopted under the Texas Health and Safety Code, §532.015,
which provides the Texas Mental Health and Mental Retardation Board with broad
rulemaking authority and Texas Government Code, §2001.039, which requires
the department to review its rules.
The repeal affects no statute, article, or code.
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 April 7, 2003.
TRD-200302264
Rudy Arrendondo
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: April 27, 2003
Proposal publication date: December 13, 2002
For further information, please call: (512) 206-4516
Subchapter C. CAPITAL IMPROVEMENTS BY CITIZEN GROUPS
25 TAC §§410.101 - 410.122
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) adopts the repeal of existing Chapter 410, Subchapter C, §§410.101
- 410.122, concerning capital improvements by citizens groups without changes
to the proposal as published in the December 6, 2002, issue of the
Texas Register
(27 TexReg 11448). The repealed sections are replaced
by new Chapter 417, Subchapter D, §§417.151 - 417.160, which contain
substantially the same matters, are contemporaneously adopted in this issue
of the
Texas Register
.
The repealed §§410.101 - 410.122 provided policies and procedures
for citizens and community groups to donate a capital improvement to a facility.
The adoption of the repeals and new rule fulfill the requirements of Texas
Government Code, §2001.039, concerning the periodic review of department
rules.
Comments were not received from the public.
The repeals are adopted under the Texas Health and Safety Code, §532.015(a),
which provides the Texas Mental Health and Mental Retardation Board with broad
rulemaking authority and Texas Government Code §2001.039, which requires
the department to review its rules.
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 April 7, 2003.
TRD-200302268
Rudy Arredondo
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: April 27, 2003
Proposal publication date: December 6, 2002
For further information, please call: (512) 206-4516
Subchapter A. CLIENT-IDENTIFYING INFORMATION
25 TAC §§414.1 - 414.17
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) adopts the repeals of §§414.1 - 414.17 of Chapter 414,
Subchapter A, concerning client-identifying information, without changes to
the proposal as published in the February 7, 2003, issue of the
Texas Register
(28 TexReg 1039). New §§414.1 - 414.8 of Chapter
414, Subchapter A, concerning protected health information, which replace
the repealed sections, are contemporaneously adopted in this issue of the
The repeals allow for the adoption of new sections governing the same matters.
No comments on the proposed repeals were received.
The repeals are adopted under the Texas Health and Safety Code, §532.015,
which provides the Texas Mental Health and Mental Retardation Board (board)
with broad rulemaking authority, and §533.009, which requires the board
to adopt rules governing the exchange of patient and client records without
the patient's or client's consent among department facilities, local mental
health or mental retardation authorities, community centers, other designated
providers, and subcontractees of mental health and mental retardation services.
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 April 3, 2003.
TRD-200302194
Rudy Arredondo
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: April 23, 2003
Proposal publication date: February 7, 2003
For further information, please call: (512) 206-4516
25 TAC §§414.1 - 414.8
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) adopts new §§414.1 - 414.8 of Chapter 414, Subchapter A,
concerning protected health information. Sections 414.4 - 414.7 are adopted
with changes to the proposed text as published in the February 7, 2003, issue
of the
Texas Register
(28 TexReg 1040). Sections
414.1 - 414.3, and §414.8 are adopted without changes. The repeals of
existing §§414.1 - 414.17 of Chapter 414, Subchapter A, concerning
client-identifying information, which the new sections replace, are contemporaneously
adopted in this issue of the
Texas Register
.
The new rules require facilities, local authorities, community centers,
and their respective contract providers to comply with all applicable federal
and state statutes, rules, and regulations governing privacy of protected
health information. The new rules list applicable federal and state statutes,
rules, and regulations. The new rules also require the Notice of Privacy Practice
of each facility, local authority, and community center to include information
regarding permitted disclosures under Texas Health and Safety Code, §533.009.
Additionally, the new rules require each facility, local authority, and community
center to include in its Notice of Privacy Practice a statement that identifies
it as a part of the TDMHMR service delivery system and a statement that individuals
may file a complaint with TDMHMR Consumer Services and Rights Protection/Ombudsman
Office by calling 1-800-252-8154 or writing to P.O. Box 12668, Austin, Texas
78711.
The new rules also reference TDMHMR's "Interpretive Guidance on Laws Pertaining
to Privacy of Mental Health and Mental Retardation Records for the TDMHMR
Service Delivery System," which is an interpretation of the applicable federal
and state statutes, rules, and regulations listed in the new rules. The new
rules require TDMHMR Central Office and all facilities to comply with the
interpretive guidance. Although the new rules do not require local authorities
and community centers to comply with the interpretive guidance, TDMHMR notes
that the document is the result of its analysis of the interaction of the
numerous state and federal laws that govern the privacy of health information,
including preemption of conflicting state laws. TDMHMR will be guided by the
document in assessing the compliance with applicable privacy laws by local
authorities and community centers.
Upon adoption, the title of Exhibit A that is referenced in §414.4(a)(2)
and §414.6 has been changed to "Interpretive Guidance on Laws Pertaining
to Privacy of Mental Health and Mental Retardation Records for the TDMHMR
Service Delivery System." Two state statutes have been added to §414.5
and §414.7. In §414.6, a toll free number has been added as a more
expedient manner of requesting a copy of Exhibit A as well as a web address
for accessing the exhibit via the Internet.
Changes made to Exhibit A between the subchapter's proposal and adoption
include adding the term "community center" to the definitions of "component"
and "contract provider" in §2 and throughout the document, as appropriate.
Language has been added to the definition of "MHMR services" to specifically
exclude any services for alcohol or drug abuse, substance abuse, or chemical
dependency. The requirement for components to document their designated record
sets has been moved from §15(e)(1) to a new subsection (b) in §4.
Language related to limiting incidental uses and disclosures has been revised
in §4 to be consistent with the federal privacy rule. Language has been
modified in §5(g) to clarify that §5(f) describes how a revised
notice is to be made available. Language has been added to §6(a)(2) to
ensure that determinations are individualized. Language has been modified
in §8(a) to clarify that facilities are not responsible for designating
a privacy
official
and that facilities' privacy
coordinators will work with the TDMHMR Central Office Privacy Official. Language
has also been added clarifying that the privacy official may be a current
member of the component's workforce who performs other types of duties.
Clarifying language has been added to §9(b)(3). The term "advising"
has been changed to "informing" in §9(e) and (f) and §10(d). Language
has been modified in §10(b) to be consistent with federal regulations.
Clarifying language has been added to §11(c)(9). The subsection related
to conditioning the provision of alcohol or drug abuse treatment on the individual
signing an authorization has been deleted in §11. Minor grammatical changes
have been made in §12(b)(2)(B)(i) and §13(b)(2)(A). Language has
been added to §15(a)(1) clarifying that an individual's LAR
who is acting on the individual's behalf
has a right of access to PHI
about the individual. Language has been added to §15(d)(1) stating that
an LAR is not entitled to access the individual's PHI that relates to alcohol
or drug abuse treatment unless the individual is incompetent (as defined).
The provision in proposed §15(d)(3)(ii) has been deleted. Clarifying
language has been added to §19(d). The sections relating to attachments
and references have been combined under §21 and references to the Texas
Health and Safety Code, §614.017, and Texas Government Code, §531.042,
have been added.
Minor clarifications have been made to Attachments AA, BB, CC, and DD.
Additionally, language has been added to Attachments BB and CC stating that
federal rules restrict any use of information about alcohol or drug abuse
treatment to criminally investigate or prosecute any alcohol or drug abuse
patient.
A public hearing was held on February 21, 2003. No oral or written testimony
was presented at the hearing. Written comments on the proposal were received
from Hilgers & Watkins, P.C., Austin; Heart of Texas Region MHMR Center,
Waco; Advocacy, Inc., Austin; MHMR Authority of Harris County, Houston; and
the Texas Council for Developmental Disabilities, Austin.
One commenter stated, "The most important and informative set of information
is in 'Exhibit A.' It cannot be assumed that the public has access to or understanding
of the information which is contained in Exhibit A, but that information is
vital if the public is to understand their rights and exercise them within
the Department's processes. As stated in previous conversations we believe
it is in the best interest of the public if Exhibit A is adopted by reference."
TDMHMR declines to adopt Exhibit A by reference because it would not provide
the public with greater access to the information. (Documents that are adopted
by reference are not published in the
Texas Register
.) TDMHMR notes that §414.6 provides information on how to obtain
a copy of the exhibit. Additionally, a toll free phone number has been added
to §414.6 as well as a statement that the exhibit is accessible via the
Internet at www.mhmr.state.tx.us/hipaa.html.
Regarding the definitions of "component" and "contract provider" in §2
of Exhibit A, one commenter asked whether community centers should be included.
TDMHMR responds by adding the term "community center" throughout Exhibit A,
as appropriate.
Regarding limiting incidental uses and disclosures of PHI in proposed §4(c)(1)(B)
of Exhibit A, one commenter recommended modifying the language to state that
a component must make a diligent effort to prevent incidental uses or disclosures.
TDMHMR responds that the provision originates in 45 CFR §164.530(c)(2)(ii).
Language related to limiting incidental uses and disclosures has been revised
in §4 to be consistent with the federal privacy rule.
