Part 1.
TEXAS DEPARTMENT OF HEALTH
Chapter 139.
ABORTION FACILITY REPORTING AND LICENSING
The Texas Department of Health (department) adopts amendments to §§139.1-139.8,
139.21-139.25, 139.31-139.33, and 139.41-139.60, and the repeal of §139.34,
concerning the regulation of abortion facilities. Sections 139.2, 139.6, 139.22,
139.23, 139.31-139.32, 139.41, 139.43, 139.50-139.52 and 139.58-139.59 are
adopted with changes to the proposed text as published in the November 14,
2003, issue of the
Texas Register
(28 TexReg
10051). Sections 139.1, 139.3-139.5, 139.7-139.8, 139.21, 139.24-139.25, 139.33,
139.42, 139.44-139.49, 139.53-139.57, and 139.60, and the repealed §139.34
are adopted without changes, and therefore the sections will not be republished.
The amendments are adopted based upon the department's review of 25 Texas
Administrative Code, Chapter 139, as required by Government Code, §2001.039
and as required by legislation that affects the regulation of non-exempt abortion
facilities.
Specifically, the amendment to §139.1 clarifies the reporting requirements
for an abortion facility and defines exemptions for licensing requirements
for abortion facilities. The amendment to §139.2 adds definitions, clarifies
others, and deletes some definitions. The definitions were renumbered as necessary
to reflect the changes. Amendments to §§139.3 and 139.4 add and
delete language to better enable the department to enforce the requirements
of these sections and for clarification purposes. The amendment to §139.5
adds probation to types of possible enforcement action that may be taken by
the department, and updates language to reflect current statutes. The amendment
to §139.6 deletes the requirement that violations not be disclosed that
would pose a health risk until plans of correction have been submitted, changes
"survey" to "inspection", and reflects current statutes. The amendment to §139.7
clarifies the intent of the section by adding "licensed" to abortion facilities,
and deletes the requirement that the issuance of the unique license number
may not coincide with the deadlines established by advertisers. The amendment
to §139.8 deletes the requirement concerning facility quality assurance
committee records.
The amendments to §§139.21, 139.22, and 139.23 add requirements
for two-year licensure, a process for ordering probation as a sanction, and
for an annual assessment fee to cover additional costs for Health and Safety
Code, Chapter 171. Requirements for the first annual license, current letter
from the state comptroller's office, and active military exception are deleted,
simplifying the licensure process. The amendment to §139.24 adds the
word "licensed" to "abortion facility," and substitutes the words "pre-inspection"
and "inspection" for "pre-survey" and "survey" for clarification. The amendment
also deletes the requirement to submit a license application for relocation
of a facility; and adds a requirement for policies to address the preservation
and release of medical records in the event a facility closes.
The amendment to §139.25 deletes language for first annual license
to reflect changes to initial licensing procedures. The amendment to §139.31
replaces the word "survey" with "inspection"; adds the word "licensed" to
"abortion facility"; adds the requirement that all on-site inspections will
be unannounced; deletes specific department survey procedure language; and
changes inspection processing times from five to 14 calendar days. Other changes
are for clarity, and portions are deleted to reflect current departmental
procedure.
The amendments to §§139.32 and 139.33 and the repeal of §139.34
add and delete language in order to clarify the department's enforcement process.
The amendments to §§139.41 - 139.45 add and delete language for
clarification. Specific language is added to reflect new legislative requirements
and to ensure compliance with existing governmental requirements. Language
requiring compliance concerning the prohibition of illegal remuneration for
securing or soliciting patients or patronage is deleted from this section
because regulations prohibiting solicitation are now located in Occupations
Code, Chapter 102. New language for compliance with this is added to §139.60.
The amendments to §139.46 add "midlevel provider" and delete "physician
extender" to reflect current terminology, delete the requirement that laboratory
staff have a high school education, and change the wording for anesthesia
staff to reflect current terminology.
Amendments to §§139.47 -139.49 change language to reflect current
definitions, to reflect current standards of practice, and to delete obsolete
language and policies.
The amendments to §139.50 add requirements for the facility to comply
with the Health and Safety Code, Chapter 171. Additional language is added
for clarification.
The amendments to §139.51 add language to meet requirements as described
in Health and Safety Code, §§171.014 and 171.015 concerning informational
materials and information relating to public and private agencies.
The amendment to §139.52 expands requirements for patient education/information
services to ensure compliance with Health and Safety Code, §§171.011
and 171.012, concerning informed consent, and deletes obsolete language.
The amendment to §139.53 adds new language, and renumbers the section
based on the separation of surgical and medical abortion requirements. Amendments
also incorporate use of current terminology.
The amendment to §139.54 reflects the changed designation of licensed
abortion facilities and certain staff positions. The amendment to §139.55
clarifies requirements for entry of information and retrieval of records by
the facility, and clarifies requirements concerning documentation by facility
in the patient's clinical record.
Language added to §139.57 and §139.58 defines medical record
retention requirements and incorporates the term "licensed abortion facility."
The amendment to §139.59 adds and deletes language to reflect current
standards of practice for anesthesia services and to enable the department
to better enforce this section. Training, knowledge, and staffing requirements
are added.
The amendment to §139.60 includes language to reflect current standards
of practice and revised statutory citations. Additional requirements were
added in the areas of medical services and first aid, parental notice, and
the facility's duty to assure staff compliance with current state and federal
laws.
Government Code, §2001.039, requires that each state agency review
and consider for re-adoption 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. However, revisions to the sections are necessary.
The department published a Notice of Intention to Review for §§139.1-139.8,
139.21-139.25, 139.31-139.34 and 139.41-139.60 in the
Texas Register
in the July 18, 2003, issue (28 Tex Reg 5667). No comments
were received due to publication of this notice.
The following comments were received concerning the proposed sections.
Following each comment is the department's response and any resulting change(s).
Comment: Concerning the rules in general, some commenters made very general
comments opposing the rules, and other commenters made non-specific comments
supporting the rules. Many commenters requested the department review all
the proposed rules and delete any language that was more restrictive than
Health and Safety Code, Chapters 245 and 171.
Response: Health and Safety Code, Chapter 245, gives the department broad
authority to develop minimum standards for abortion facilities. The department
did review the proposed rules to ensure that the rules were consistent with
the regulatory authority granted under Health and Safety Code, Chapters 245
and 171, and some changes were made, as discussed later in this preamble.
Comment: Concerning the rules in general, a commenter requested the department
adopt a rule requiring abortion facilities to provide a copy of a minor's
medical record to the minor's parents.
Response: The department disagrees. Parents of married minors and those
minors who have had their legal disabilities removed are not entitled to obtain
such a minor's medical record. The department does not have the authority
to adopt a rule that requires abortion facilities to provide a copy of every
minor's medical record to the minor's parents. No change was made as a result
of this comment.
Comment: Concerning the rules in general, one commenter requested that
the department reconsider the proposed change in the definition of an abortion
facility. The commenter believes that the definitions in Health and Safety
Code, Chapter 245, give the department authority to enforce the chapter in
all types of abortion facilities, not just licensed abortion facilities.
Response: The legislature exempted ambulatory surgical centers and certain
physician's offices from licensure as abortion facilities under Health and
Safety Code, Chapter 245. The department's authority under Health and Safety
Code, Chapter 245, applies only to nonexempt facilities. However, the department's
rules for abortion facilities have not made the department's interpretation
clear. In the light of recent controversy and litigation over this issue,
the department feels that a clarification is necessary at this time. The phrase
"licensed abortion facility" was added throughout the proposed rules for purposes
of distinguishing between the licensed and exempt facilities. The department
has also made this change in §139.31(c)(4), and §139.32(k) and (l)
in these final rules.
Comment: Concerning the rules in general, many commenters requested the
department not adopt a detailed checklist for use by the facilities to document
informed consent prior to an abortion procedure. Some commenters requested
the department adopt a detailed checklist.
Response: The department disagrees with commenters who requested it not
adopt a checklist. The department believes it is important that there be assurance
that the woman is informed of each of the required elements of the Woman's
Right to Know Act on the certification form. Therefore, the form has been
revised to include a space where the woman will place her initials to acknowledge
that the information listed on the form was provided.
Comment: Concerning the rules in general, one commenter requested that
the department adopt a rule that required all abortion facility personnel
to be subjected to a security check.
Response: The department disagrees. The statute does not authorize the
adoption of a rule requiring security or criminal history checks of facility
personnel. No changes were made as a result of this comment.
Comment: Concerning §139.2, one commenter recommended the department
add a definition for nurse practitioner.
Response: The department agrees and has added the requested definition
in renumbered §139.2(37).
Comment: Concerning §139.2(12), one commenter recommended the language
in the definition of "Certified registered nurse anesthetist (CRNA)" be changed.
The commenter suggested replacing the phrase "currently registered with" with
the phrase "currently authorized by" and replacing the phrase "advanced nurse
practitioner" with the phrase "certified registered nurse anesthetist".
Response: The department agrees and has made the recommended changes.
Comment: Concerning §139.6, one commenter requested that the department
change the language pertaining to providing the woman with the toll-free telephone
number from "at the time of the initial onsite consultation with the facility"
to "at the time of the initial onsite consultation."
Response: The department disagrees. The language in Health and Safety Code, §245.042(d),
specifies that the "facility shall provide to a woman, at the time the woman
initially consults the facility, a written statement indicating the number
of the toll-free telephone line maintained under subsection (c)." No change
was made as a result of the comment.
Comment: Concerning §139.21(i), one commenter recommended that the
rule authorizing the department to assess a reasonable and necessary annual
fee to defray costs be revised to clearly state that this fee would only reflect
costs which were not related to the production and distribution of the Woman's
Right to Know materials. The commenter believed the assessment of a fee to
cover the costs of the materials required by Health and Safety Code, Chapter
171, would be unconstitutional.
Response: The department disagrees. Health and Safety Code, §245.007,
expressly grants the department authority to set fees in amounts reasonable
and necessary to defray the cost of administering Health and Safety Code Chapter
171. No change was made as a result of the comment.
Comment: Concerning §139.41(a)(8), which would require that a woman's
identification be copied or that an affidavit be provided, many commenters
stated the rule exceeds the requirements of Family Code, Chapter 33, and recommended
the rule be deleted. There were also many commenters who supported the rule
as proposed. One commenter noted that the statement in proposed §139.41(a)(8)(A)
"...indicating that she does not have appropriate identification...", is not
the same as the wording on the attached affidavit which states, "...I do not
own identification."
Response: The department disagrees with commenters who recommend deletion
of the rule. The department believes that retention of a copy of the identification
presented is an appropriate method of documenting facilities' compliance with
the parental notification requirements of Family Code, Chapter 33. The department
agrees with the commenter regarding the wording of the affidavit, and the
language in the affidavit form has been revised for consistency with §139.41(a)(8)(B).
Comment: Concerning §139.43(6), one commenter requested the department
add the American Safety and Health Institute to the organizations listed in
the paragraph that provide certification in basic life support.
Response: The department agrees and has added the name of the organization
as requested.
Comment: Concerning §139.43(8), one commenter requested that the department
specify that the required training on child abuse to be completed by all personnel
must be the training which is developed jointly by the department and the
Department of Protective and Regulatory Services.
Response: The department agrees, and has included this clarifying language
in the final rule.
Comment: Concerning proposed §139.50(b)(2), many of the commenters
stated that the proposed rule exceeded the language and intent of HSC, Chapter
171, by requiring that every woman receive a copy of the department's A Woman's
Right to Know booklet which is now in relettered §139.50(a)(3). There
were also many commenters who supported the rule as proposed.
Response: The department disagrees with the commenters who opposed the
rule as proposed. The Merriam-Webster Collegiate Dictionary, Tenth Edition,
defines the word "provide" as "to supply or make available." The rule only
requires that the facility provide the woman with a copy of the department's
A Woman's Right to Know booklet. The woman makes the decision to either accept
the booklet or refuse it. Additional language has been included in the final
rule to clarify that the woman must also be given the option of viewing the
material on the Internet in §139.50(a)(5).
Comment: Concerning proposed §139.50(b)(3), many of the commenters
stated that the proposed rule exceeded the language and intent of HSC, Chapter
171, by requiring that every woman receive a copy of the Woman's Right to
Know resource directory. There were also many commenters who supported the
rule as proposed.