Regarding mitigating harmful effects which are the result of a violation
of medical privacy laws in proposed §4(c)(3) of Exhibit A, one commenter
asked what process would facilities use to accomplish this requirement. TDMHMR
responds that any action taken by a facility would depend upon the circumstances
of the particular situation. TDMHMR notes that in the
Federal Register
(65 Fed. Reg. 82,748 (2000)), the United States Department
of Health and Human Services (HHS) responded to a similar comment by stating,
"The covered entity is expected to take reasonable steps based on knowledge
of where the information has been disclosed, how it might be used to cause
harm to the patient or another individual, and what steps can actually have
a mitigating effect in that specific situation."
Regarding consent to carry out treatment, payment, or health care operations
in adopted §4(f) of Exhibit A, one commenter asked "why permit the use
or disclosures when not necessary." The commenter stated that it would potentially
confuse an individual or LAR and place him/her in a situation in which due
process is not offered. TDMHMR responds that §4(f) is permissive; obtaining
consent to carry out treatment, payment, or health care operations is at the
discretion of each component. If a component determines that obtaining consent
would confuse individuals and LAR, then the component may choose to not obtain
consent. TDMHMR notes that the provision originates in 45 CFR §164.506(b).
Regarding making available to individuals a revised notice of privacy practices
in §5(g) of Exhibit A, one commenter stated that the subsection does
not articulate how a component should make the revised notice available to
consumers. TDMHMR responds that §5(f) describes how the notice is to
be made available. Clarifying language has been added in §5(g) to reflect
this.
Regarding the requirement to document an individual's receipt of the Notice
of Privacy Practices in §5(h) of Exhibit A, one commenter asked if her
component should add a signature line to Attachment CC. TDMHMR responds that
the commenter's component is responsible for deciding how to comply with the
documentation requirement. TDMHMR notes that state mental health facilities
have developed a separate form for documenting receipt of various information,
including the Notice of Privacy Practices. State mental retardation facilities
will use a separate form for acknowledgement of receipt of the notice.
Regarding use, disclosure, or request for an entire medical record in §6(a)(2)
of Exhibit A, one commenter expressed concern that the intent of the language,
which is to ensure individualized determinations are made, could be lost and
the process manipulated into a blanket policy to routinely request an entire
record in an effort to expedite requests for information. The commenter suggested
revised language to address the concern. TDMHMR responds by using the commenter's
suggested language.
Regarding complaints in §7 of Exhibit A, one commenter expressed concern
that the term "complaint" does not convey the serious nature of the charges
that an individual may be making with regard to misuse of his or her records.
The commenter suggested that the term "complaint" be replaced with "charges
of improper disclosure of PHI" in §7(a). The commenter also suggested
that the phrase "a process for individuals to make complaints concerning"
be replaced with "a process for individuals to file official complaints concerning."
The commenter also expressed concern that §7 provides no information
relating to penalties or remedies for having committed a violation of privacy
laws and recommended adding a description of the penalties and remedies to
ensure that both providers of services and individuals are aware of the serious
nature of these laws. TDMHMR responds that the term "complaint" originates
in the federal privacy rule, specifically, 45 CFR Part 160, Subpart C, §164.520(b)(1)(vi),
and §164.530(d). To be consistent with federal regulations, TDMHMR declines
to replace the term "complaint" as suggested by the commenter. TDMHMR notes
that penalties for violating the federal privacy regulations, which are described
in federal law (42 USC §1320d-6, 42 USC §290ee-3(f), and 42 USC §290dd-3(f)),
would be imposed by HHS and not TDMHMR or a component.
Regarding complaints in §7 of Exhibit A, one commenter asked if the
Office of Consumer Services and Rights Protection will maintain complaint
information, such as number and type, and make it available to the public
as it does for other risk indicators. TDMHMR responds that it will.
Regarding designation of a privacy official in §8(a) of Exhibit A,
one commenter suggested that the sentence state, "Each component must designate
a
staff who will function in the capacity of the
privacy official ..." TDMHMR declines to use the commenter's suggested
language because a component's privacy official does not have to be a staff
of the component. Language has been added clarifying that the privacy official
may be a current member of the component's workforce who performs other types
of duties.
Regarding disclosure of PHI without authorization to provide treatment
and ensure continuity of care in §9(a)(2)(A) of Exhibit A, one commenter
asked if such continuity of care applied to special needs offenders. The commenter
also asked if chemical dependency treatment information is protected under
the section. TDMHMR responds that the continuity of care referenced in §9(a)(2)(A)
applies to all individuals served by components. As it relates to special
needs offenders, the provision does not allow components to disclose a special
needs offender's PHI to any entity or person other than a component. TDMHMR
notes protection of PHI that relates to alcohol and drug abuse treatment is
addressed in §10.
One commenter asked if TDMHMR takes the position that substance abuse information
can be released to coroners and medical examiners. The commenter referenced §9(d)(6)
of Exhibit A. TDMHMR responds that it does not take the position that substance
abuse information can be released to coroners and medical examiners. Section
9(d)(6) referenced by the commenter governs psychotherapy notes under MHMR
services. Section 10 governs when authorization is not required to disclose
PHI that relates to alcohol or drug abuse treatment.
Regarding §9(f) of Exhibit A, one commenter expressed grave concerns
that a professional could disclose PHI about an individual receiving mental
retardation services without authorization when informing the individual's
parent, guardian, relative, or friend of the individual's current physical
condition. The commenter stated that the provision seems contrary to the intent
of privacy laws and suggested that more restrictive parameters be delineated
for releasing information regarding current physical and mental conditions
to unauthorized individuals. TDMHMR responds that both state law (Texas Health
and Safety Code, §595.010) and federal law (45 CFR §164.510(b))
authorizes such disclosures.
Regarding §11(c)(9) of Exhibit A, one commenter stated that the wording
was confusing and incomprehensible. TDMHMR responds by adding clarifying language.
Regarding conditioning alcohol or drug abuse treatment on an individual's
signing an authorization in §11(i) of Exhibit A, one commenter asked
why the provision exists since MHMR services are not conditioned upon signing
an authorization. The commenter stated that it is the position of Advocacy,
Inc., that no treatment should be conditioned upon signing an authorization
for disclosure and that such a provision is, at best, questionable clinical
practice. TDMHMR responds by deleting §11(i). TDMHMR notes that for minors
16 and 17 years of age, 42 CFR §2.14(b) allows conditioning alcohol or
drug abuse treatment on the minor individual's signing an authorization for
disclosure of PHI that is necessary for the provider to obtain payment for
the alcohol or drug abuse treatment.
Regarding a component administrator authorizing disclosure of PHI related
to alcohol or drug abuse treatment in §13(a)(2) of Exhibit A, one commenter
recommended adding a statement that directs component administrators to exercise
reasonable efforts to obtain authorization for disclosure of PHI from individuals
who experience episodic times during which they are unable to authorize disclosure.
TDMHMR declines to add the commenter's suggested requirement because it is
unnecessary considering the very limited situation being described (i.e.,
the adult suffers from a
medical condition
,
the authorization is for the
sole purpose of obtaining
payment
for
alcohol or drug abuse treatment
from a third-party payor). TDMHMR notes that the provision originates
in 42 CFR §2.15(a)(2).
Regarding who may authorize the use or disclosure of PHI of a minor 15
years of age or younger who is receiving inpatient alcohol or drug abuse treatment
in §13(b)(2)(A) of Exhibit A, one commenter expressed surprise that both
the minor and the minor's LAR must authorize a use or disclosure of PHI and
asked if the provision was written accurately. The commenter asked if there
was a minimum age or whether the provision applied to a minor who is five
years old. Two commenters asked what would happen if the minor and the minor's
LAR disagreed. One of the commenters asked if either would be offered due
process if such a disagreement occurs. TDMHMR responds that the provision
is written accurately. Pursuant to 42 CFR §2.14, the determination of
who may authorize use or disclosure is based on whether or not state law requires
parental consent to the minor's treatment for inpatient alcohol or drug abuse
treatment. Texas law (Health and Safety Code, §462.022(a)(3)(A)) requires
the consent of a parent, managing conservator, or guardian of a minor who
is 15 years of age or younger. Section 2.14(c)(1) of 42 CFR states, "Where
State law requires consent of a parent, guardian, or other person for a minor
to obtain alcohol or drug abuse treatment, any written consent for disclosure
authorized under subpart C of these regulations must be given by both the
minor and his or her parent, guardian, or other person authorized under State
law to act in the minor's behalf." TDMHMR notes that no minimum age is prescribed
by state or federal law. Regarding disagreement between the minor and the
LAR, TDMHMR's interpretation is that both the minor and the LAR must agree
or the disclosure cannot be made. Regarding the offer of due process if a
disagreement occurs, TDMHMR responds that the disagreement is between the
minor and LAR and does not involve the component; therefore, there is no basis
for due process.
Regarding §15(c)(4) and §17(b)(3) of Exhibit A, one commenter
noted that facilities were given specific maximum charge amounts for providing
copies and accountings and asked if the maximum charges were appropriate for
community centers as well. TDMHMR responds that each component, including
facilities, is responsible for determining whether it will impose a fee. If
a component decides to impose a fee, then the component (except a facility)
is also responsible for determining the fee amount, which must be reasonable
and cost-based. If a facility decides to impose a fee, then the facility's
fee may not exceed the charges described in the boxes under §16(c)(4)
and §17(b)(3) in Exhibit A. TDMHMR notes that the maximum per page charges
for facilities described in Exhibit A are those established by the Texas Department
of Health (see www.tdh.state.tx.us/hfc/feeinfo.htm). TDMHMR also notes the
federal privacy rule (specifically, 45 CFR §164.524(c)(4)) identifies
the elements that are permitted to be included in a fee for copies.
Regarding facilities' maximum charges for copies and accountings in §15(c)(4)
and §17(b)(3) of Exhibit A, one commenter stated that the charges are
unreasonable because many individuals accessing the services through components
are living at or close to the poverty level. TDMHMR responds that the maximum
per page charges for facilities described in Exhibit A are those promulgated
by the Texas Department of Health at www.tdh.state.tx.us/hfc/feeinfo.htm,
which states "In accordance with §241.154(e) of the Health and Safety
Code, the fee for providing a patient's health care information has been adjusted
1.3% to reflect the most recent changes to the consumer price index as published
by the Bureau of Labor Statistics (BLS) of the United States Department of
Labor. The BLS measures the average changes in prices of goods and services
purchased by urban wage earners and clerical workers." TDMHMR notes that facilities
are not required to impose a fee, nor are they required to impose the maximum
fee.
Regarding denying a request for amendment in §16(b)(3) of Exhibit
A, one commenter expressed concern that components would be able to make a
sole determination as to the accuracy and completeness of the PHI. The commenter
stated that since the amendment of PHI as offered by the individual does not
supplant the original information, the individual should be given the right
to add his or her comment to the record. TDMHMR declines to revise the provision
because it originates in 45 CFR §164.526(a)(2)(iv). TDMHMR notes that
under 45 CFR §164.526(d)(2) and §16(e)(2) of Exhibit A, the individual
is permitted to submit a statement of disagreement regarding the denial of
an amendment, which will be kept in the individual's record.
Regarding §16(c)(2)(A) and (B) and §17(b)(2) of Exhibit A, one
commenter stated that the 60-day and 30-day time frames are unreasonably lengthy.
The commenter noted that "in most cases, a component should be able be able
to respond to requests within 30 days, allowing for 60 days on rare occasions."
TDMHMR responds that the time frames originate in 45 CFR §164.526(b)(2)
and §164.528(c)(1) and represent the
maximum
time
allowed. TDMHMR agrees with the commenter that, in most cases,
a component should be able be able to respond to requests within 30 days.
Regarding confidential communications in §19(d) of Exhibit A, one
commenter suggested the language be changed to state, "A component
shall
not require an explanation from the individual as to the basis
for the request as a condition of providing confidential communications."
The commenter also suggested adding a new subsection (e) to state, "An individual
shall not be required to explain why a request for confidential communications
of PHI is being made." TDMHMR has revised the language to address the commenter's
concern.
Regarding a business associate agreement being unnecessary if disclosure
of an individual's PHI by the component to a business associate concerns the
treatment of the individual in §20(a)(1) of Exhibit A, one commenter
stated that business associates do not provide treatment. TDMHMR responds
that the definition of "business associate" in 45 CFR §160.103 and §3(4)(A)
of Exhibit A includes a person, other than a member of the component's workforce,
who, on behalf of the component, performs or assists in the performance of
"any other function or activity regulated by the Federal Privacy Rule." Therefore,
a treatment provider who is not component employee or a member of its workforce
could be a business associate.
Regarding business associate agreements in §20(c) of Exhibit A, one
commenter stated that a conscious violation, a pattern or practice of violations
of misuse of PHI, is a serious matter and should call for an immediate report
to the Secretary of the United States Department of Heath and Human Services.
The commenter recommended strengthening the provision in (c) by including
the penalties that may be applied when the privacy laws are violated. TDMHMR
declines to add penalties as recommended by the commenter because the only
action a component may take against a business associate who violates the
terms of the agreement are those described in §20(c)(1) and (2) and any
others as described in the agreement itself. TDMHMR notes that penalties for
violating the federal privacy regulations, which are described in federal
law (42 USC §1320d-6, 42 USC §290ee-3(f), and 42 USC §290dd-3(f)),
would be imposed by HHS and not TDMHMR or a component.
Regarding the Notice of Privacy Practices in Attachments BB and CC of Exhibit
A, one commenter questioned why the component did not have to send out copies
of the notice each time the component changed the notice's content. The commenter
stated that some individuals may not have access to the Internet or be present
at the facilities at which the new notice is posted. The commenter suggested
that individuals be sent the revised notice. TDMHMR responds that the provision
originates in 45 CFR §164.520(c)(2)(iv). TDMHMR declines to add the requirement
as suggested by the commenter because it would be unreasonably burdensome
and is not required by state or federal law. Further, only a small percentage
of individuals would not have access to the Internet or would not go to a
component's premises where they could obtain a revised notice or view a posted
revised notice.
Regarding the fourth bullet on the first page of the Notice of Privacy
Practices in Attachments BB and CC of Exhibit A, one commenter suggested that
individuals be given a point of contact to report any suspected violations
of the privacy laws. TDMHMR responds that the fourth page of the attachments
lists several points of contact with whom individuals may file a complaint
or get further information.
Regarding the first bullet in the section titled "Your Privacy Rights at
..." on the second page of the Notice of Privacy Practices in Attachments
BB and CC of Exhibit A, one commenter suggested that some explanation of reasons
be given regarding the statement "There are some reasons why we will not let
you see or get a copy of your health information..." TDMHMR responds that
the reasons for denying an individual assess to his or her health information
are described in §15(d)(1) and (d)(2) of Exhibit A. TDMHMR notes that
the notice states "if we deny your request [for access] we will tell you why."
Additionally, on the last page of the notice, individuals are invited to contact
the TDMHMR Privacy Officer for more information regarding the notice.
Regarding the third bullet in the section titled "Your Privacy Rights at
..." on the second page of the Notice of Privacy Practices in Attachments
BB and CC of Exhibit A, one commenter stated that it would be helpful to know
what would be included on the list instead of what would not be included.
TDMHMR responds that the first part of the sentence states what will be included
in the list (i.e., the disclosures of your health information that the component
made to other people in the last six years). The list will include all disclosures
except those described in the second sentence of the bullet.
Regarding the fourth bullet in the section titled "Your Privacy Rights
at ..." on the second page of the Notice of Privacy Practices in Attachments
BB and CC of Exhibit A, one commenter suggested adding language to state that
the component will make a good faith effort to abide by an individual's request
to restrict the way health information is used to the extent allowed by law.
TDMHMR declines to add language as suggested by the commenter because it is
possible that a component would not be able to "make a good faith effort to
abide by" every request for restriction.
Regarding the introductory sentence on the third page of the Notice of
Privacy Practices in Attachments BB and CC of Exhibit A, one commenter suggested
that an assurance be given to individuals that, although their permission
is not required, they will receive notification of the disclosure of health
information. TDMHMR declines to add requirements for such assurance and notification
as suggested by the commenter because it would be unreasonably burdensome
and is not required by state or federal law. TDMHMR notes that individuals
may request an accounting of disclosures if they so desire.
Regarding the fourteenth bullet on the third page of the Notice of Privacy
Practices in Attachments BB and CC of Exhibit A, a commenter again expressed
concern that PHI about an individual receiving mental retardation services
could be disclosed without authorization when informing the individual's parent,
guardian, relative, or friend of the individual's current physical condition.
The commenter stated that the provision seems contrary to the intent of privacy
laws and suggested that more restrictive parameters be delineated for releasing
information regarding current physical and mental conditions to unauthorized
individuals. TDMHMR responds that both state law (Texas Health and Safety
Code, §595.010) and federal law (45 CFR §164.510(b)) authorizes
such disclosures. TDMHMR notes that federal law (45 CFR §164.514(h))
and §4(e)(1) of Exhibit A requires a component to verify the identity
of a person requesting health information.
Regarding the bolded sentence under "Payment" in the section titled "Treatment,
Payment, and Health Care Operations" on the second page of the Notice of Privacy
Practices in Attachment CC of Exhibit A, one commenter stated that the term
"matching programs" should be defined, in order to make the statement clear
to the average individual. TDMHMR responds that this sentence is included
pursuant to 5 USC §552a(o)(1)(D), which requires an entity administering
federal benefit programs to provide individualized notice to applicants and
recipients of financial assistance under such programs that any information
provided by them may be subject to verification through matching programs.
TDMHMR declines to add a definition of "matching program" because the definition,
which is contained in 5 USC §552a(a)(8), is extremely lengthy and complex
and would not provide clarification. TDMHMR notes that on the last page of
the notice, individuals are invited to contact the TDMHMR Privacy Officer
for more information regarding the notice.
Regarding the notation on Attachment DD of Exhibit A relating to the form's
appropriateness as the consent required by 42 CFR §2.31, one commenter
asked "under 42 CFR, Part 2 is it not stated, 'This information has been ...
and cannot be used to prosecute ...'?" The commenter stated that "it would
seem appropriate to continue the use of that phrase on" Attachment DD of Exhibit
A. The commenter also stated that "the federal law prohibits the use of a
'general release' for chemical dependency treatment." TDMHMR responds that,
instead of including the information in Attachment DD, it has added language
to the Notice of Privacy Practices in Attachments BB and CC stating that federal
rules restrict any use of information about alcohol or drug abuse treatment
to criminally investigate or prosecute any alcohol or drug abuse patient.