Response: The department disagrees with the commenters who opposed the
rule as proposed. The Merriam-Webster Collegiate Dictionary, Tenth Edition,
defines the word "provide" as "to supply or make available." The rule only
requires that the facility provide the woman with a copy of the department's
Woman's Right to Know resource directory in relettered §139.50(a)(4).
The woman makes the decision to either accept the resource directory or refuse
it. Additional language has been included in the final rule to clarify that
the woman must also be given the option of viewing the material on the Internet
in §139.50(a)(5).
Comment: Concerning §139.51, one commenter requested that the department
add to the rule a requirement which would prohibit the abortion facility from
charging any fees before the 24-hour waiting period was over.
Response: The department disagrees. The department has no statutory authority
to regulate the fees charged by any licensed facility. No change was made
as a result of the comment.
Comment: Concerning §139.51(5), one commenter stated that it is important
for a woman know that a sonogram is part of her medical record and that she
has the right to see it. The commenter requested the department add the words
"including her sonogram" to the rule.
Response: The department agrees and has added the requested language.
Comment: Concerning §139.52 in general, one commenter requested that
the department restore the rule proposed for deletion that required the facility
to "establish that the patient understands the nature and consequences of
the procedure and recognizes alternatives to abortions."
Response: The department disagrees. This rule was amended because the determination
of a patient's understanding is subjective, and not measurable, so there was
no mechanism by which the facility could demonstrate compliance with the rule.
No change was made as a result of the comment.
Comment: Concerning §139.52(a)(1), which requires that the woman sign
the department's certification form prior to the abortion procedure, one commenter
requested that the department add a requirement that the patient must receive
a copy of the "consent form".
Response: The department does not believe the addition of this language
is necessary. The form required in the rule is a certification form, not a
consent form. The certification form is considered part of the clinical record,
and if the patient requests a copy of the form, the facility will be expected
to provide it. No change was made as a result of the comment.
Comment: Concerning Figure: 25 TAC, §139.52(a)(1), one commenter requested
that the department change the term "unborn child" to "human fetus" on the
certification form.
Response: The department disagrees as the term "unborn child" is the term
used in HSC, Chapter 171. No change was made as a result of the comment.
Comment: Concerning §139.52(a)(4), many of the commenters requested
that the proposed rule relating to taking all reasonable steps to maintain
the life of the unborn child be deleted because the vast majority of abortions
are performed in the first trimester, well before viability, and there is
no such requirement in Texas law. There were also many commenters who supported
the rule as proposed.
Response: The department believes that the determination of viability is
a medical practice issue. Clarifying language has been added to the rule to
allow the physician to determine at what point it would be medically appropriate
to advise the patient of the physician's responsibilities to maintain the
life and health of the child if born alive.
Comment: Concerning §139.53(b)(3)(A), one commenter requested the
word "prescribing" be substituted for the word "providing" in the rule.
Response: The department disagrees based on the consensus of medical physician
consultants, and language used in medical literature describing early medical
abortion. No change was made as a result of the comment.
The department is making the following minor changes due to staff comments
to clarify the intent and improve the accuracy of the sections.
Change: Concerning the Spanish version form for the toll-free telephone
number in §139.6(a)(2), the wording was not changed, but the last statement
was indented to be consistent with the English version of the form in §139.6(a)(1).
Change: Concerning §139.22(g), the department has included language
that reflects the authorization provided by Texas Government Code, §2054.111,
to collect subscription and convenience fees for processing initial and renewal
applications through TexasOnline.
Change: Concerning §139.23(d)(5)(B)(iv), the word "that" was inserted
after the word "ensure" for clarity.
Change: Concerning §139.32(e)-(g), the department changed the word
"center" to "facility" to reflect the terminology used throughout the chapter.
Change: Concerning §139.32(l), the word "Code" was added to complete
the title of the Health and Safety Code.
Change: Concerning §139.50, the department has reorganized the section
for the purpose of clarity. In addition, the department removed the requirement
specifying that the initial consultation must be done onsite, which will allow
for alternate methods of accomplishing the disclosure requirements. If the
initial consultation is not conducted onsite, the facility will still be required
to provide the written notifications and disclosures required in §139.50.
These may be provided by email, facsimile transmission, or they may be sent
by conventional mail. If the written notifications and Woman's Right to Know
materials are sent by conventional mail, the abortion procedure cannot be
scheduled until a minimum of 72 hours later. The facility will be required
to document in the clinical record the method by which the required information
was provided to the woman, the date and time it was provided, and the name
and credentials of the facility representative providing it. This documentation
will be used in the compliance monitoring of the facility during inspection.
Also, in §139.50(a)(3) and (4), concerning "A Woman's Right to Know"
booklet, the statement "if the woman chooses to view it." was added by the
Board of Health.
Change: Concerning §139.58, the department changed the word "women's"
to "woman's" as a correction.
Change: Concerning §139.59(e)(3), the department added the word "in"
as a correction.
Change: Concerning Figure: 25 TAC, §139.52(a)(1), the Certification
Form was reorganized to more clearly delineate the disclosure responsibilities
of both the physician and the facility, and to include a line next to each
item for the woman to confirm that the required information was provided.
The commenters included Senator Juan "Chuy" Hinojosa; Senator Eliot Shapleigh;
Senator Jeff Wentworth; Representative Lon Burnam; Representative Frank J.
Corte, Jr.; Representative Dawnna Dukes; Representative Jessica Farrar; Representative
Elliott Naishtat; Representative Eddie Rodriguez; Representative Senfronia
Thompson; Representative Michael M. Villarreal; National Council of Jewish
Women, Texas State Public Affairs; Family Life Office Diocese of Fort Worth;
Tyler Diocesan Council of Catholic Women of NCCU; Saint Anthony Catholic Church,
Wylie, Texas; Texas Right to Life, Houston, Texas; Women's Health and Family
Planning Association of Texas, Austin, Texas; Board of Nurse Examiners for
the State of Texas; National Instructors Resource Center, ASHI Programs; ACLU
Reproductive Freedom Project, New York; Center for Reproductive Rights, New
York; Jane's Due Process, Austin; The Justice Foundation, San Antonio; Nova
Health System, San Antonio; League of Women Voters of Texas, Austin; Texas
Medical Association; Texas Association of Obstetricians and Gynecologists;
Texas Association of Planned Parenthood Affiliates; Coalition for Nurses in
Advanced Practice; and Project Rachel of San Antonio, Inc. In addition, numerous
individuals commented. Commenters were neither for nor against the rules in
their entirety; they expressed concerns, asked questions and suggested changes
as discussed in the summary of comments.
Subchapter A. GENERAL PROVISIONS
25 TAC §§139.1 - 139.8
The amendments are adopted under the Health and Safety Code,
Chapter 245, Health and Safety Code, Chapter 171, and the Health and Safety
Code, §12.001, which provide the Texas Board of Health (board) with the
authority to adopt rules for its procedures and for the performance of each
duty imposed by law on the board, the department, or the commissioner of health.
The review of these rules implements Government Code, §2001.039.
§139.2.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)
Abortion--Any act or procedure performed after pregnancy
has been medically verified with the intent to cause the termination of a
pregnancy other than for the purpose of either the birth of a live fetus or
removing a dead fetus. This term does not include birth control devices or
oral contraceptives.
(2)
Abortion facility--A place where abortions are performed.
(3)
Act--Texas Abortion Facility Reporting and Licensing Act,
Health and Safety Code, Chapter 245.
(4)
Administrator--A person who:
(A)
is delegated the responsibility for the implementation
and proper application of policies, programs, and services established for
the licensed abortion facility; and
(B)
meets the qualifications established in §139.46(2)
of this title (relating to Licensed Abortion Facility Staffing Requirements
and Qualifications).
(5)
Affidavit - A written statement, sworn to or affirmed,
and witnessed by a witness whose signature and printed name appears on the
affidavit. "Notarized affidavit" in these rules means an affidavit in which
the statement is witnessed by a notary acting pursuant to Government Code,
Chapter 406.
(6)
Affiliate--With respect to an applicant or owner which
is:
(A)
a corporation--includes each officer, consultant, stockholder
with a direct ownership of at least 5.0%, subsidiary, and parent company;
(B)
a limited liability company--includes each officer, member,
and parent company;
(C)
an individual--includes:
(i)
the individual's spouse;
(ii)
each partnership and each partner thereof of which the
individual or any affiliate of the individual is a partner; and
(iii)
each corporation in which the individual is an officer,
consultant, or stockholder with a direct ownership of at least 5.0%;
(D)
a partnership--includes each partner and any parent company;
and
(E)
a group of co-owners under any other business arrangement--includes
each officer, consultant, or the equivalent under the specific business arrangement
and each parent company.
(7)
Ambulatory surgical center--An ambulatory surgical center
licensed under Health and Safety Code, Chapter 243.
(8)
Anniversary Date--The same month and day of each year as
the expiration date of the license.
(9)
Applicant--The owner of an abortion facility which is applying
for a license under the Act. For the purpose of this chapter, the word "owner"
includes non-profit organization.
(10)
Board--The Texas Board of Health.
(11)
Certified nurse-midwife (CNM)--A person who is:
(A)
a registered nurse who is currently licensed under the
Nursing Practice Act, Texas Occupations Code, Chapters 301, and 304;
(B)
recognized as an advanced practice nurse by the Board of
Nurse Examiners for the State of Texas; and
(C)
certified by the American College of Nurse-Midwives (ACNM)
or ACNM Accreditation Council.
(12)
Certified registered nurse anesthetist (CRNA)--A person
who is currently licensed under the Nursing Practice Act, Texas Occupations
Code, Chapters 301 and 304, as a registered nurse, has current certification
from the Council of Certification-Recertification of the American Association
of Nurse Anesthetists, and is currently authorized by the Board of Nurse Examiners
as a certified registered nurse anesthetist.
(13)
Change of ownership--A sole proprietor who transfers all
or part of the facility's ownership to another person or persons; the removal,
addition, or substitution of a person or persons as a partner in a facility
owned by a partnership; or a corporate sale, transfer, reorganization, or
merger of the corporation which owns the facility if sale, transfer, reorganization,
or merger causes a change in the facility's ownership to another person or
persons.
(14)
Clinical nurse specialist--A person who is currently licensed
under the Nursing Practice Act, Texas Occupations Code, Chapters 301 and 304,
and recognized as a clinical nurse specialist by the Board of Nurse Examiners.
(15)
Condition on discharge--A statement on the condition of
the patient at the time of discharge.
(16)
Critical item--All surgical instruments and objects that
are introduced directly into the bloodstream or into other normally sterile
areas of the body.
(17)
Decontamination--The physical and chemical process that
renders an inanimate object safe for further handling.
(18)
Department--The Texas Department of Health.
(19)
Director--The director of the Health Facility Licensing
and Compliance Division of the Texas Department of Health or his or her designee.
(20)
Disinfection--The destruction or removal of vegetative
bacteria, fungi, and most viruses but not necessarily spores; the process
does not remove all organisms but reduces them to a level that is not harmful
to a person's health. There are three levels of disinfection:
(A)
high level disinfection--kills all organisms, except high
levels of bacterial spores, and is effected with a chemical germicide cleared
for marketing as a sterilant by the Food and Drug Administration;
(B)
intermediate-level disinfection--kills mycobacteria, most
viruses, and bacteria with a chemical germicide registered as a "tuberculocide"
by the Environmental Protection Agency (EPA); and
(C)
low-level disinfection--kills some viruses and bacteria
with a chemical germicide registered as a hospital disinfectant by the EPA.
(21)
Education/information staff--A professional or nonprofessional
person who is trained to provide information on abortion procedures, alternatives,
informed consent, and family planning services.
(22)
Facility--A licensed abortion facility as defined in this
section.
(23)
Health care facility--Any type of facility or home and
community support services agency licensed to provide health care in any state
or is certified for Medicare (Title XVIII) or Medicaid (Title XIX) participation
in any state.
(24)
Health care worker--Any person who furnishes health care
services in a direct patient care situation under a license, certificate,
or registration issued by the State of Texas or a person providing direct
patient care in the course of a training or educational program.