TDMHMR notes that 42 CFR §2.32 and §14 of Exhibit A require a notice
to accompany all disclosures of PHI that relate to alcohol or drug abuse treatment,
and the notice states that 42 CFR Part 2 restricts any use of the disclosed
PHI to criminally investigate or prosecute any alcohol or drug abuse patient.
Additionally, Attachment DD should not be considered a "general release" because
it requires a description of the specific types of information, including
time period covered, to be disclosed, used, or received.
Regarding the "Note" portion of Attachment DD of Exhibit A, a commenter
expressed concern about the clarity of the language, especially the term "re-disclosure."
The commenter suggested replacing the phrase "the information disclosed pursuant
to this authorization may not be protected by medical privacy laws and may
be subject to re-disclosure by the recipient" be changed to state, "by signing
this form your medical information may not be protected by medical privacy
laws. The organization or facility that you are authorizing to receive your
medical information may disclose that information to other entities." TDMHMR
responds by adding clarifying language to address the commenter's issue.
One commenter asked whether the 42 CFR Part 2 protections apply to an individual
with chemical dependency issues documented in his or her records if the individual
is not receiving, and has never received, treatment for the dependency and
the component does not provide chemical dependency services. TDMHMR responds
that the situation referenced by the commenter is not addressed in federal
or state law and suggests the commenter consult legal counsel for advice regarding
compliance with applicable laws, rules, and regulations.
One commenter asked how the proposed rules impact the Texas Council for
Offenders with Mental Impairments (TCOMI). TDMHMR responds that the rules
do not apply to TCOMI and should have no impact on it except to the extent
that a component's compliance with these rules affects how TCOMI receives,
uses, or discloses PHI. TDMHMR notes that facilities, local authorities, and
community centers currently may exchange PHI and other information relating
to a special needs offender as permitted by §614.017 of the Texas Health
and Safety Code, which is part of TCOMI's enabling legislation. However, the
federal privacy rule preempts this state statute; therefore, the practice
must cease on April 14, 2003, when the federal privacy rule becomes effective.
TDMHMR also notes that a bill (Senate Bill 519) has been introduced in the
78th Texas Legislative Session which would
require
the exchange of certain information among the entities and persons
described in §614.017(c)(1) of the Texas Health and Safety Code, rather
than
permit
the exchange, which would allow
components to continue to exchange information under §614.017. If Senate
Bill 519 is passed, TDMHMR will amend Exhibit A to include the exchange of
information for special needs offenders.
One commenter asked if it is a violation of privacy to use envelopes with
the component's return address when mailing notices and reminders to individuals.
The commenter noted that no one would know from the envelope that the individual
was receiving MHMR services, unless the envelope identified the addressee
as a "consumer." TDMHMR responds that the situation referenced by the commenter
is not specifically addressed in federal or state law and suggests the commenter
consult legal counsel for advice regarding compliance with applicable laws,
rules, and regulations.
The new sections are adopted under the Texas Health and Safety
Code, §532.015, which provides the Texas Mental Health and Mental Retardation
Board (board) with broad rulemaking authority, and §533.009, which requires
the board to adopt rules governing the exchange of patient and client records
without the patient's or client's consent among department facilities, local
mental health or mental retardation authorities, community centers, other
designated providers, and subcontractees of mental health and mental retardation
services.
§414.4.Requirements.
(a)
TDMHMR Central Office and each facility, local authority,
and community center shall comply with all applicable federal and state statutes,
rules and regulations pertaining to privacy of protected health information
(PHI) including, but not limited to, the federal and state statutes, rules
and regulations described in §414.5 of this title (relating to Regulations
and Statutes Governing Confidentiality of Protected Health Information).
(1)
As set forth in 45 CFR Part 160 Subpart B, where a provision
of 45 CFR Part 160 or 164 is contrary to a provision of state law, the federal
regulation preempts the state law unless the provision of state law:
(A)
is more stringent (as defined) than the provision of the
federal regulation;
(B)
provides for the reporting of disease or injury, child
abuse, birth, or death, or for the conduct of public health surveillance,
investigation, or intervention; or
(C)
requires a health plan to report, or to provide access
to, information for the purpose of management audits, financial audits, program
monitoring and evaluation, or the licensure or certification of providers
or persons.
(2)
TDMHMR's "Interpretive Guidance on Laws Pertaining to Privacy
of Mental Health and Mental Retardation Records for the TDMHMR Service Delivery
System," referenced as Exhibit A in §414.6 of this title (relating to
Exhibits), provides an interpretation of the applicable federal and state
statutes, rules and regulations described in §414.5 of this title, applying
the preemption provisions described in paragraph (1) of this subsection. TDMHMR
Central Office and all facilities must comply with the "Interpretive Guidance
on Laws Pertaining to Privacy of Mental Health and Mental Retardation Records
for the TDMHMR Service Delivery System."
(b)
Information to be included in Notice of Privacy Practice.
(1)
Each facility, local authority, and community center shall
include in its Notice of Privacy Practice a statement that disclosures may
be made between facilities, local authorities, community centers, their respective
contract providers, and TDMHMR Central Office for the purpose of treatment,
payment, or health care operations without the individual's consent as permitted
by Texas Health and Safety Code, §533.009.
(2)
TDMHMR Central Office and each facility, local authority,
and community center shall include in its Notice of Privacy Practice a statement:
(A)
that identifies it as a part of the TDMHMR service delivery
system; and
(B)
that individuals may file a complaint with TDMHMR Consumer
Services and Rights Protection/Ombudsman Office by calling 1-800-252-8154
or writing to P.O. Box 12668, Austin, TX 78711.
(c)
Each facility, local authority, and community center is
responsible for ensuring that contracts with its contract providers require
compliance with subsection (a) of this section.
§414.5.Regulations and Statutes Governing Confidentiality of Protected Health Information.
(a)
Federal regulations. The following federal regulations
pertain to privacy of protected health information (PHI):
(1)
Code of Federal Regulations, Title 45, Parts 160 and 164,
Federal Standards for Privacy of Individually Identifiable Health Information
(i.e., Federal Privacy Rule), promulgated by the Secretary of the United States
Department of Health and Human Services;
(2)
Code of Federal Regulations, Title 42, Part 2, Confidentiality
of Alcohol and Drug Abuse Patient Records, promulgated by the Secretary of
the United States Department of Health and Human Services;
(3)
Code of Federal Regulations, Title 34, Part 99, governing
the disclosure of educational records of school-age children, promulgated
by the Secretary of the United States Department of Education; and
(4)
Code of Federal Regulations, Title 42, Part 51, Subpart
D, and Code of Federal Regulations, Title 45, §1386.22, governing access
to PHI by advocates for individuals with mental illness and mental retardation,
promulgated by the Secretary of the United States Department of Health and
Human Services.
(b)
Federal statutes.
(1)
The Health Insurance Portability and Accountability Act
(HIPAA), 42 USC §1320d
et seq.
, provides
the statutory authority for the United States Department of Health and Human
Services to promulgate the Federal Privacy Rule.
(2)
42 USC §10805(a)(4) (Protection and Advocacy for Mentally
Ill Individuals) and 42 USC §15043(a)(2)(I) (Protection and Advocacy
of Individual Rights) provide the authority for access of PHI by Advocacy,
Inc.
(3)
42 USC §290dd-2 provides the statutory authority to
promulgate the federal regulations on confidentiality of alcohol and drug
abuse patient records, referenced in subsection (a)(2) of this section.
(c)
State statutes.
(1)
Texas Health and Safety Code, Chapter 181, governing uses
and disclosures of PHI in the State of Texas, applies portions of 45 CFR Parts
160 and 164 (Federal Privacy Rule) to most entities and persons not covered
by HIPAA.
(2)
Texas Open Records Act, Texas Government Code, Chapter
552, provides that all information collected, assembled, or maintained in
any form by governmental bodies, and agencies operating in part or whole with
state funds, in connection with the transaction of official business is public
information; however, the act does set out certain exceptions. One such exception
is information deemed confidential by law, such as PHI.
(3)
Texas Health and Safety Code, §576.005 and Chapter
611, govern the confidentiality of PHI that relates to MHMR services.
(4)
Texas Health and Safety Code, Chapter 81, Subchapter F,
governs the confidentiality of information related to HIV/AIDS test results.
(5)
The provisions for disclosure of PHI that relates to mental
retardation services are contained in the Persons with Mental Retardation
Act, Texas Health and Safety Code, Chapter 595. The provisions described in §576.005
and Chapters 595 and 611 of Texas Health and Safety Code should be interpreted
together in reaching a determination regarding the use or disclosure of PHI
that relates to mental retardation services.
(6)
Texas Human Resources Code, Chapter 48, establishes authority
for the Texas Department of Protective and Regulatory Services (TDPRS) to
have access to PHI necessary to conduct investigations into allegations of
abuse, neglect, and exploitation of individuals.
(7)
Texas Medical Practice Act, Texas Occupations Code, Chapter
159, governs physician-patient communication.
(8)
Texas Health and Safety Code, §533.009, governs the
exchange of PHI between facilities, local authorities, community centers,
and their respective contract providers.
(9)
Texas Health and Safety Code, §595.005(c), governs
the disclosure of educational records of individuals receiving mental retardation
services.
(10)
Texas Government Code, Chapter 559, provides that persons
have a right to be informed about information that a state governmental body
collects about them, and to have incorrect information that is possessed about
them by a state governmental body corrected.
(11)
Texas Family Code, Chapter 32, governs consent to treatment
of a child by a non-parent or the child.
(12)
Texas Health and Safety Code, Chapter 241, Subchapter
G, governs the disclosure of PHI in hospitals licensed under the chapter.
(13)
Texas Health and Safety Code, §614.017, governs the
exchange of information relating to a special needs offender.
(14)
Texas Government Code, §531.042, requires information
regarding care and support options be given to at least one family member
of a patient or client, if possible.
§414.6.Exhibit.
This subchapter references Exhibit A--"Interpretive Guidance on Laws
Pertaining to Privacy of Mental Health and Mental Retardation Records for
the TDMHMR Service Delivery System," copies of which are available by contacting
TDMHMR, Policy Development, P.O. Box 12668, Austin, TX 78711-2668, or by calling
toll free at 1-888-404-1511, extension 4516. The exhibit is also accessible
via the Internet at www.mhmr.state.tx.us/hipaa.html.
§414.7.References.
Reference is made to the following state and federal statutes, rules,
and regulations:
(1)
45 CFR Parts 160 and 164, and §1386.22;
(2)
42 CFR Part 2 and Part 51, Subpart D;
(3)
34 CFR Part 99;
(4)
42 USC §290dd-2, §1320d
et seq.
, §10805(a)(4), and §15043(a)(2)(I);
(5)
Texas Health and Safety Code:
(A)
Chapter 81, Subchapter F;
(B)
Chapter 241, Subchapter G;
(C)
Chapter 534, Subchapter A;
(D)
Chapters 181; 595; and 611; and
(E)
§§533.009, 533.035(a), 576.005, 595.005(c), and
614.017;
(6)
Texas Government Code, Chapters 552 and 559, and §531.042;
(7)
Texas Human Resources Code, Chapter 48;
(8)
Texas Occupations Code, Chapter 159; and
(9)
Texas Family Code, Chapter 32.
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 April 3, 2003.
TRD-200302195
Rudy Arredondo
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: April 23, 2003
Proposal publication date: February 7, 2003
For further information, please call: (512) 206-4516
Subchapter A. STANDARD OPERATING PROCEDURES
25 TAC §§417.2, 417.4, 417.49
The Texas Department of Mental Health and Mental Retardation
(department) adopts the repeals of existing §§417.2, 417.4, and
417.49 of Chapter 417, Subchapter A, concerning standard operating procedures
are adopted without changes to the proposal in the December 13, 2002, issue
of the
Texas Register
(27 TexReg 11709). New
Chapter 417, Subchapter A, concerning substantially the same matters is contemporaneously
adopted in this issue of the
Texas Register
.
Sections 417.2, 417.4, and 417.49, describe the subchapter's application,
definitions and references, to which minor revisions were necessary when the
new sections regarding department procedures for reporting unauthorized departure,
managing department and benefit funds, and the protecting the personal property
of consumers and staff. The adoption of the repeal of the existing sections
and adoption of the new sections are made according to the department's rule
review plan as required by the Texas Government Code, §2001.039.
Comments were not received from the public.
The repeal is adopted under the Texas Health and Safety Code, §532.015,
which provides the Texas Mental Health and Mental Retardation Board with broad
rulemaking authority.
The repeal affect Texas Government Code, §2001.039.
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 April 7, 2003.
TRD-200302265
Rudy Arredondo
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: April 27, 2003
Proposal publication date: December 13, 2002
For further information, please call: (512) 206-4516
25 TAC §§417.2, 417.4, 417.20, 417.23, 417.27 - 417.29, 417.33, 417.34, 417.38 - 417.46, 417.49
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) adopts new §§417.2, 417.4, 417.23, 417.27 - 417.29, 417.33,
417.34, 417.38 - 417.46 of Chapter 417, Subchapter A, concerning standard
operating procedures with changes to the language proposed in the December
13, 2002, issue of the
Texas Register
(27
TexReg 11710). Section 417.20 and §417.49 are adopted without changes
and the text will not be republished. Existing §§407.1 - 407.6 and §§407.22
- 407.24 of Chapter 407, Subchapter A, concerning financial services; §407.120
of Chapter 407, Subchapter C, concerning lease of department property; and §§417.2,
417.4, and 417.49, concerning application, definitions, and references of
Chapter 417, Subchapter A, which the new sections would replace, are contemporaneously
repealed in this issue of the
Texas Register
.
The adoption of new sections and repeals of existing sections are made
according to the department's rule review plan required by Texas Government
Code, §2001.039, and includes new sections regarding the procedures for
long-term lease of department property, ensuring the safety of individuals'
personal property and funds, managing department and benefit funds, and reporting
unauthorized departures. The application section clarifies that the sections
regarding personal funds apply only to state mental health facilities while
the remaining sections apply to all state mental health and mental retardation
facilities. The definitions section has been revised to include terms that
are used in the new sections concerning lease of department property, personal
funds, managing department and benefit funds, and unauthorized departures.
Throughout the subchapter minor grammatical changes were made, clarifying
language was added, and unnecessary language was deleted (i.e., the term "facility
staff" was replaced by the term "staff."
In §417.2, Application, the section numbers are revised consistent
with the section numbers that apply only to State Mental Health Facilities
(i.e., §§417.39 - 417.46). Section 417.47, Audit, was deleted as
Chapter 411, Subchapter F, concerning internal audit provides the department's
audit staff with the authority to conduct audits and investigations at State
Mental Health and Mental Retardation Facilities.
A definition for the acronym "CEO" (i.e., chief executive officer) was
added. Language was added to the term "facility" to clarify that a facility
can be either a SMHF or a SMRF to reduce confusion about the applicability
of §§417.39 - 417.46, concerning trust funds that apply only to
State Mental Health Facilities definitions for the acronyms "SMHF" (i.e.,
State Mental Health Facilities) and "SMRF" (i.e., State Mental Retardation
Facilities) to provide further clarification about the application of the
subchapter. The definitions section was renumbered as a result of the acronyms
and clarifying language that were added.
In §417.28, the minimum trust fund amount that may be transferred
to the Central Office investment program has been changed from multiples of
$5,000 to multiples of $2,500 because at many facilities consumer's trust
fund balances did exceed the minimum investment of $5,000.
In §417.29, Benefit Funds: Use and Control, titles were added to subsections
(a) - (h) to make the section easier to read.
Throughout §§417.39 - 417.46 the terms "facility" and "CEO" were
replaced with the term "SMHF" to clarify that the sections apply only to SMHFs.
However, in §417.44(2)(A) - (B) the term facility was retained as an
individual may be transferred to a SMRF rather than another SMHF.
A new subsection (a) was added in §417.39 to reference the rules concerning
the management of trust funds for persons who are receiving services from
ICF/MR Program providers, including SMRFs. As a result of the addition, the
remaining subsections were renumbered. In subsection (b) of the same section,
the reference to the sections that apply only to SMHFs was revised consistent
with the elimination of §417.47, Audit.
Unnecessary language was deleted from §417.41(b)(4) because it was
repeated in subsection (c) of the same section.
Comments were received from the Evelyn Cherry, Garland, Texas and the Parent
Association for the Retarded of Texas (PART), Austin, Texas.
The commenter indicated that fiscal note language regarding possible cost
to family members and guests who may stay overnight in department facilities
does not appear to apply to the subchapter. Further, the commenter requested
clarification as to whether the possible cost applies only to family members
or guests who stay overnight on campus while visiting a consumer.
The department responds that the language was inadvertently retained in
the fiscal note language from the previous proposal. Section 417.15 sets forth
the provisions for family members or guests who may stay overnight on campus
while visiting a consumer. The facility CEO has the authority to waive or
reduce the charges for overnight accommodations. There is a schedule of recommended
charges in the
TDMHMR Fiscal Manual
.
The commenters expressed support for including playground equipment in
the list of examples of items that can be paid for with benefit funds. The
commenters noted that several years ago playground equipment was removed from
campuses and further noted that adults receiving services enjoyed using playground
equipment. The department appreciates the commenters' support.
The commenters expressed concern about the protection of individual's personal
property specifically the language "the facility is limited in its ability
to protect any personal property that an individual keeps on the unit..."
and inventorying personal property "if a discrepancy arises, develop a process
for documenting, investigating, and resolving the discrepancy" because the
language seems to make it easier for staff to avoid responsibility when personal
property disappears.
The department responds that it makes every effort to protect individual's
personal property. Further, the department responds that the language "if
an individual chooses to keep personal property on the unit" to serve as notice
that protection of personal property kept on the unit cannot be guaranteed
and that property of any value should be held by the facility. The language
"if a discrepancy arises, develop a process for documenting, investigating,
and resolving the discrepancy" is included to require that staff adhere to
processes for documenting and resolving discrepancies concerning personal
property. The department notes that similar language appears in Chapter 404,
Subchapter E, concerning rights of persons receiving mental health services.
The commenters asked that the term "LAR" (i.e., legally authorized representative)
be added in several places in §417.38, Individual's Personal Property.
The department agrees to add the term "LAR" as the commenters suggested.
The commenters requested that a distribution section, including advocacy
groups, be added to the subchapter. The department responds that the §417.50,
Distribution, was adopted at the September 2002 Board meeting. Although, advocacy
groups were inadvertently omitted from the list the new subchapter will be
distributed to such groups in hard copy and electronically, as appropriate.
The department further responds that the distribution section will be amended
section with the next revision to the subchapter.