(25)
Hospital--A facility that is licensed under the Texas
Hospital Licensing Law, Health and Safety Code, Chapter 241, or if exempt
from licensure, certified by the United States Department of Health and Human
Services as in compliance with conditions of participation for hospitals in
Title XVIII, Social Security Act (42 United States Code, §1395 et. seq.).
(26)
Immediate jeopardy to health and safety--A situation in
which there is a high probability that serious harm or injury to patients
could occur at any time or already has occurred and may well occur again if
patients are not protected effectively from the harm or if the threat is not
removed.
(27)
Inspection--An on-site inspection by the department in
which a standard-by-standard evaluation is conducted.
(28)
Licensed abortion facility--A place licensed by the department
under Health and Safety Code, Chapter 245, where abortions are performed.
(29)
Licensed mental health practitioner--A person licensed
in the State of Texas to provide counseling or psychotherapeutic services.
(30)
Licensed vocational nurse (LVN)--A person who is currently
licensed under Texas Occupations Code, Chapter 302, as a licensed vocational
nurse.
(31)
Licensee--A person or entity who is currently licensed
as an abortion facility.
(32)
Medical consultant--A physician who is designated to supervise
the medical services of the facility.
(33)
Midlevel provider--A midlevel provider is:
(A)
an advance practice nurse who is registered currently licensed
under the Nurse Practice Act, Texas Occupations Code, Chapters 301 and 304,
and is recognized as an advanced practice nurse by the Board of Nurse Examiners
(BNE) for the State of Texas. Advanced practice nurses may include, but not
be limited to, the following:
(i)
certified registered nurse anesthetist;
(ii)
certified nurse midwife;
(iii)
nurse practitioner;
(iv)
clinical nurse specialist; and
(v)
other titles as approved by the BNE; or
(B)
a physician assistant currently licensed under the Physician
Assistant Licensing Act, Texas Occupations Code, Chapter 204.
(34)
Nonprofessional personnel--Personnel of the facility who
are not licensed or certified under the laws of this state to provide a service
and must function under the delegated authority of a physician, registered
nurse, or other licensed health professional who assumes responsibility for
their performance in the licensed abortion facility.
(35)
Noncritical items--Items that come in contact with intact
skin.
(36)
Notarized copy--A copy attached to a notarized affidavit
which states that the attached copy(ies) are true and correct copies of the
original documents.
(37)
Nurse practitioner--A person who is currently licensed
under the Nursing Practice Act, Texas Occupations Act, Chapters 301 and 304,
and recognized as a nurse practitioner by the Board of Nurse Examiners.
(38)
Patient--A pregnant female on whom an abortion is performed,
but shall in no event be construed to include a fetus.
(39)
Person--Any individual, firm, partnership, corporation,
or association.
(40)
Physician--An individual who is currently licensed to
practice medicine under the Medical Practice Act, Texas Occupations Code,
Chapters 151-165.
(41)
Plan of correction--A written strategy for correcting
a licensing violation. The plan of correction shall be developed by the facility
and shall address the system(s) operation(s) of the facility as the system(s)
operation(s) apply to the deficiency.
(42)
Postprocedure infection--An infection acquired at or during
an admission to a facility; there must be no evidence that the infection was
present or incubating at the time of admission to the facility. Postprocedure
infections and their complications that may occur after an abortion include,
but are not limited to, endometritis and other infections of the female reproductive
tract, laboratory-confirmed or clinical sepsis, septic pelvic thrombophlebitis,
and disseminated intravascular coagulopathy.
(43)
Pregnant unemancipated minor certification form--The document
prepared by the Texas Department of Health and used by physicians to certify
the medical indications supporting the judgment for the immediate abortion
of a pregnant minor.
(44)
Pre-inspection conference--A conference held with department
staff and the applicant or his or her representative to review licensure standards,
inspection documents, and provide consultation prior to the on-site licensure
inspection.
(45)
Professional personnel--Patient care personnel of the
facility currently licensed or certified under the laws of this state to use
a title and provide the type of service for which they are licensed or certified.
(46)
Quality assurance--An ongoing, objective, and systematic
process of monitoring, evaluating, and improving the appropriateness, and
effectiveness of care.
(47)
Quality improvement--An organized, structured process
that selectively identifies improvement projects to achieve improvements in
products or services.
(48)
Registered nurse (RN)--A person who is currently licensed
under the Nursing Practice Act, Texas Occupations Code, Chapters 301 and 304
as a registered nurse.
(49)
Sedation/analgesia levels--Levels of sedation /analgesia
include:
(A)
minimal sedation (anxiolysis);
(B)
moderate sedation/analgesia ("conscious sedation");
(C)
deep sedation/analgesia; and
(D)
general anesthesia.
(50)
Semicritical items--Items that come in contact with nonintact
skin or mucous membranes. Semicritical items may include respiratory therapy
equipment, anesthesia equipment, bronchoscopes, and thermometers.
(51)
Standards--Minimum requirements under the Act and this
chapter.
(52)
Sterile field--The operative area of the body and anything
that directly contacts this area.
(53)
Sterilization--The use of a physical or chemical procedure
to destroy all microbial life, including bacterial endospores.
(54)
Supervision--Authoritative procedural guidance by a qualified
person for the accomplishment of a function or activity that includes initial
direction and periodic inspection of the actual act of accomplishing the function
or activity.
(55)
Third trimester certification form--The document prepared
by the Texas Department of Health and used by physicians to certify the medical
indications supporting the judgment for the abortion of a viable fetus during
the third trimester of pregnancy.
(56)
Third trimester--A gestational period of not less than
26 weeks (following last -menstrual period (LMP)).
(57)
Unemancipated minor--A minor who is unmarried and has
not had the disabilities of minority removed under the Texas Family Code,
Chapter 31.
§139.6.Public Information; Toll-Free Telephone Number.
(a)
An abortion facility shall provide to a woman, at the time
the woman initially consults the facility, a written statement indicating
the number of the toll-free telephone number maintained under subsection (d)
of this section. The written statement must be available in English and Spanish.
(1)
The following form is an example of the statement in English.
(2) The following form is an example of the statement in Spanish.
(b)
The department on request shall make the following information
available to the public:
(1) the status of the license of any abortion facility;
(2) the date of the last inspection of the facility, any violation
discovered during that inspection that would pose a health risk to a patient
at the facility, any challenge raised by the facility to the allegation that
there was a violation, and any corrective action that is acceptable to the
department and that is being undertaken by the facility with respect to the
violation; and
(3)
an administrative or civil penalty imposed against the
facility or a physician who provides services at the facility, professional
discipline imposed against a physician who provides services at the facility,
and any criminal conviction of the facility or a physician who provides services
at the facility that is relevant to services provided at the facility.
(c)
Subsection (b) of this section does not require the department
to provide information that is not in the possession of the department. In
accordance with §245.023(b) of the Act, the Texas State Board of Medical
Examiners (board) is required to provide to the department information in
the possession of the board that the department is required to provide under
subsection (b) of this section.
(d)
In accordance with Health and Safety Code, §245.023(c),
the department shall maintain a toll-free telephone number that a person may
call to obtain the information described by subsection (b) of this section.
(e)
This section does not authorize the department to the release
of the name, address, or phone number of any employee or patient of an abortion
facility or of a physician who provides services at an abortion facility.
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 January 16, 2004.
TRD-200400345
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 5, 2004
Proposal publication date: November 14, 2003
For further information, please call: (512) 458-7236
25 TAC §§139.21 - 139.25
The amendments are adopted under the Health and Safety Code,
Chapter 245, Health and Safety Code, Chapter 171, and the Health and Safety
Code, §12.001, which provide the Texas Board of Health (board) with the
authority to adopt rules for its procedures and for the performance of each
duty imposed by law on the board, the department, or the commissioner of health.
The review of these rules implements Government Code, §2001.039.
§139.22.Fees.
(a)
The schedule of fees for an abortion facility license for
all new, change of ownership, and renewal applications received prior to January
1, 2005, is as follows:
(1)
initial license fee--$2,500;
(2)
renewal license fee--$2,500; and
(3)
change of ownership license fee--$2,500.
(b)
Fees for renewal licenses issued January 1, 2005, through
December 31, 2005, will be either $2,500 for one year or $5,000 for two years.
The licensure period will be determined by the department prior to the licensure
renewal date.
(c)
Fees for two-year renewals for an abortion facility license
for all initial, change of ownership, and renewal applications received on
or after January 1, 2006, are as follows:
(1)
initial license fee--$5000;
(2)
renewal license fee--$5000; and
(3)
change of ownership license fee--$5000.
(d)
The department will not consider an application as officially
submitted until the applicant pays the applicable licensing fee. The fee must
accompany the application form.
(e)
A license fee paid to the department is not refundable.
(f)
Any remittance submitted to the department in payment of
a required license fee must be in the form of a certified check, money order,
or personal check made payable to the Texas Department of Health.
(g)
For all applications and renewal applications, the department
is authorized to collect subscription and convenience fees, in amounts determined
by the TexasOnline Authority, to recover costs associated with application
and renewal application processing through TexasOnline, in accordance with
Texas Government Code, §2054.111.
(h)
The department may make periodic reviews of its license
fee schedule to ensure that the fees imposed are in amounts reasonable and
necessary to defray the cost to the department of administering the Act.
(i)
The department will assess an annual assessment fee as
follows.
(1)
In addition to application fees for initial, renewal, and
change of ownership license fees, an annual assessment fee per year will be
imposed by the department in amounts reasonable and necessary to defray costs.
(2)
The amount of the one time per year annual assessment fee
will be determined by the department on an annual basis.
(3)
Fees will be divided into three categories based on a three
year history:
(A)
the average per year of the previous three years reported
abortions equals less than 1000;
(B)
the average per year of the previous three years reported
abortions equals 1000 - 2999;
(C)
the average per year of the previous three years reported
abortions equals 3000 or more.
(4)
Facilities identified in each category will be assessed
a proportionate share of the costs.
(5)
Licensees receiving an initial license will be assessed
the least of the three fees in effect at the time of application for an initial
or change of ownership license. The additional annual assessment fee is due
at the same time as the application fee.
(6)
The department shall notify each licensee of the amount
assessed for the annual assessment fee by April 1, 2004, and by the first
day of April for each subsequent year.
(7)
The annual assessment fee must be received by the department
no later than June 1, 2004, and the first day of June for each subsequent
year.
(8)
A licensee who fails to pay the assessed annual assessment
fee will be subject to denial, revocation, probation, or suspension of a license
as prescribed in §139.32 of this title (relating to License Denial, Suspension,
Probation or Revocation).
§139.23.Application Procedures and Issuance of Licenses.
(a)
Purpose. This section establishes the application procedures
that an abortion facility must follow to obtain a license to operate as a
licensed abortion facility in Texas.
(b)
Definitions. The following terms when used in this section
shall have the following meaning.
(1)
Initial license--A license which is issued by the department
to all first-time applicants for an abortion facility license (including those
from unlicensed operating facilities and licensed facilities for which a change
of ownership is anticipated, that meet the requirements of the Act and this
chapter and have successfully completed the application procedures for an
initial license as set out in subsection (c) of this section. This license
expires 12 months after issuance up to January 1, 2005, and 24 months after
January 1, 2005.
(2)
Renewal license--A license issued by the department to
a licensed abortion facility that meets all requirements of the Act and this
chapter and has completed the application procedures for obtaining a renewal
license as set out in subsection (d) of this section. Renewal licenses issued
January 1, 2005, through December 31, 2005, will expire in either one or two
years, to be determined by the department prior to the time of license renewal.
Renewal licenses issued January 1, 2006, or after, will expire in two years.
(c)
Application procedures for an initial license. This subsection
establishes the application procedures for obtaining an initial license.
(1)
Request for an application. Upon request for an abortion
facility license, the Texas Department of Health (department) will furnish
a person with an application packet. Applications may also be obtained and
submitted through the department's web site.
(2)
Application requirements. The applicant shall submit the
information listed in subparagraph (C) of this paragraph to the department.
(A)
An applicant shall not misstate a material fact on any
documents required to be submitted under this subsection.
(B)
The application form must be accurate and complete and
must contain original signatures. The initial license fee must accompany the
application.
(C)
The following documents must be submitted with the original
application form prescribed by the department and shall be originals or notarized
copies:
(i)
information on the applicant including name, street address,
mailing address, social security number or Franchise Tax ID number, date of
birth, and driver's license number;
(ii)
the name, mailing address, and street address of the abortion
facility. The address provided on the application must be the address from
which the abortion facility will be operating and providing services;
(iii)
the telephone number of the facility, the telephone number
where the administrator can usually be reached when the facility is closed,
and if the facility has a fax machine, the fax number;
(iv)
a list of names and business addresses of all persons
who own any percentage interest in the applicant including:
(I)
each limited partner and general partner if the applicant
is a partnership; and
(II)
each shareholder, member, director, and officer if the
applicant is a corporation, limited liability company or other business entity;
(v)
a list of any businesses with which the applicant subcontracts
and in which the persons listed under clause (iv) of this subparagraph hold
any percentage of the ownership;
(vi)
if the applicant has held or holds an abortion facility
license or has been or is an affiliate of another licensed facility, the relationship,
including the name and current or last address of the other facility and the
date such relationship commenced and, if applicable, the date it was terminated;
(vii)
if the facility is operated by or proposed to be operated
under a management contract, the names and addresses of any person and organization
having an ownership interest of any percentage in the management company;
(viii)
a notarized affidavit attesting that the applicant is
capable of meeting the requirements of this chapter;
(ix)
an organizational structure of the staffing for the abortion
facility. The organizational structure shall include full disclosure in writing
of the names and addresses of all owners and persons controlling any ownership
interest in the abortion facility. In the case of corporations, holding companies,
partnerships, and similar organizations, the names and addresses of officers,
directors, and stockholders, both beneficial and of record, when holding any
percent, shall be disclosed. In the case of a non-profit corporation, the
names and addresses of the officers and directors shall be disclosed;
(x)
the name(s), address(es), and Texas physician license number(s)
of the physician(s) (including the facility's designated medical consultant),
and all midlevel providers who will provide services at the abortion facility;
(xi)
the following data concerning the applicant, the applicant's
affiliates, and the managers of the applicant:
(I)
denial, suspension, probation, or revocation of an abortion
facility license in any state, a license for any health care facility or a
license for a home and community support services agency (agency) in any state;
or any other enforcement action, such as (but not limited to) court civil
or criminal action in any state;
(II)
denial, suspension, probation, or revocation of or other
enforcement action against an abortion facility license in any state, a license
for any health care facility in any state, or a license for an agency in state
which is or was proposed by the licensing agency and the status of the proposal;
(III)
surrendering a license before expiration of the license
or allowing a license to expire in lieu of the department proceeding with
enforcement action;
(IV)
federal or state (any state) criminal felony arrests or
convictions;
(V)
federal or state Medicaid or Medicare sanctions or penalties
relating to the operation of a health care facility or agency;
(VI)
operation of a health care facility or agency that has
been decertified or terminated from participation in any state under Medicare
or Medicaid; or
(VII)
debarment, exclusion, or contract cancellation in any
state from Medicare or Medicaid; and
(xii)
for the two-year period preceding the application date,
the following data concerning the applicant, the applicant's affiliates, and
the managers of the applicant:
(I)
federal or state (any state) criminal misdemeanor arrests
or convictions;
(II)
federal or state (any state) tax liens;
(III)
unsatisfied final judgments;
(IV)
eviction involving any property or space used as an abortion
facility or health care facility in any state;
(V)
injunctive orders from any court; or
(VI)
unresolved final federal or state (any state) Medicare
or Medicaid audit exceptions.
(3)
Applicant copy. The applicant shall retain a copy of all
documentation that is submitted to the department.
(4)
Application processing. Upon the department's receipt of
the application form, the required information described in paragraph (2)(C)
of this subsection, and the initial license fee from an applicant, the department
shall review the material to determine whether it is complete and correct.
(A)
The time periods for reviewing the material shall be in
accordance with §139.25 of this title (relating to Time Periods for Processing
and Issuing a License).
(B)
If an abortion facility receives a notice from the department
that some or all of the information required under paragraph (2)(C) of this
subsection is deficient, the facility shall submit the required information
no later than six months from the date of the notice.
(i)
A facility which fails to submit the required information
within six months from the notice date is considered to have withdrawn its
application for an initial license. The license fee will not be refunded.
(ii)
A facility which has withdrawn its application must reapply
for a license in accordance with this section, if it wishes to continue the
application process. A new license fee is required.
(5)
Withdrawal from the application process. If an applicant
decides at any time not to continue the application process for an initial
license, the application will be withdrawn upon written request from the applicant.
(6)
Issuance of an initial license.
(A)
The time periods for processing an initial application
shall be in accordance with §139.25 of this title.
(B)
Effective period of an initial license. The initial license
is valid for 12 months up to January 1, 2005, and 24 months after January
1, 2005. The initial license expires on the last day of the month ending the
licensure period.
(C)
Pre-inspection. Once the department has determined that
the application form, the information required to accompany the application
form, and the initial license fee are complete and correct, the department
shall schedule a pre-inspection conference with the applicant in order to
inform the applicant or his or her designee of the standards for the operation
of the abortion facility. The department, at its discretion, may waive the
pre-inspection conference. Upon recommendation by the pre-inspection conference,
the department will issue an initial license to the facility.
(D)
Pre-inspection recommendation. After the pre-inspection
conference has been held, the department will:
(i)
issue an initial license to the owner of a facility, if
the facility is found to be in compliance with the department's requirements
for initial licensure; or
(ii)
deny the application if the facility has not complied
with the department's requirements for issuing an initial license. The procedure
for denial of a license shall be in accordance with §139.32 of this title
(relating to License Denial, Suspension, Probation, or Revocation).
(7)
A department representative shall inspect the abortion
facility in accordance with §139.31 of this title (relating to On-Site
Inspections and Complaint Investigations of a Licensed Abortion Facility)
within 60 days after the issuance of an initial license. If the department
determines that a facility is not in compliance with the provisions of the
Act or this chapter after the initial onsite inspection, the department shall
notify the facility. Notification shall be in accordance with §139.32
of this title.
(8)
If for any reason, an applicant decides not to continue
the application process, the applicant must submit to the department a written
request to withdraw its application. If an initial license has been issued,
the applicant shall cease providing abortion services and return the initial
license to the department with its written request to withdraw. The department
shall acknowledge receipt of the request to withdraw. The license fee will
not be refunded.
(9)
Continuing compliance by the abortion facility with the
provisions of the Act and this chapter is required during the initial license
period.
(d)
Application procedures for renewal of a license.
(1)
The department will send notice of expiration of a license
to the licensee at least 60 days before the expiration date of the license.
If the licensee has not received notice of expiration from the department
45 days prior to the expiration date, it is the duty of the licensee to notify
the department and request an application for a renewal license.
(2)
The licensee shall submit the following items to the department
by certified mail, marked confidential, and postmarked no later than 30 days
prior to the expiration date of the license:
(A)
a complete and accurate renewal application form;
(B)
current updated documents containing all the information
required in subsection (c)(2)(C) of this section; and
(C)
the renewal license fee.
(3)
A facility shall not misstate a material fact on any documents
required to be submitted to the department or required to be maintained by
the facility in accordance with the provisions of the Act and this chapter.
(4)
A department surveyor shall inspect a licensed abortion
facility in accordance with §139.31(b) of this title.
(5)
If a licensee makes timely and sufficient application for
renewal, the license will not expire until the department issues the renewal
license or until the department denies renewal of the license.
(A)
The department shall issue a renewal license to a licensee
who meets the minimum standards for a license in accordance with the provisions
of the Act and this chapter.
(B)
The department may propose to deny the issuance of a renewal
license if:
(i)
based on the inspection report, the department determines
that the abortion facility does not meet or is in violation of any of the
provisions of the Act or this chapter;
(ii)
renewal is prohibited by the Texas Education Code, §57.491,
relating to defaults on guaranteed student loans;
(iii)
a facility discloses any of the actions or offenses listed
in subsection (c)(2)(C)(xi) and (xii) of this section; and
(iv)
a facility fails to file abortion reports in accordance
with §139.4 of this title (relating to Annual Reporting Requirements
for All Abortions Performed) or fails to ensure that the physicians report
in accordance with §139.5 of this title (relating to Additional Reporting
Requirements for Physicians).
(6)
If a licensee makes a timely application for renewal of
a license, and action to revoke, suspend, place on probation, or deny renewal
of the license is pending, the license does not expire but does extend until
the application for renewal is granted or denied after the opportunity for
a formal hearing. A renewal license will not be issued unless the department
has determined the reason for the proposed action no longer exists.
(7)
If a suspension of a license overlaps a renewal date, the
suspended license holder shall comply with the renewal procedures in this
subsection; however, the department may not renew the license until the department
determines that the reason for suspension no longer exists.
(8)
If the department revokes or does not renew a license,
a person may apply for an initial license by complying with the requirements
of the Act and this chapter at the time of reapplication. The department may
refuse to issue a license if the reason for revocation or nonrenewal continues
to exist.
(9)
Upon revocation or nonrenewal, a license holder shall return
the original license to the department.
(10)
The procedures for revocation, suspension, probation,
or denial of a license shall be in accordance with §139.32 of this title.
(e)
Failure to timely renew a license.
(1)
If a licensee fails to timely renew a license in accordance
with subsection (d) of this section, the department shall notify the licensee
that the facility must cease operation on the expiration date of the license.
(2)
To continue providing services at the abortion facility
after the expiration of the license, the owner must apply for an initial license
in accordance with subsection (c) of this section.
(f)
Frequency of inspections. Inspections of the abortion facility
shall be performed at a frequency prescribed by and in accordance with §139.31
of this title (relating to On-Site Inspections and Complaint Investigations
of a Licensed Abortion Facility).
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 January 16, 2004.
TRD-200400346
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 5, 2004
Proposal publication date: November 14, 2003
For further information, please call: (512) 458-7236
25 TAC §§139.31 - 139.33
The amendments are adopted under the Health and Safety Code,
Chapter 245, Health and Safety Code, Chapter 171, and the Health and Safety
Code, §12.001, which provide the Texas Board of Health (board) with the
authority to adopt rules for its procedures and for the performance of each
duty imposed by law on the board, the department, or the commissioner of health.
The review of these rules implements Government Code, §2001.039.
§139.31.On-site Inspections and Complaint Investigations of a Licensed Abortion Facility.
(a)
General. An on-site inspection shall determine if the requirements
of the Act and this chapter are being met.
(1)
An authorized representative of the department (surveyor)
may enter the premises of a licensed abortion facility at reasonable times
during business hours and at other times as it considers necessary to ensure
compliance with:
(A)
the Act and this chapter;
(B)
an order of the commissioner of health (commissioner);
(C)
a court order granting injunctive relief; or
(D)
other enforcement actions.
(2)
The surveyor is entitled to access all books, records,
or other documents maintained by or on behalf of the facility to the extent
necessary to ensure compliance with the Act, this chapter, an order of the
commissioner, a court order granting injunctive relief, or other enforcement
action. The department shall maintain the confidentiality of facility records
as applicable under federal or state law. Ensuring compliance includes permitting
photocopying by a department surveyor or providing photocopies to a department
surveyor of any records or other information by or on behalf of the department
as necessary to determine or verify compliance with the Act or this chapter.
(3)
By applying for or holding a license, the facility consents
to entry and inspection of the facility by the department or representative
of the department in accordance with the Act and this chapter.
(b)
Inspection procedures.
(1)
All onsite inspections will be unannounced and conducted,
at least, annually.
(2)
The department's surveyor shall hold a conference with
the person who is in charge of a licensed abortion facility prior to commencing
the inspection for the purpose of explaining the nature and scope of the inspection.
The surveyor shall hold an exit conference with the person who is in charge
of the facility when the inspection is completed, and the surveyor shall identify
any records that were duplicated. Any original facility records that are removed
from a facility shall be removed only with the consent of the facility.
(3)
The department's authorized representative shall hold an
exit conference and fully inform the person who is in charge of the facility
of the preliminary finding(s) of the inspection and shall give the person
a reasonable opportunity to submit additional facts or other information to
the surveyor in response to those findings. The response shall be made a part
of the inspection for all purposes and must be received by the department
within 14 calendar days of receipt of the preliminary findings of the inspection
by the facility.