The new sections are adopted under the Texas Health and Safety
Code, §532.015(a), which provides the Texas Mental Health and Mental
Retardation Board with broad rulemaking authority, and Texas Government Code, §2001.039,
which requires the department to review it rules.
The new sections affect Texas Health and Safety Code, §532.015; Texas
Human Resources Code, §32.021; Texas Government Code, §531.021,
and Texas Government Code, §2001.039;
§417.2.Application.
Except for §§417.39 - 417.46, concerning trust funds, that
apply only to state hospitals, the subchapter applies to state hospitals,
state schools, state centers, Central Office, and any entity that may become
part of the Texas Department of Mental Health and Mental Retardation (TDMHMR).
§417.4.Definitions.
The following words and terms when used in this subchapter have the
following meanings, unless the context clearly indicates otherwise.
(1)
Budgeted amount--The amount of cash that may be disbursed
to an individual at regular intervals, e.g., weekly or monthly for discretionary
spending without obtaining a sales receipt for the expenditure.
(2)
CEO--The chief executive officer of a state mental health
facility or a state mental retardation facility.
(3)
Commercial lease--A lease of real property to a private
enterprise.
(4)
Competitive bid--A competitive process for determining
the award of a lease, more particularly described in Texas Health and Safety
Code, §533.084 and §533.087.
(5)
Department--The Texas Department of Mental Health and Mental
Retardation (TDMHMR).
(6)
Facility--A state mental health facility (SMHF) or a state
mental retardation facility (SMRF) operated by the TDMHMR.
(7)
Individual--A person receiving services from the Texas
Department of Mental Health and Mental Retardation.
(8)
LAR (legally authorized representative)--A person authorized
by law to act on behalf of an individual with regard to a matter described
in this subchapter, and may include a parent, guardian, or managing conservator
of a minor individual, a guardian of an adult individual, or a personal representative
of a deceased individual.
(9)
Mental illness--An illness, disease, or condition (other
than a sole diagnosis of epilepsy, senility, substance abuse or dependency,
mental retardation, autism or pervasive developmental disorder) that:
(A)
substantially impairs an individual's thought, perception
of reality, emotional process, or judgment; or
(B)
grossly impairs an individual's behavior as demonstrated
by recent disturbed behavior.
(10)
Mental retardation--Subaverage general intellectual functioning
existing concurrently with deficits in adaptive behavior and originating during
the developmental period.
(11)
Material safety data sheet--The document provided by a
manufacturer that describes a material's or part's chemical properties along
with guidelines for proper use, storage, and disposal.
(12)
Non-commercial group--A group of people associated with
an organization, e.g., civic, fraternal, religious, social, service, community,
or public employee organization.
(13)
Pooled account--A trust fund account containing the personal
funds of more than one individual.
(14)
Prevailing market rate--A reasonable estimate of the annual
rent for a real property based upon its fair market value that reflects the
real property's condition, location, and other salient factors.
(15)
Public benefit lease--A lease of non-surplus real property
between the department and a federal or state agency, a unit of local government,
a not-for-profit organization, or an entity that provides services to individuals
and/or employees. Such a lease is determined or defined by the board as providing
a public benefit.
(16)
Public employee organization--An organization that represents
department staff in legislative, human resource, and related issues.
(17)
Sales receipt--A written statement issued by the seller
that includes:
(A)
the date it was created; and
(B)
the cost of the item or service.
(18)
SMHF--A state mental health facility (e.g., state hospital).
(19)
SMRF--A state mental retardation facility (e.g., state
school or state center).
(20)
Surplus property--Real property designated by the Texas
Mental Health and Mental Retardation Board (board) as having minimal value
to the present delivery system as described in the department's long-range
plan.
(21)
Trust fund account--An account at a financial institution
in the facility's control that contains personal funds.
(22)
Unauthorized departure that may have unusual consequences--The
unauthorized departure of an individual that causes a reasonably prudent staff
member who has knowledge of the person's condition to believe that harm or
injury to the individual or to others may occur as a result of the unauthorized
departure, e.g., the unauthorized departure of an individual who the treatment
staff believes to be a danger to self or to others or the unauthorized departure
of an individual who requires maintenance medication such as insulin.
(23)
Unclaimed personal funds or property--Personal funds or
property managed by the facility that has not been disbursed to the individual
or LAR within 30 calendar days after the individual's discharge, e.g., if
an individual dies and staff are unable to find the LAR or heir to the estate.
(24)
Unidentified personal funds or property--Personal funds
or property managed by the facility for which the facility cannot identify
ownership.
§417.23.Unauthorized Departures That May Have Unusual Consequences.
The CEO or designee shall immediately if possible, but in no case more
than one hour later make a missing person report to the appropriate law enforcement
agency upon discovering an unauthorized departure that may have unusual consequences
for an individual who:
(1)
is unable to ensure his or her personal safety and/or is
considered to be a danger to self or others; and
(2)
is receiving court-ordered inpatient or residential services
or is voluntarily receiving mental retardation residential services.
§417.27.Depositing Department Funds.
The CEO or designee is responsible for ensuring that:
(1)
all funds received are deposited with the state treasurer
or in an account that is insured under state or federal law.
(2)
the balance of such account does not exceed the insured
limit of the financial institution; and
(3)
all funds that must be deposited in the State Treasury
are deposited within three business days of receipt.
§417.28.Investing Department Funds.
(a)
The CEO or designee must ensure that funds which are not
required for current use are invested with Texas financial institutions or
the Central Office investment plan. Earnings on invested funds other than
trust funds shall be added to the funds from which earnings are derived. The
interest rate and the availability for withdrawal in case of emergency must
be considered in making investment selections.
(1)
Texas financial institutions. If the Texas financial institution
is insured under state or federal law, the funds may be invested in certificates
of deposit or savings accounts. If the investment amount exceeds the limits
of state and federal insurance the investment source must pledge additional
securities equal to the investment amount.
(2)
Central Office investment program. Central Office offers
a short term fund, current interest rate, investment plan for the benefit
of all facilities. Funds may be transferred to Central Office, Financial Services
in multiples of $2,500 for immediate return upon request. Interest payments
are remitted by Central Office, Financial Services at the end of each month.
(b)
A register of investments, including individuals' personal
funds must be maintained in the office of the CEO or designee, including:
(1)
name of financial institution;
(2)
a description of each investment;
(3)
the amount and date of the investment;
(4)
interest due dates;
(5)
interest paid dates;
(6)
maturity date; and
(7)
reinvestment information.
(c)
The CEO or designee must use the register of investments
to verify collection of income and principal.
§417.29.Benefit Funds: Use and Control.
(a)
Authority. As authorized by the Texas Health and Safety
Code, §551.004, the CEO must be the trustee of a special fund designated
as the benefit fund. The CEO may expend the money in any such fund for the
education or entertainment of individuals or for the actual expense of maintaining
the fund at the financial institution.
(b)
Source of funds. The source of benefit funds are:
(1)
private donations or gifts; and
(2)
interest earned from investment of benefit funds.
(c)
Use of funds. Except for specific purpose funds, benefit
funds may be used only for the purposes of education or entertainment of individuals
and be of general benefit to the facility's population. However, this does
not mean or imply that every individual must benefit from each expenditure
from the benefit fund. Benefit funds must not be spent in a manner that shows
partiality or preferential treatment of an individual or selected groups of
individuals. Expenditures from the benefit fund must be supported by sales
receipts to show the exact purpose and, if practical, to show the name of
the individuals' benefiting from the expenditure.
(d)
Allowable expenditures. Expenditures from the benefit funds
may include items such as:
(1)
supplies for behavior therapy programs, which involve a
token economy or point level system;
(2)
outings for individuals, including admission fees and meals
for those staff who are required to accompany the individuals;
(3)
coffee for individuals;
(4)
religious items;
(5)
educational books and supplies;
(6)
salaries of temporary teachers, including athletic instructors
and recreation assistants;
(7)
playground equipment, televisions, record players, and
stereos, for use by individuals as a whole in the living areas; and
(8)
grocery items purchased for classes in home economics.
(e)
Unallowable expenditures. Expenditures that cannot be made
from the benefit fund include:
(1)
travel of state employees;
(2)
operating supplies;
(3)
supplies for volunteer center training program;
(4)
nursery stock;
(5)
clothing for individuals;
(6)
cash issues to individuals with no personal funds.
(7)
purchase of canteen coupon books for individuals with no
personal funds;
(8)
staff salary augmentation;
(9)
transportation for individuals' home visits; and
(10)
furniture and equipment normally purchased from state
appropriated funds.
(f)
Prohibition on use of funds. Unless prohibited by department
policy or state or federal laws and regulations, funds that are donated for
a specific purpose must be used for that purpose. If the purpose for the funds
is prohibited, the donor is contacted and asked to specify a purpose that
permits expenditure in compliance with department policy or state or federal
law and regulations.
(g)
Depositing funds. The CEO or designee must ensure that
all benefit fund receipts are deposited in a financial institution insured
by state or federal and all expenditures are made by check according to the
(h)
Administrative expenses. The actual expense of maintaining
benefit funds may include expenditures to cover administrative errors which
arise in the administration or disbursement of benefit funds and personal
funds, provided the following restrictions are met:
(1)
the amount of benefit funds expended to cover any single
loss does not exceed $250;
(2)
in each instance of loss, prior approval for the use of
benefit funds to cover the administrative error must be obtained from the
CEO;
(3)
the circumstances surrounding each administrative error
must be documented and attached in the supporting records;
(4)
for auditing purposes, the expenditure, if approved and
made, must be charged to cash shortage;
(5)
benefit funds must not be used to cover losses that result
from the gross negligence of any employee or employees;
(6)
the facility in which the administrative error occurred
must take the action necessary to correct the error and/or prevent its recurrence,
including, but not limited to, counseling staff on the correct procedure for
the administration and disbursement of benefit funds and personal funds; and
(7)
employees responsible for administrative errors in the
administration or disbursement of benefit funds and personal funds may be
subject to disciplinary action.
§417.33.Mail for Staff Residing On Campus.
(a)
Staff mail. Except as provided by subsection (b) of this
section, all mail addressed to staff is delivered unopened to the addressee.
Routine, indiscriminate opening of an employee's mail is prohibited. Unless
living on grounds, staff must not have personal mail delivered to the facility.
(b)
Authority to open mail. If the CEO determines that it is
in the best interest of the facility to maintain fiscal control over monies
belonging to the facility, an individual, or to control contraband, the CEO
has the authority to open any mail addressed to a staff member, office, or
section of the facility (except personal mail addressed to staff or their
families living on the grounds or mail marked "personal" or "confidential").
Mail addressed to an employee (except that indicated in subsection (a) of
this section) can be opened only in the presence of the employee.
§417.34.Commercial Solicitation on Grounds.
The CEO is responsible for developing and implementing local procedures
regarding commercial solicitation on the grounds of the facility that include
the requirement for staff to direct sales representatives to those staff who
are responsible for ordering the types of products being offered, e.g., drug
representatives are directed to the pharmacy director or the given the times,
dates, and locations of the meetings of the executive formulary committee.
§417.38.Individual's Personal Property.
(a)
Local procedures. The CEO or designee is responsible for
developing and implementing local procedures to ensure an individual's right
to reasonable protection of personal property including clothing and mail
from theft or loss consistent with Chapter 404, Subchapter E, concerning Rights
of Persons Receiving Mental Health Services, and Chapter 405, Subchapter Y,
concerning Client Rights--Mental Retardation Services or any other department
rules that concern the rights of individuals.
(b)
Personal property. The CEO or designee is responsible for
developing and implementing written processes that protect each individual's
personal property that include:
(1)
advising individuals and LARs that the facility is limited
in its ability to protect any personal property that an individual keeps on
the unit, however, if loss or theft of such property is reported staff must
make every effort to find and return the missing property to the owner;
(2)
documenting the receipt of any personal property that is
to be held under the facility's control;
(3)
physically inventorying personal property under the facility's
control and documenting personal property received from individuals to ensure
it is accounted for and if a discrepancy arises develop a process for documenting,
investigating, and resolving the discrepancy;
(4)
documenting and honoring an individual's request for the
return of any or all of his or her personal property previously under the
facility's control.
(c)
Returning personal property. If an individual is discharged
from the facility, staff must upon discharge or a soon as possible thereafter
document and return to the individual or LAR all of the individual's personal
property under the facility's control.
(d)
Individual's personal mail. Except as described in this
section and department rules concerning the rights of individuals, an individual's
personal mail must be delivered unopened to the addressee. If staff have reason
to believe that mail addressed to an individual is an invoice and the facility
is responsible for its payment, then the mail must be opened by the individual
and witnessed by two staff. If the mail contains such an invoice, it is forwarded
to accounts payable for processing, an explanation of the situation is given
to the individual, and the situation is documented in the individual's record.
§417.39.Protecting an Individual's Personal Funds.
(a)
Rules concerning the personal funds of individuals receiving
services from a state mental retardation facility (SMRF) are in Chapter 419,
Subchapter E, concerning ICF/MR Program.
(b)
The state mental health facility (SMHF) must implement §§417.39
- 417.46 of this title according to the generally accepted accounting principles
of the American Institute of Certified Public Accountants.
(c)
The CEO must develop and implement local procedures regarding
personal funds that protect the financial interest of individuals and, at
a minimum, require the SMHF to allow individuals to hold and manage their
personal funds to the extent of their abilities.
§417.40.Notice Regarding Personal Funds.
At the time of admission to the SMHF, and if changes to services or
charges occur, staff must provide each individual or LAR with written notification
containing the following information:
(1)
a written explanation of §417.41 of this title (relating
to Determining Management of Personal Funds), which describes who may manage
personal funds;
(2)
a statement that the admitting physician determines whether
the individual has the ability to manage his or her personal funds and if,
an individual is unable to manage such funds, the funds are deposited in the
trust fund account for no longer than seven calendar days when the treating
physician reevaluates the admitting physician's determination;
(3)
a statement that the individual, CEO, or LAR may request
that the Social Security Administration appoint a representative payee to
receive the individual's federal benefits in accordance with 20 CFR Part 416,
Subpart F;
(4)
a statement that, if the facility manages the individual's
personal funds, staff must make available the individual's personal funds
ledger upon the individual's or LAR's request but in no case longer than 30
calendar days; and
(5)
a statement that at the request of the individual or LAR,
or if the individual is discharged from the SMHF, the SMHF must whenever possible
disburse the individual's personal funds to the individual or LAR upon discharge
but in no event more than 30 calendar days after the request or discharge,
if the SMHF manages the individual's personal funds.
(6)
a statement that the facility is not responsible for personal
funds mailed directly to individuals; and
(7)
a statement that the SMHF maintains a trust fund to protect
personal funds and such funds including cash and checks that are to be deposited
in the trust fund must be mailed to the cashier's attention.
§417.41.Determining Management of Personal Funds.
(a)
Within seven business days after an individual is admitted
to the SMHF, the treating physician must determine if the individual has the
ability to manage his or her personal funds.
(b)
If an individual does not have an LAR and is determined
by the treating physician to have the ability to decide who manages his or
her personal funds or if an individual has an LAR, the facility must allow
the individual or LAR to choose one of the following to manage his or her
personal funds and document such choice as determined by local procedures:
(1)
the individual, if the individual is determined to have
the ability to manage his or her personal funds;
(2)
the individual's LAR;
(3)
another person identified by the individual or LAR who
has agreed in writing to manage the individual's personal funds; or
(4)
the facility.
(c)
If an individual is determined not to have the ability
to decide who manages his or her personal funds and the individual has no
LAR, the SMHF must manage the individual's personal funds in accordance with
this subchapter.
(d)
The treating physician must reassess an individual's understanding
of financial management at the individual's or LAR's request.
§417.42.SMHF--Managed Personal Funds.
(a)
Accounting for personal funds. If the facility manages
an individual's personal funds, the SMHF must comply with this section and
ensure that:
(1)
a complete accounting of personal funds entrusted to the
SMHF is maintained;
(2)
personal funds are not commingled with facility funds or
the funds of any person other than another individual for whom the SMHF manages
personal funds; and
(3)
an individual's personal funds are only expended for that
individual's use and benefit.
(b)
Account requirements. The SMHF must manage personal funds
in a pooled trust fund account.
(1)
The trust fund account must be insured under federal or
state law.
(2)
The SMHF must retain all bank statements from financial
institutions regarding trust fund accounts.
(3)
Within 30 calendar days after receiving the bank statement,
the facility must reconcile the bank statement with the general ledger as
described in subsection (c) of this section and personal funds ledger as described
in subsection (h)(5) of this section.
(4)
Each business day, staff must reconcile:
(A)
each individual's transactions with the trust fund control
ledger; and
(B)
the personal funds ledger with the trust fund control ledger.
(c)
General ledger. The SMHF must maintain a general ledger
that separately identifies each financial transaction, including:
(1)
the name of the individual for whom the transaction was
made;
(2)
the date and amount of the transaction, including interest;
(3)
the balance after the transaction; and
(4)
identify the SMHF name in the account title and the type
of account, e.g., Austin State Hospital, Trust Fund Account.
(d)
Investment. Unless an exception is granted by the director,
State Mental Health Facilities and written documentation of such is maintained
at the facility, the SMHF must invest at least 75% of the average monthly
balance of the total held in trust for the previous six months in an insured
Texas financial institution.
(e)
Interest. If personal funds accrue interest, the SMHF must
prorate and distribute the interest earned to each participating individual
at the end of the month.
(f)
Depositing personal funds. The SMHF must deposit in the
trust fund account all funds that it receives on behalf of an individual.
(g)
Access to personal funds. The treating physician must determine
the individual's ability to manage his or her personal funds and:
(1)
if there is a need for a budgeted amount, set the amount,
and document the amount in the individual's medical record; and
(2)
if there is a need to restrict the individual's use of
personal funds the treating physician must document the need for the restriction
in the individual's medical record.
(h)
Personal funds documentation. Staff must maintain a personal
funds documentation for each individual that includes:
(1)
the name of the individual;
(2)
the name of the individual's LAR and representative payee,
as applicable;
(3)
the date of the individual's admission to the SMHF;
(4)
the individual's budgeted amount;
(5)
a personal funds ledger that includes the date and amount
of each transaction and the balance after each transaction; and
(6)
any contribution acknowledgment as described in §417.46
of this title (relating to Contributions).
(i)
Documenting expenditures and deposits.
(1)
Expenditures.
(A)
Staff must retain a sales receipt for each expenditure
made on behalf of an individual.
(i)
If a sales receipt documents an expenditure for more than
one individual, the SMHF must indicate on the sales receipt the amount allocated
to each individual.