(4)
After the inspection is completed, the department shall
provide the administrator of the facility specific and timely written notice
of the findings of the inspection in accordance with paragraph (7) of this
subsection.
(5)
If the department determines that the facility is in compliance
with minimum standards at the time of the on-site inspection, the department
will send a license to the facility, if applicable.
(6)
If the surveyor finds there are deficiencies, the department
shall provide the facility with a statement of the deficiencies; the surveyor's
recommendation for further action; or if there are no deficiencies found,
a statement indicating this fact.
(7)
If the department representative finds there are deficiencies,
the facility and the department shall comply with the following procedure.
(A)
The department shall provide the facility with a statement
of deficiencies onsite at the time of the exit conference or within 14 calendar
days of the exit conference.
(B)
The facility administrator or person in charge shall sign
the written statement of deficiencies and return it to the department with
its plan of correction(s) for each deficiency within 14 calendar days of its
receipt of the statement of deficiencies. The signature does not indicate
the person's agreement with deficiencies stated on the form.
(C)
The facility shall have the option to challenge any deficiency
cited after receipt of the statement of deficiencies. A challenge to a deficiency(ies)
shall be in accordance with this subparagraph.
(i)
An initial challenge to a deficiency(ies) shall be submitted
in writing no later than 14 calendar days from the facility's receipt of the
statement of deficiencies to the program director for abortion facility licensing,
Health Facility Licensing and Compliance Division, Texas Department of Health,
1100 West 49th Street, Austin, Texas 78756-3199. The initial written challenge
shall include any and all documents supporting the facility's position.
(ii)
If the initial challenge is favorable to the department,
the facility may request a review of the initial challenge by submitting a
written request to the Director, Health Facility Licensing and Compliance
Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas
78756-3199. The facility shall submit its written request for review of the
initial challenge no later than 14 calendar days of its receipt of the department's
response to the initial challenge. The department will not accept or review
any documents that were not submitted with the initial challenge. A determination
by the Director, Health Facility Licensing and Compliance Division, relating
to a challenge to a deficiency(ies) will be considered the final determination
by the department.
(iii)
The department shall respond to any written challenge
submitted under clauses (i) or (ii) of this subparagraph no later than 14
calendar days from its receipt.
(D)
The department shall determine if the written plan of correction
is acceptable. If the plan of correction(s) is not acceptable to the department,
the department shall notify the facility and request that the plan of correction
be modified by telephone or resubmitted no later than 14 calendar days from
receipt of such request by the facility.
(E)
If the facility does not come into compliance by the required
date of correction, the department may propose to deny, suspend, place on
probation, or revoke the license in accordance with §139.32 of this title
(relating to License Denial, Suspension, Probation, or Revocation).
(F)
Acceptance of a plan of correction by the department does
not preclude the department from taking enforcement action as appropriate
under §139.32 of this title.
(8)
The department shall refer issues and complaints relating
to the conduct or action(s) by licensed health care professionals to their
appropriate licensing boards.
(c)
Complaints.
(1)
In accordance with §139.50 of this title (relating
to Disclosure Requirements), all licensed abortion facilities are required
to provide the patient and her guardian, if present, if the patient is a minor
at time of the initial visit or if guardianship is required, with a written
statement that complaints relating to the abortion facility may be registered
with the Director, Health Facility Licensing and Compliance Division, Texas
Department of Health, 1100 West 49th Street, Austin, Texas 78756-3199.
(2)
The department will evaluate all complaints against licensed
abortion facilities. All complaints submitted to the department must be in
writing and signed by the complainant. Only those allegations determined to
be relevant to the Act or this chapter will be authorized for investigation.
All information pertaining to a complaint is strictly confidential.
(3)
The department or its authorized representative may enter
the premises of an abortion facility during normal business hours as necessary
to assure compliance with the Act and this chapter. The investigation may
be conducted on-site, by phone or by mail.
(4)
Conduct of the on-site investigation of a licensed abortion
facility will include, but not be limited to:
(A)
a conference prior to commencing the on-site investigation
for the purpose of explaining the nature and scope of the investigation between
the department's authorized representative and the administrator of the abortion
facility, or his or her designee;
(B)
an inspection of the facility;
(C)
an inspection of medical records, personnel records, administrative
files, reports, other records, and/or working papers;
(D)
an interview with any physician or other health care practitioner,
including abortion facility personnel who care for the recipient of abortion
services;
(E)
a conference at the conclusion of the inspection between
the department's representative and the administrator or his or her designee
of the facility; and
(F)
identification by the department's representative of any
facility documents that have been reproduced.
(5)
If the department finds that there are deficiencies following
the on-site inspection, the provisions of subsection (b)(6) and (7) of this
section will apply.
(6)
The department will review the report of the investigation
and determine the validity of the complaint.
§139.32.License Denial, Suspension, Probation, or Revocation.
(a)
The department may refuse to issue or renew a license for
a facility if the facility fails to comply with any provisions of the Act,
or Health and Safety Code, Chapters 245 and 171.
(b)
The department may suspend, place on probation, or revoke
the license of a facility for one or more of the following reasons:
(1)
the facility commits fraud, misrepresentation, or concealment
of a material fact on any documents required to be submitted to the department
or required to be maintained by the facility pursuant to the Act;
(2)
the facility or any of its employees materially alters
any license issued by the department;
(3)
the facility or its employees commits an act which causes
immediate jeopardy to the health and safety of a patient;
(4)
the facility is cited for deficiencies and fails to submit
an acceptable plan of correction in accordance with this chapter;
(5)
the facility has been cited for deficiencies and fails
to timely comply with minimum standards for licensure within the dates designated
in the plan of correction;
(6)
the facility or any of its employees has aided, abetted,
or permitted the commission of an illegal act;
(7)
the facility or any of its employees fails to comply with
any provisions of the Act or this chapter;
(8)
the facility is not in compliance with minimum standards
for licensure;
(9)
the facility fails to provide the required application
or renewal information;
(10)
the facility fails to comply with an order of the commissioner
of health or another enforcement procedure under the Act;
(11)
the facility discloses an action described in §139.23(c)(2)(C)(xii)
and (xiii) of this title (relating to Application Procedures and Issuance
of Licenses);
(12)
the facility knowingly employs as the facility administrator
or chief financial officer an individual who was convicted of a felony or
misdemeanor listed in subsection (c) of this subsection;
(13)
has a history of failure to comply with the rules adopted
under this chapter; or
(14)
has aided, abetted or permitted the commission of an illegal
act;
(c)
The department may deny a person a license or suspend or
revoke an existing license on the grounds that the person has been convicted
of a felony or misdemeanor that directly relates to the duties and responsibilities
of the ownership or operation of a facility.
(1)
In determining whether a criminal conviction directly relates
to the duties and responsibilities of the ownership or operation of a licensed
abortion facility, and in determining the fitness of a person who has been
convicted of a crime to perform such duties and responsibilities, the department
shall consider the provisions of Texas Occupations Code, Chapter 53.
(2)
The department is entitled to obtain criminal history information
maintained by the Texas Department of Public Safety (Government Code, §411.122),
the Federal Bureau of Investigation Identification Division (Government Code, §411.087),
or any other law enforcement agency to investigate the eligibility of an applicant
for an initial or renewal license and to investigate the continued eligibility
of a licensee.
(3)
The following felonies and misdemeanors directly relate
to the duties and responsibilities of the ownership or operation of a licensed
abortion facility because these criminal offenses demonstrate impaired ability
to own or operate a facility:
(A)
a misdemeanor violation of Health and Safety Code (HSC),
Chapter 244;
(B)
a misdemeanor or felony involving moral turpitude;
(C)
a misdemeanor or felony relating to deceptive business
practices;
(D)
a misdemeanor or felony of practicing any health-related
profession without a required license;
(E)
a misdemeanor or felony under any federal or state law
relating to drugs, dangerous drugs, or controlled substances;
(F)
a misdemeanor or felony under the Texas Penal Code (TPC),
Title 5, involving a patient or client of any health care facility, a home
and community support services agency or a health care professional;
(G)
a misdemeanor or felony under the TPC:
(i)
Title 4 - offenses of attempting or conspiring to commit
any of the offenses in this clause;
(ii)
Title 5 - offenses against the person;
(iii)
Title 7 - offenses against property;
(iv)
Title 8 - offenses against public administration;
(v)
Title 9 - offenses against public order and decency;
(vi)
Title 10 - offenses against public health, safety or morals;
(vii)
Title 11 - offenses involving organized crime.
(4)
Offenses listed in paragraph (3) of this subsection are
not exclusive in that the department may consider similar criminal convictions
from other state, federal, foreign or military jurisdictions which indicate
an impaired ability or tendency for the person to be unable to own or operate
a facility.
(5)
A license holder's license shall be revoked on the license
holder's imprisonment following a felony conviction, felony community supervision
revocation, revocations of parole, or revocation of mandatory supervision.
(d)
All proceedings for the denial, suspension, probation,
or revocation of a license under this section will be conducted at the State
Office of Administrative Hearings, and in accordance with Chapter 245 of the
Texas Health and Safety Code, Chapter 2001 of the Texas Government Code, and
the Formal Hearing Procedures of the Texas Department of Health (Texas Administrative
Code, Title 25, Part 1).
(e)
A person who has had a facility license revoked under this
section may not apply for a license under this chapter for one year following
the date of revocation.
(f)
After an inspection in which deficiencies were cited by
the surveyor, a facility may submit its license for voluntary cancellation
in lieu of the department proceeding with enforcement action. The department
may accept such submission or reject it and proceed with an enforcement action.
The facility, its owner(s), and its affiliates may not reapply for a license
for six months from the date of the surrender or expiration.
(g)
If the department suspends a license, the suspension shall
remain in effect until the department determines that the reason for suspension
no longer exists. A department surveyor shall conduct an inspection of the
facility prior to making a determination.
(1)
During the time of suspension, the suspended license holder
shall return the original license certificate to the department.
(2)
If a suspension overlaps a renewal date, the suspended
license holder shall comply with the renewal procedures in this chapter; however,
the department may not renew the license until the department determines that
the reason for suspension no longer exists.
(3)
If suspension is for more than one year, the suspended
license holder may apply to the department for cancellation of the suspension
only after one year following the initial date of the suspension.
(h)
If the department revokes or does not renew a license,
a person may reapply for a license (subject to subsection (d) of this section),
by complying with the requirements and procedures in this chapter at the time
of reapplication. The department may refuse to issue a license if the reason
for revocation or non-renewal continues to exist and may consider the enforcement
history of the applicant, administrator or clinical director in making such
a determination.
(i)
Upon revocation or non-renewal, a license holder shall
return the original license certificate to the department.
(j)
Upon a licensee's felony conviction, felony probation revocation,
revocation of parole, or revocation of mandatory supervision, the license
shall be revoked.
(k)
If the department finds that a licensed abortion facility
is in repeated noncompliance with Health and Safety, Chapter 245, or rules
adopted under this chapter, but the noncompliance does not in any way involve
the health and safety of the public or an individual, the department may schedule
the facility for probation rather than suspending or revoking the facility's
license.
(l)
The department may suspend or revoke the license of a licensed
abortion facility that does not correct items that were in noncompliance or
that does not comply with Health and Safety Code, Chapter 245, or rules adopted
under this chapter within the applicable probation period.
(m)
The department may suspend or revoke a license to be effective
immediately when a situation(s) is identified that poses immediate jeopardy
to the health and safety of person(s) at the facility.
(1)
The department shall immediately give the licensee adequate
notice of the action taken, the legal grounds for the action, and the procedure
governing appeal of the action.
(2)
The department shall set a hearing date not later than
the 14th day after the effective date of the suspension or revocation.
(3)
The department shall also notify the facility in writing
of the emergency action, the legal grounds for the action, the effective date
of the emergency action, the procedure governing appeal of the action, and
the date set for the hearing. This notice shall be sent by certified mail,
return receipt requested, or by personal delivery. The hearing shall be conducted
at the State Office of Administrative Hearings, and pursuant to the Texas
Health and Safety Code, Chapter 245, Texas Government Code, Chapter 2001 and
the department's formal hearing procedures set out in Chapter 1 of this title.
(n)
If a person violates the licensing requirements of the
Act or rules adopted under the Act, the department may petition the district
court for a temporary restraining order to restrain the person from continuing
the violation or operating without a license.
(o)
If a person operates a facility without a license as required
by this chapter and the Act, the person is liable for a civil penalty of not
less than $1,000 nor more than $2,500 for each day of violation.
(p)
If a facility has had enforcement action taken by the department
against it, the facility, its owner(s), or its affiliate(s) may not apply
for a facility license for one year following the effective date of the enforcement
action. For purposes of this subsection only, the term "enforcement action"
means license revocation, suspension, emergency suspension, or denial or injunctive
action but does not include administrative penalties or civil penalties. If
the department prevails in one enforcement action (e.g., injunctive action)
against the facility but also proceeds with another enforcement action (e.g.,
revocation) based on some or all of the same violations, but the department
does not prevail in the second enforcement action (e.g., the facility prevails),
the prohibition in this paragraph does not apply.
(q)
If the department suspends a license, the suspension shall
remain in effect until the department determines that the reason for suspension
no longer exists. An authorized representative of the department shall conduct
an on-site inspection of the facility prior to making a determination.
(1)
During the time of suspension, the suspended license holder
shall return the original license to the department.
(2)
If a suspension overlaps a renewal date, the suspended
license holder shall comply with the renewal procedures in this chapter; however,
the department may not renew the license until the department determines that
the reason for suspension no longer exists.
(3)
If suspension is for more than one year, the suspended
license holder may apply to the department for cancellation of the suspension
only after one year following the initial date of the suspension.
(r)
If the department revokes or does not renew a license and
the one-year period described in subsection (p) of this section has passed,
a person may reapply for a license by complying with the requirements and
procedures in this chapter at the time of reapplication. The department may
refuse to issue a license if the reason for revocation or nonrenewal continues
to exist.
(s)
Upon revocation or nonrenewal, a license holder shall return
the license to the department.
(t)
After an on-site inspection in which deficiencies were
cited by the surveyor, a facility may surrender its license before expiration
or allow its license to expire in lieu of the department proceeding with enforcement
action. A facility may surrender before the expiration date by returning its
original license to the department. If a facility surrenders or allows expiration
of the license, the facility, its owner(s), and its affiliates may not reapply
for a license for six months from the date of the surrender or expiration.
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 January 16, 2004.
TRD-200400347
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 5, 2004
Proposal publication date: November 14, 2003
For further information, please call: (512) 458-7236
25 TAC §139.34
The repeal is adopted under the Health and Safety Code, Chapter
245, Health and Safety Code, Chapter 171, and the Health and Safety Code, §12.001,
which provide the Texas Board of Health (board) with the authority to adopt
rules for its procedures and for the performance of each duty imposed by law
on the board, the department, or the commissioner of health. The review of
these rules 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 January 16, 2004.
TRD-200400348
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 5, 2004
Proposal publication date: November 14, 2003
For further information, please call: (512) 458-7236
25 TAC §§139.41 - 139.60
The amendments are adopted under the Health and Safety Code,
Chapter 245, Health and Safety Code, Chapter 171, and the Health and Safety
Code, §12.001, which provide the Texas Board of Health (board) with the
authority to adopt rules for its procedures and for the performance of each
duty imposed by law on the board, the department, or the commissioner of health.
The review of these rules implements Government Code, §2001.039.
§139.41.Policy Development and Review.
(a)
The licensee shall be responsible for the conduct of the
licensed abortion facility and shall assume full legal responsibility for
developing, implementing, enforcing, and monitoring written policies governing
the facility's total operation and for ensuring that these policies comply
with the Act and the applicable provisions of this chapter and are administered
so as to provide health care in a safe and professionally acceptable environment.
These written polices shall include at a minimum the following:
(1)
administrative policies governing the administration of
the facility, covering at a minimum:
(A)
personnel;
(B)
employee orientation, training, and evaluation;
(C)
employee and patient record system;
(D)
auditing system for monitoring state or federal funds;
(E)
advertisements for the facility;
(F)
accuracy of public education information materials and
activities in relation to abortion, birth control, and sexually-transmitted
diseases;
(G)
patient education/information services and referral services;
(H)
reporting requirements; and
(I)
procedures for the resolution of complaints regarding care
or services rendered by licensed health professionals and other members of
the facility staff, including contract services or staff. The facility shall
document the receipt and the disposition of the complaint. The investigation
and documentation must be completed within 30 calendar days after the facility
receives the complaint, unless the facility has and documents reasonable cause
for a delay.
(2)
clinical policies governing medical and clinical practices
and procedures of the facility, covering at a minimum:
(A)
the provision of medical and clinical services;
(B)
the provision of laboratory services;
(C)
examination of fetal tissue;
(D)
disposition of medical waste;
(E)
emergency services;
(F)
condition on discharge procedures;
(G)
clinical records;
(H)
reporting and filing requirements; and
(I)
monitoring postprocedure infection(s).
(3)
a policy to ensure that the facility is in compliance with
fire safety provisions as required by the local codes;
(4)
policies on decontamination, disinfection, and sterilization,
and storage of sterile supplies;
(5)
policies for parental notice for unemancipated pregnant
minors as stipulated in Family Code, Chapter 33;
(6)
policies for informed consent as stipulated in Health and
Safety Code, Chapter 171, the Woman's Right to Know Act;
(7)
policies for reporting suspected abuse or neglect as stipulated
in Family Code, Chapter 261; and
(8)
policies to ensure all women who present to obtain an abortion
provide identification that includes the woman's date of birth.
(A) If the woman does not have identification stating her date
of birth, she will be required to execute an affidavit on a form published
by the department indicating that she does not have appropriate identification
and indicating her date of birth on the affidavit.
Figure: 25 TAC §139.41(a)(8)(A)
(B) The facility will keep a copy of the identification presented
or the affidavit in its files.
(b) The licensee, in fulfilling its responsibility under subsection
(a) of this section, shall review the facility's written policies and procedures
periodically, but no less than once every two years; date to indicate time
of last review; revise as necessary; and enforce.
§139.43.Personnel Policies.
The licensee shall develop, implement and enforce policies which shall
govern all personnel staffed by the facility using the following minimum criteria:
(1)
job descriptions, including qualifications for all personnel
providing direct or indirect patient care;
(2)
a requirement for orientation of all employees, volunteers,
students and contractors to the policies and objectives of the facility and
participation by all personnel in employee training specific to their job;
(3)
job-related training for each position;
(4)
a requirement for an annual evaluation of employee performance;
(5)
in service and continuing education requirements;
(6)
a requirement that all personnel providing direct patient
care be currently certified in basic life support by the American Heart Association,
the American Red Cross, or the American Safety and Health Institute, or in
accordance with their individual professional licensure requirements, and
if required in their job description or job responsibilities;
(7)
a requirement that all personnel having direct contact
with patients (employed or contracting with the facility) sign a statement
that they have read, understand, and will respect the rights of all patients
as established in §139.51 of this title (relating to Patient Rights at
the Facility); and
(8)
a requirement that all personnel complete a training program
developed jointly by the department and the Department of Protective and Regulatory
Services (DPRS) concerning their individual duties to report child abuse,
how to identify and recognize abuse, and the jurisdiction of DPRS and local
law enforcement over child abuse.
§139.50.Disclosure Requirements.
(a)
At the time of a woman's initial consultation with a licensed
abortion facility, the facility shall comply with the following.
(1)
Provide the woman with a written statement indicating the
number of the toll-free telephone line which is maintained by the department
to provide specific information relating to licensed abortion facilities in
Texas. The statement shall be in accordance with §139.6 of this title
(relating to Public Information; Toll-free Telephone Number).
(2)
Provide the woman with a written statement identifying
the department as the responsible agency for facility complaint investigations.
The statement shall inform persons to register complaints with the Director,
Health Facility Licensing and Compliance Division, Texas Department of Health,
1100 West 49th Street, Austin, Texas 78756. Complaints must be registered
with the department in writing. A complainant must provide his/her name. All
complaints shall be confidential.
(3)
Provide the woman with a copy of the department's "A Woman's
Right to Know" booklet created for women seeking an abortion, if the woman
chooses to view it.
(4)
Provide the woman with a copy of the department's "A Woman's
Right to Know" resource directory (required by Health and Safety Code, §171.015),
if the woman chooses to view it.
(5)
Inform the woman of her option to view the department's
"A Woman's Right to Know" booklet and resource directory on the world wide
web and provide her with the internet address for obtaining the information.
(6)
Provide the woman with a written statement that she may
call the department at (888) 973-0022 if the facility does not provide her
with the information required in paragraphs (3) and (4) of this subsection.
(b)
The facility shall ensure that the woman has been provided
with all information required for voluntary and informed consent, as mandated
by HSC, §171.012(a)(1)-(2) at least 24 hours prior to the abortion procedure.
(c)
The facility shall initiate a clinical record for the woman
at the time of the initial consultation. The following information pertaining
to disclosure, as described in this section, must be documented in the clinical
record:
(1)
the date and time of the initial consultation;
(2)
the method by the which the information required under
subsections (a) and (b) of this section was provided; and
(3)
the name and title of individual(s) who provided or verified
the information required under subsections (a) and (b) of this section.
§139.51.Patient Rights at the Facility.
A licensed abortion facility shall ensure that all patients:
(1)
be allowed to make her own choice and self-determination;
(2)
are ensured the right to personal privacy and confidentiality
of her choices and decisions;
(3)
are ensured the right to voluntary and informed consent
as defined in Health and Safety Code (HSC), §171.012, without paying
a fee for the informational materials;
(4)
are ensured individual counseling concerning private medical
information and to be given a private opportunity to ask questions;
(5)
be allowed to view their medical record, including the
sonogram, if one has been performed, at any time as provided by law;
(6)
have access to care and treatment consistent with available
resources and generally accepted standards regardless of race, creed, and
national origin;
(7)
are allowed to ask additional questions after giving consent
and to withdraw consent while still medically safe to do so;
(8)
are provided freedom from abuse, neglect, or exploitation
as those terms are defined in §1.204 of this title (relating to Abuse,
Neglect, or Exploitation Defined); and
(9)
be allowed to review the department's informational materials
as described in HSC, §§171.014 and 171.015.
§139.52.Patient Education/Information Services.
(a)
A licensed abortion facility shall ensure patient education/information
services are provided to each patient to:
(1) ensure compliance with Health and Safety Code, §§171.011
and 171.012, concerning informed consent by utilizing the department's certification
form, signed by the woman prior to an abortion procedure, and maintained in
the patient's clinical record;
(2) prepare the patient for surgery in a manner that facilitates
her safety and comfort;
(3) assist the patient in reaching a decision about the method
of post-procedure birth control she will use, if any, and respect her choices;
and
(4) ensure, when medically appropriate, the patient is advised
of the physician's obligation to take all reasonable steps to maintain the
life and health of a child who is born alive.
(b)
A licensed abortion facility shall, if needed, refer a
patient to a licensed mental health practitioner who provides therapeutic
intervention.
§139.58.Reporting Requirements.
A licensed abortion facility shall report a woman's death if it results
from a complication(s) of an abortion. The report shall be made by phone or
fax within one business day after the facility is notified of the death to
the director of Health Facility Licensing and Compliance Division, Texas Department
of Health, 1100 West 49th Street, Austin, Texas 78756, Telephone (512) 834-6646,
or Fax (512) 834-4514 or (512) 834-6709.
§139.59.Anesthesia Services.
(a)
Organization of anesthesia services. The organization of
anesthesia services shall be appropriate to the scope of the services offered.
(b)
General. A licensed abortion facility may provide various
levels of sedation/analgesia and/or general anesthesia as defined in subsection
(c) of this section. The patient may progress spontaneously from one level
to another. The determination of patient monitoring and staffing requirements
shall be based on the provisions set out in this section and the patient's
acuity and the potential response of the patient to the procedure.
(c)
Definitions.
(1)
Minimal sedation (anxiolysis)--A drug-induced state during
which patients respond normally to verbal commands. Although cognitive function
and coordination may be impaired, ventilatory and cardiovascular functions
are unaffected.