(ii)
If a sales receipt does not include the specific item
or service purchased or the name of the seller, staff must attach such documentation.
(B)
Staff must explain each expenditure to the individual and
request that the individual sign the receipt. If staff determine that the
individual does not understand the explanation, the individual does not sign
the receipt, or the individual's signature is illegible, a witness to the
expenditure must sign the receipt. The witness cannot be responsible for managing
personal funds or responsible for supervising persons performing such duties.
(2)
Deposits. Except for deposits made electronically, staff
must retain a deposit slip issued by the financial institution for each deposit.
§417.43.Requests for Personal Funds from Trust Fund Accounts.
If staff receive a request, from an individual or other person except
staff to expend an individual's personal funds without written evidence supporting
the disbursement, a written request specifying the amount and purpose of the
expenditure is signed by the requestor, the facility may release such funds
to the requestor if the funds recipient acknowledges receiving the funds in
writing.
§417.44.Returning Individual's Personal Funds on Discharge.
If an individual is discharged from the facility, staff must upon discharge
or in no case more than 30 calendar days after the discharge:
(1)
reconcile the personal funds ledger to the trust fund control
ledger and the trust fund control ledger to the general ledger;
(2)
transfer all personal funds managed by the facility:
(A)
to the facility receiving the individual, if the individual
is discharged to another facility; or
(B)
to the individual or LAR, if the individual is not discharged
to another SMHF;
(C)
the copy of a check serves as documentation for the distribution
of personal funds.
(3)
provide to the admitting SMHF, individual, or LAR the individual's
current personal funds documentation.
§417.45.Unclaimed Personal Funds and Property.
(a)
If a person makes a request for an individual's unclaimed
personal funds or property that:
(1)
exceeds $500 and provides written authorization from the
probate court to receive such funds or property, staff release the funds or
property.
(2)
is $500 or less and the CEO or designee is reasonably certain
that the person is the lawful heir and that there is no concern for a future
dispute over the disbursed funds or property, facility staff release the funds
or property.
(b)
If no request for the unclaimed funds or property is received,
staff must make a good faith effort to locate the individual to whom the funds
or property belong or the LAR. If the individual or LAR:
(1)
is located or a request for the personal funds or property
is received, staff must transfer the funds or property to the individual or
LAR; or
(2)
is not located, staff must maintain the personal funds
in a bank account as described in §417.42(b) of this title (relating
to SMHF--Managed Personal Funds) or maintain the property in a secure location.
(A)
The SMHF must hold the unclaimed personal funds or property
for three years.
(B)
At the end of three years if no request for the funds or
property is received, the SMHF must transfer to State Comptroller's Office
the unclaimed funds or property according to the
Holder Information Report
instructions published by the State Comptroller's
Office.
§419.46.Contributions.
If the individual or LAR makes a contribution to the SMHF using personal
funds, the SMHF and the contributor must sign and date an acknowledgement
that the SMHF's services are not predicated on a contribution and the contribution
is voluntary. The acknowledgement must be made a part of the individual's
personal funds documentation. There are additional requirements for accepting
contributions in Chapter 417, Subchapter G, concerning community relations.
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 April 7, 2003.
TRD-200302262
Rudy Arredondo
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: April 27, 2003
Proposal publication date: December 13, 2002
For further information, please call: (512) 206-4516
25 TAC §§417.151 - 417.160
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) adopts new Chapter 417, Subchapter D, §§417.151, 417.152,
417.155 - 417.160, concerning permanent improvements donated by individuals
or community groups without changes to the proposed text published in the
December 6, 2002, issue of the
Texas Register
(27
TexReg 11449). Section 417.153 and §417.154 are adopted with changes
to the proposed text. The new sections replace Chapter 410, Subchapter C, §§410.101
- 410.122, which contained substantially the same issues, are contemporaneously
repealed in this issue of the
Texas Register
.
The adoption of new §§417.151 - 417.160 and the contemporaneous
repeals of §§410.101 - 410.122 are made to describe the procedures
and approval process for individuals and community groups to donate a permanent
improvement to a facility.
The adoption of the new rules and repeals fulfill the requirements of Texas
Government Code, §2001.039, concerning the periodic review of department
rules.
In §417.153, the definition of the term "construction" an error in
capitalization was corrected.
In §417.154(a), the abbreviation of permanent improvement, i.e., (PI
improvement) that should have read (improvement) was corrected.
Comments were not received from the public.
The new sections are adopted under the Texas Health and Safety
Code, §532.015(a), which provides the Texas Mental Health and Mental
Retardation Board with broad rulemaking authority and Texas Government Code, §2001.039,
concerning the periodic review of department rules.
§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)
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.
(4)
Community group--A volunteer services council that is affiliated
with TDMHMR or a group of people associated with an organization (e.g. civic,
fraternal, corporate, religious, social, service, community, or educational).
(5)
Construction--The implementation of a physical improvement
(e.g., erecting, remodeling, renovating, or altering a building or addition
thereto, gazebo, pavilion, road, sidewalk, fountain, or pond) and/or installing
or extending a building system (e.g., roofing, mechanical, plumbing, or electrical
system) that is integral to the durability and habitability of a building
(e.g., air conditioning units, water or wastewater distribution lines, electrical
wiring located in walls or underground, and subflooring or foundation work).
(6)
Construction documents--Construction drawings, specifications,
and all addenda issued prior to, and all modifications issued after execution
of the contract.
(7)
Dedicated construction account--A unique, restricted interest-bearing
account insured by an agency of the federal government that is established
for the sole purpose of ensuring that sufficient funds are in place prior
to initiating construction of a permanent improvement.
(8)
Donor--A person, community group, or business entity who
wants to donate a permanent improvement.
(9)
Director, facility community relations--The staff person
who is responsible for coordinating the community relations functions, volunteer
programs, and fundraising at a facility.
(10)
Endowment fund--A permanent, restricted fund established
and maintained by the volunteer services council to fund, by generating interest
income from the principal fund, the ongoing operating expenses for a specific
permanent improvement.
(11)
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).
(12)
Facility chief executive officer (CEO)--The chief administrator
of a facility.
(13)
Landscaping--An improvement involving the systematic installation
of plant materials (e.g., trees, shrubs, grass, blooming plants, irrigation
systems, and/or grading, clearing, or other alteration of the existing topography
and composition of the land).
(14)
Local project manager--A facility staff person designated
by the permanent improvement committee who acts on behalf of the permanent
improvement committee in dealing with the design professional and contractor
for the duration of the improvement's construction.
(15)
Permanent improvement (improvement)--A facility improvement
that requires construction or an improvement consisting of landscaping.
(16)
Permanent improvement committee (PI committee)--The committee
that is appointed by the executive committee of the facility's volunteer services
council for the purpose of overseeing and/or donating a permanent improvement.
(17)
SMHMRFs--State Mental Health and Mental Retardation Facilities.
(18)
TDMHMR--The Texas Department of Mental Health and Mental
Retardation.
(19)
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.
(20)
Volunteer services council (VSC) board--The board of directors
of the facility's volunteer services council.
(21)
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.Permanent Improvement Process.
(a)
The facility CEO, with assistance from the director, facility
community relations, and the VSC chair, must submit a written description
of the proposed permanent improvement (improvement) by completing and submitting
the Permanent Improvement Concept form referred to in §417.159 of this
title.
(b)
If the concept is approved by the commissioner or designee
as described in §417.155 of this title (relating to Permanent Improvement
Approval), the facility CEO with assistance from the director, facility community
relations, and the VSC chair, submit a completed Permanent Improvement Proposal
form, which is referred to in §417.159 of this title (relating to References).
(c)
The director, facility community relations, or VSC chair
may consult with the donor throughout all phases of the review and approval
process, including:
(1)
the proposal review process;
(2)
the design, fundraising, and construction review process;
and
(3)
the acceptance process.
(d)
If requested by the facility CEO, the donor must establish
an endowment fund for ongoing maintenance and support for the improvement.
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 April 7, 2003.
TRD-200302267
Rudy Arredondo
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: April 27, 2003
Proposal publication date: December 6, 2002
For further information, please call: (512) 206-4516
Chapter 91.
CANCER
Chapter 99.
OCCUPATIONAL DISEASES
Chapter 128.
PERMITS FOR CONTACT LENS DISPENSERS
Chapter 169.
ZOONOSIS CONTROL
Chapter 221.
MEAT SAFETY ASSURANCE
Chapter 227.
MINIMUM GUIDELINES FOR HUMAN DONOR MILK BANKS
Chapter 229.
FOOD AND DRUG
Subchapter P. ASSESSMENT OF ADMINISTRATIVE PENALTIES
Part 2.
TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION
Chapter 407.
INTERNAL FACILITIES MANAGEMENT
Subchapter C. LEASE OF TDMHMR SURPLUS PROPERTY
Chapter 410.
VOLUNTEER SERVICES AND PUBLIC INFORMATION
Chapter 414.
PROTECTION OF CONSUMERS AND CONSUMER RIGHTS
Subchapter A. PROTECTED HEALTH INFORMATION
Chapter 417.
AGENCY AND FACILITY RESPONSIBILITIES
Subchapter D. PERMANENT IMPROVEMENTS DONATED BY INDIVIDUALS OR COMMUNITY GROUPS
Subchapter K. ABUSE, NEGLECT, AND EXPLOITATION IN TDMHMR FACILITIES