(2)
Moderate sedation/analgesia ("conscious sedation")--A drug-induced
depression of consciousness during which patients respond purposefully (reflex
withdrawal from a painful stimulus is NOT considered a purposeful response)
to verbal commands, either alone or accompanied by light tactile stimulation.
No interventions are required to maintain a patent airway, and spontaneous
ventilation is adequate. Cardiovascular function is usually maintained.
(3)
Deep sedation/analgesia--A drug-induced depression of consciousness
during which patients cannot be easily aroused but respond purposefully following
repeated or painful stimulation. The ability to independently maintain ventilatory
function may be impaired. Patients may require assistance in maintaining a
patent airway, and spontaneous ventilation may be inadequate. Cardiovascular
function is usually maintained.
(4)
General anesthesia--A drug-induced loss of consciousness
during which patients are not arousable, even by painful stimulation. The
ability to independently maintain ventilatory function is often impaired.
Patients often require assistance in maintaining a patent airway, and positive
pressure ventilation may be required because of depressed spontaneous ventilation
or drug-induced depression of neuromuscular function. Cardiovascular function
may be impaired.
(d)
Minimum staffing for the management of the various levels
of sedation/analgesia.
(1)
Minimal sedation (anxiolysis). The minimum staffing required
for administering minimal sedation (anxiolysis) and local anesthetic shall
include the physician and sufficient support staff to perform the procedure.
(2)
Moderate sedation/analgesia ("conscious sedation").
(A)
The minimum staffing required for administering moderate
sedation/analgesia ("conscious sedation") shall always include a minimum of:
(i)
a physician, trained and experienced in the use of moderate
sedation/analgesia ("conscious sedation"), airway management and resuscitation
to manage the care of the patient; and
(ii)
one trained, competent clinic staff person to monitor
the patient at all times in the procedure and recovery room.
(B)
The medical or nursing staff managing the anesthesia care
of the patient under moderate sedation/analgesia ("conscious sedation") shall
have no other responsibilities that would leave the patient unattended or
compromise continuous monitoring.
(3)
Deep sedation/analgesia.
(A)
The minimum staffing during deep sedation/analgesia shall
be in accordance with subsection (h) of this section.
(B)
The person qualified and performing the administration
of deep sedation/analgesia may not be the physician performing the procedure.
(4)
General anesthesia.
(A)
The minimum staffing during general anesthesia shall be
in accordance with subsection (i) of this section.
(B)
The person qualified and performing the administration
of general anesthesia may not be the physician performing the procedure.
(e)
Minimum training and knowledge.
(1)
Minimal sedation (anxiolysis). All staff members managing
the care of a patient under minimal sedation (anxiolysis) shall be certified
in basic life support (BLS) with bi-annual recertification.
(2)
Moderate sedation/analgesia ("conscious sedation").
(A)
The medical or nursing staff managing the care of a patient
receiving moderate sedation/analgesia ("conscious sedation") shall at a minimum
have the following:
(i)
training in BLS with bi-annual recertification;
(ii)
annual training in the recognition of the cardiovascular
and respiratory side effects of sedatives, as well as the variability of patient
response; and
(iii)
current knowledge of emergency supplies and equipment
inventory and their use.
(B)
The physician, physician extender, or nurse administering
the medications shall know the pharmacology of the medications administered.
(3)
Deep sedation/analgesia. The minimum training and knowledge
required for providing deep sedation shall be in accordance with subsection
(h) of this section.
(4)
General anesthesia. The minimum training and knowledge
required for providing general anesthesia shall be in accordance with subsection
(i) of this section.
(f)
Clinical and equipment standards for minimal sedation (anxiolysis)
and local anesthetic. For licensed facilities administering minimal sedation
(anxiolysis) or local anesthetic, the facility must have at a minimum, the
following emergency equipment for local anesthetic and/or light sedation management:
(1)
oxygen;
(2)
mechanical ventilatory assistance equipment that includes
airways and manual breathing bag;
(3)
the ability to monitor blood pressure;
(4)
emergency drugs as specified by the physician(s) on staff;
and
(5)
functioning oral suction machine apparatus.
(g)
Procedure room requirements for moderate sedation/analgesia
("conscious sedation") and deep sedation/analgesia.
(1)
Moderate sedation/analgesia ("conscious sedation"). The
minimum standards for the procedure room(s) where moderate sedation/analgesia
("conscious sedation") is administered are as follows.
(A)
The facility shall have the capability of monitoring blood
pressure and oxygen saturation as well as a functioning oral suction machine
apparatus.
(B)
All patients receiving moderate sedation/analgesia ("conscious
sedation") shall have a functional intravenous access in place. A functional
intravenous access shall be placed in a patient's vein prior to the procedure
and maintained until the patient has recovered from the effects of sedation
as determined by the person administering the sedation or the physician performing
the procedure.
(C)
Emergency supplies and equipment shall be readily accessible
and shall include the necessary drugs and equipment to resuscitate a non-breathing
and unconscious patient. There shall be documentation that all emergency equipment
and drugs are checked and maintained on a scheduled basis.
(D)
Pharmacological antagonist medications and staff trained
to administer these medications shall be readily available.
(2)
Deep sedation/analgesia. The minimum standards for the
procedure room where deep sedation/analgesia is administered shall be in accordance
with subsection (h) of this section.
(3)
General anesthesia. The minimum standards for the procedure
room where general anesthesia is administered shall be in accordance with
subsection (i) of this section.
(h)
Standards for administering deep sedation/analgesia.
(1)
A licensed abortion facility which provides deep sedation/analgesia
shall provide professional staff; equipment for the administration (of deep
sedation/analgesia); a post anesthesia care area; monitoring equipment for
procedure room and post anesthesia recovery area sufficient for the provision
of deep sedation/analgesia in accordance with the following American Society
for Anesthesiologists standards and guidelines:
(A)
Practice Guidelines for Sedation and Analgesia by Non-Anesthesiologists,
dated April 2002;
(B)
Standards, Guidelines, and Statements, dated October 2002,
specifically:
(i)
Basic Anesthetic Monitoring, dated October 21, 1986, as
amended October 21, 1998; and
(ii)
Standards for Post-Anesthesia Care, dated October 12,
1988, as amended October 19, 1994.
(2)
If the provisions contained in the guidelines listed in
paragraph (1) of this subsection conflict with this section, the provisions
of this section supersede.
(3)
Copies of the standards and guidelines are available for
review at the Texas Department of Health, Health Facility Licensing and Compliance
Division, Exchange Building, 8407 Wall Street, Austin, Texas 78754. Copies
may also be obtained by writing the American Society of the Anesthesiologists,
520 North West Highway, Park Ridge, Illinois 60068-2573; Internet www.ASAhq.org;
or by telephone at (847) 825-5586.
(i)
Standards for administering general anesthesia.
(1)
A licensed abortion facility which provides general anesthesia
shall provide professional staff; equipment for the administration of general
anesthesia; a post anesthesia care area; and monitoring equipment for procedure
room and post anesthesia recovery area sufficient for the provision of general
anesthesia. General anesthesia shall be provided in accordance with the following
American Society for Anesthesiologists standards and guidelines: American
Society of Anesthesiologists Standards, Guidelines, and Statements, dated
October 2002, specifically:
(A)
Guidelines for Office-Based Anesthesia, dated October 13,
1999;
(B)
Basic Standards for Pre-anesthesia Care, dated October
14, 1987;
(C)
Basic Anesthetic Monitoring, dated October 21, 1986, as
amended October 21, 1998;
(D)
Standards for Post-Anesthesia Care, dated October 12, 1988,
as amended October 19, 1994; and
(E)
Guidelines for Ambulatory Anesthesia and Surgery, dated
October 11, 1997, as amended October 21, 1998.
(2)
If the provisions contained in the guidelines listed in
paragraph (1) of this subsection conflict with this section, the provisions
of this section supersede.
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 January 16, 2004.
TRD-200400349
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 5, 2004
Proposal publication date: November 14, 2003
For further information, please call: (512) 458-7236
25 TAC §146.2
The Texas Department of Health (department) adopts an amendment
to §146.2, concerning the Promotor(a) or Community Health Worker Training
and Certification Advisory Committee. This section is adopted without changes
to the proposed text as published in the November 14, 2003, issue of the
The committee has provided advice to the Texas Board of Health (board)
and the department related to the review of applications and the recommendation
of qualifying applicants as sponsoring institutions, training instructors,
or as promotores(as) or community health workers. The committee also recommends
new or amended rules for the approval of the board. The committee was established
under the Health and Safety Code, §11.016, which allowed the board to
establish advisory committees. The committee is governed by the Government
Code, Chapter 2110, concerning state agency advisory committees.
This section amends provisions relating to the operation of the committee.
Specifically, the language is revised to improve the ability of the certification
program and to expedite the process of reviewing applications for certification
of promotores(as) or community health workers.
No public comments were received during the comment period for the rule.
The amendment is adopted under Health and Safety Code, §11.016,
which allows the board to establish advisory committees; §48.003, which
requires the board to adopt rules which "establish and operate a certification
program for persons who act as promotoras or community health workers."; §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;
and Government Code, §2110.005, which requires the department to adopt
rules stating the purpose and tasks of its advisory committees.
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 January 16, 2004.
TRD-200400362
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 5, 2004
Proposal publication date: November 14, 2003
For further information, please call: (512) 458-7236
25 TAC §159.1
The Texas Department of Health (department) adopts an amendment
to §159.1, concerning the reimbursement to tertiary care facilities and
Level IV trauma facilities. Section 159.1 is adopted without changes to the
proposed text as published in the November 14, 2003, issue of the
Texas Register
(28 TexReg 10077), and therefore the section will not
be republished.
The rule implements the Health and Safety Code, Chapter 46, §§46.001-46.007,
which identify the tertiary care account as a dedicated account in the general
revenue fund and delineate the department's responsibilities to allocate these
funds to compensate tertiary care facilities and Level IV trauma facilities
for the costs of unreimbursed tertiary medical and stabilization services.
Chapter 46 was unchanged by the 78th Legislature; however, no funds were
appropriated for reimbursement to facilities under Chapter 46. Therefore,
for state fiscal years 2004 and 2005, no applications for reimbursement will
be accepted by the department. In addition, the 78th Legislature amended one
of the statutory sources of the funds. House Bill 2292 (Chapter 198, 78th
Legislature, 2003), §2.34, deleted the mandate that some unclaimed lottery
prize money be placed in the tertiary care account.
Government Code, §2001.039, requires that each state agency review
and consider for re-adoption each rule adopted by that agency pursuant to
the Government Code, Chapter 2001 (Administrative Procedure Act). The department
has reviewed the section and has determined that reasons for adopting the
section continue to exist; however, a revision was needed in order to reflect
changes to program administration and the condition precedent of the appropriation
of funds. Although no funds are appropriated this biennium, since the reimbursement
law was not changed, the department wants to keep this section in case funds
are appropriated in later years.
The amendment expands upon the definition of tertiary medical services.
The amendment also clarifies that annual notification by the department to
facilities applies only if funds are appropriated for reimbursement and deletes
obsolete language in subsection (e) regarding fiscal year 2000.
The department published a Notice of Intention to Review for §159.1
in the
Texas Register
on October 10, 2003
(28 Tex Reg 8900). No comments were received.
No public comments were received during the comment period for the rules.
The amendment is adopted under the Health and Safety Code, Chapter
46, §46.004, which requires the department to adopt rules to govern the
collection of information from facilities on unreimbursed tertiary medical
and stabilization services; and the Health and Safety Code, §12.001,
which provides the Texas Board of Health (board) with authority to adopt rules
to implement every duty imposed by law on the board, the department, and the
commissioner of health. The review of these rules 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 January 16, 2004.
TRD-200400335
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 5, 2004
Proposal publication date: November 14, 2003
For further information, please call: (512) 458-7236
Subchapter B. TEXAS YOUTH CAMPS SAFETY AND HEALTH
25 TAC §265.26
The Texas Department of Health (department) adopts new §265.26,
concerning the prohibition of nudity at youth camps except in limited situations.
Section 265.26 is adopted with changes to the proposed text as published in
the August 22, 2003, issue of the
Texas Register
(28 TexReg 6693), as a result of comments received during the 30 day
comment period. Specifically, new §265.26 provides that a youth camp
may not allow campers or staffers to be nude except when bathing, showering,
changing clothing, or receiving medical attention. The new rule is necessary
for the department to carry out its responsibilities under the Texas Youth
Camp Safety and Health Act, Health and Safety Code, Chapter 141. The new rule
is not due to recent legislation, but is in response to published comments
from nudist associations that plan to operate nudist youth camps in Texas
during the 2004 camping season.
The following comments were received concerning the proposed new rule.
Following each comment is the department's response and any resulting change(s).
Comment: One commenter recommended extending the rule to camp staffers
and suggested more direct language for addressing nudity at youth camps.
Response: The department agreed and included the necessary language involving
camp staffers.
Comment: One commenter recommended extending the rule to cover nudity when
receiving medical attention.
Response: The department agreed and included the necessary language involving
medical attention.
The commenters were individuals representing the Camping Association for
Mutual Progress and Camp John Marc, a youth camp for children with special
medical needs. Both commenters were in favor of the new rule.
The new rule is adopted under the Health and Safety Code, §141.009,
which provides the Texas Board of Health (board) with the authority to adopt
rules to establish health and safety standards for youth camps; and the Health
and Safety Code, §12.001, which provides the board with the authority
to adopt rules for the performance of every duty imposed by law on the board,
the department, and the commissioner of health.
§265.26.Nudity Prohibited.
A youth camp may not allow campers or staff to be nude, except when
bathing, showering, changing clothing or receiving medical care.
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 January 16, 2004.
TRD-200400336
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 5, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 458-7236
Subchapter D. OCCUPATIONAL HEALTH RULES AND GUIDELINES
The Texas Department of Health (department) adopts the repeal of §§295.101-295.109,
concerning occupational health rules and guidelines, and new §295.101,
concerning recommended allowable concentrations of toxic gases that are being
made available to the public. The repeal of §§295.101-295.109 and
new §295.101 are adopted without changes to the proposed text as published
in the August 22, 2003, issue of the
Texas Register
(28 TexReg 6699), 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). Section 295.101
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; however, §295.101
needed revisions as described in this preamble and is adopted as a new section
under an amended subchapter heading. Sections 295.102-295.109 have been reviewed
and the department has determined that the reasons for adopting the sections
as rules no longer continue to exist.
A notice of intention to review for §§295.101-295.109 was published
in the January 5, 2001, issue of the
Texas Register
(26 TexReg 245) for the state agency review of rules in accordance
with Government Code, §2001.039. No comments were received by the department
on these sections.
The repeal of existing §295.101 and new §295.101 are adopted
in order to clarify the change in purpose of the section, remove obsolete
exposure limits for hazardous substances, and provide recommended allowable
concentrations of toxic gases. Sections 295.102-295.109 are repealed because
the sections were intended by the Legislature to serve only as guidance standards,
and publication of such information in rules limits the department's ability
to provide the most current recommended occupational health standards using
the most cost effective means. Guidance standards and other occupational safety
and health information will now be available to the public via the program's
website or by contacting the program at the address and telephone number provided
in new §295.101(d).
The new title for Subchapter D, "Occupational Health Guidelines," clarifies
that sections under this subchapter serve as occupational health guidelines,
rather than enforceable occupational standards for places of employment. New §295.101(a)
specifies that the information in the section is being provided in order to
meet the requirement specified in the Health and Safety Code (HSC), §341.016(c)(1),
for the department to provide the public with information on allowable concentrations
of toxic gases. This subsection also clarifies that the department's authority
to issue occupational standards is limited by the language in the Health and
Safety Code, §341.016(c)(2), and the fact that since passage of HSC, §341.016
in 1945, the U.S. Occupational Safety and Health Administration (OSHA) has
been given preemptive federal jurisdiction over occupational safety and health
matters in Texas industrial establishments, i.e., in the private sector. Therefore,
the information provided in the section is being provided as public information,
rather than enforceable standards. New §295.101(b) provides information
on how the department derived the List of Toxic Gases and Recommended Allowable
Concentrations. Section 295.101(b) clarifies that the List of Toxic Gases
includes only those gases that meet the OSHA Hazard Communication Standard's
(29 Code of Federal Regulations, §1910.1200, Appendix A) definitions
of "toxic" or "highly toxic" by inhalation. New §295.101(b) also clarifies
that the toxic gases are identified by both chemical name and Chemical Abstract
Service (CAS) Number and the Recommended Allowable Concentrations (RAC) for
each gas was derived from the OSHA Permissible Exposure Limit for that substance,
provided in both parts per million (ppm) and milligrams per cubic meter (mg/M
No comments were received on the proposal during the comment period.
25 TAC §§295.101 - 295.109
The repeals are adopted under the Health and Safety Code, §341.002,
which provides the Texas Board of Health (board) with the authority to adopt
necessary rules to administer and enforce Chapter 341; §341.016(c)(1),
which requires the department to make available to the state's citizens information
concerning allowable concentrations of toxic gases; 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. The review of these rules 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 January 16, 2004.
TRD-200400352
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 5, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 458-7236
25 TAC §295.101
The new section is adopted under the Health and Safety Code, §341.002,
which provides the Texas Board of Health (board) with the authority to adopt
necessary rules to administer and enforce Chapter 341; §341.016(c)(1),
which requires the department to make available to the state's citizens information
concerning allowable concentrations of toxic gases; 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. The review of the existing rules being repealed and this new rule
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 January 16, 2004.
TRD-200400353
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 5, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 458-7236
25 TAC §§295.121 - 295.126
The Texas Department of Health (department) adopts the repeal
of existing §§295.121-295.126, concerning industrial homework standards.
Sections 295.121-295.126 are adopted without changes to the proposed text
as published in the August 22, 2003, issue of the
Texas Register
(28 TexReg 6701), and 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). Sections 295.121-295.126
have been reviewed, and the department has determined that reasons for adopting
the sections no longer continue to exist.
A notice of intention to review for §§295.121-295.126 was published
in the January 5, 2001, issue of the
Texas Register
(26 TexReg 245) for the state agency review of rules in accordance
with Government Code, §2001.039. No comments were received due to publication
of this notice.
The repeal of §§295.121-295.126 removes unnecessary language
and deletes an obsolete reference to a program created in 1937, when industrial
homeworkers were commonly used to manufacture articles for employers. The
existing rules contained language that is redundant with language in the Health
and Safety Code (HSC), Chapter 143, the Industrial Homework Act, and the repeal
removes unnecessary rules.
No comments were received on the proposal during the comment period.
The repeals are adopted under the Health and Safety Code (HSC), §143.010,
which provides the Texas Board of Health (board) with the authority to adopt
necessary rules to administer and enforce Chapter 143; and HSC, §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. The review of these rules 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 January 16, 2004.
TRD-200400354
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 5, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 458-7236
The Texas Department of Health (department) adopts the repeal of existing §§295.141-295.148,
concerning standards for face and eye protection in public schools, and new §§295.141-295.143,
concerning guidelines for selection and use of face and eye protection in
public schools. The repeal of §§295.141-295.148 and new §§295.141-295.143
are adopted without changes to the proposed text as published in the August
22, 2003, issue of the
Texas Register
(28
TexReg 6702), 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). Sections 295.141-295.148
have been reviewed and the department has determined that reasons for adopting
the sections continue to exist in that guidelines on this subject are needed.
However, existing §§295.141-295.148 needed extensive revisions,
as described in this preamble, and were repealed and replaced by new §§295.141-295.143,
which are adopted under an amended subchapter heading.
A notice of intention to review for §§295.141-295.148 was published
in the January 5, 2001, issue of the
Texas Register
(26 TexReg 245) for the state agency review of rules in accordance
with Government Code, §2001.039. No comments were received due to publication
of this notice.
Existing §§295.141-295.148 were repealed in order to clarify
the change in applicability of the sections, remove obsolete standards and
guidelines for face and eye protection, remove manufacturing and design standards
that are not applicable to the purchasers of face and eye protection equipment,
and facilitate adoption by reference of current and amended federal standards
as guidelines for selection and use of face and eye protection.
The amended title for Subchapter F, "Guidelines for Selection and Use of
Face and Eye Protection in Public Schools," clarifies that the sections under
this subchapter are intended to serve as recommended guidelines for performing
hazard assessments and making choices regarding the appropriate types of face
and eye protection needed for certain activities in public schools, rather
than serving as enforceable standards for the design and manufacture of face
and eye protective equipment. New §295.141 clarifies that the rules are
issued as health protection guidelines for selection and use of face and eye
protection in public schools under the Health and Safety Code, §341.002(2),
and are applicable to employees, students, and visitors who participate in
certain educational activities and programs that pose a high risk for face
or eye injuries. New §295.142 adopts by reference, as guidelines only,
the standards for selection and use of eye and face personal protective equipment
established by the U.S. Occupational Safety and Health Administration (OSHA),
and adopts as a guideline, as amended, an OSHA reference document that assists
employers in selecting eye and face protection based on workplace hazard assessments.
New §295.143 provides a program mailing address and telephone number
in order to ensure public access to the referenced documents and other program
information.
No comments were received on the proposal during the comment period.
Subchapter F. STANDARDS FOR FACE AND EYE PROTECTION IN PUBLIC SCHOOLS
25 TAC §§295.141 - 295.148
The repeals are adopted under the Health and Safety Code, §341.002(2),
which provides the Texas Board of Health (board) with the authority to establish
standards and procedures for health protection measures; 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. The review of these rules 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 January 16, 2004.
TRD-200400355
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 5, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 458-7236
25 TAC §§295.141 - 295.143
The new rules are adopted under the Health and Safety Code, §341.002(2),
which provides the Texas Board of Health (board) with the authority to establish
standards and procedures for health protection measures; 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. The review of these rules 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 January 16, 2004.
TRD-200400356
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 5, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 458-7236
Chapter 415.
PROVIDER CLINICAL RESPONSIBILITIES
Subchapter G. DETERMINATION OF MANIFEST DANGEROUSNESS
25 TAC §415.305
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) adopts amendments to §415.305 of Chapter 415, Subchapter G,
concerning determination of manifest dangerousness without changes to the
proposed text as published in the November 14, 2003, issue of the
Texas Register
(28 TexReg 10079).
Revisions to the rules in 2002 resulted in an inadvertent change to a requirement
for the TDMHMR Review Board (i.e., a unanimous vote in order to determine
a person manifestly dangerous). In the previous version of the rules, a unanimous
vote by facility review board members was required in order for a person to
be determined manifestly dangerous and a unanimous vote by the TDMHMR Review
Board members was required in order for a person to be determined
not
manifestly dangerous. In an effort to combine the procedures for
facility review boards and the TDMHMR Review Board, the type of unanimous
vote for facility review boards was also required of the TDMHMR Review Board.
The amendment changes the type of unanimous vote for the TDMHMR Review Board
to that which was required in the previous version of the rules.
No comment on the proposal was received.
This section is 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 the Texas Code of Criminal Procedure, Articles 46.02
and 46.03, which require the TDMHMR commissioner to appoint a review board
to determine whether a person committed to the maximum security unit is manifestly
dangerous.
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 January 15, 2004.
TRD-200400254
Rodolfo Arredondo
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: February 4, 2004
Proposal publication date: November 14, 2003
For further information, please call: (512) 206-4516
Subchapter K. ABUSE, NEGLECT, AND EXPLOITATION IN TDMHMR FACILITIES
Subchapter B. LICENSING PROCEDURES
Subchapter C. ENFORCEMENT
Subchapter D. MINIMUM STANDARDS FOR LICENSED ABORTION FACILITIES
Chapter 146.
TRAINING AND REGULATION OF PROMOTORES(AS) OR COMMUNITY HEALTH WORKERS
Chapter 159.
TERTIARY MEDICAL CARE
Chapter 265.
GENERAL SANITATION
Chapter 295.
OCCUPATIONAL HEALTH
Subchapter E. INDUSTRIAL HOMEWORK STANDARDS
Chapter 295.
OCCUPATIONAL HEALTH
Subchapter F. GUIDELINES FOR SELECTION AND USE OF FACE AND EYE PROTECTION IN PUBLIC SCHOOLS
Part 2.
TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION
Chapter 417.
AGENCY AND FACILITY RESPONSIBILITIES