Adopted Rules Title 25

TITLE 25. HEALTH SERVICES

Part 1. DEPARTMENT OF STATE HEALTH SERVICES

Chapter 5. POISON CONTROL CENTERS

25 TAC §5.51, §5.52

The Executive Commissioner of the Health and Human Services Commission (commission), on behalf of the Department of State Health Services (department), adopts amendments to §5.51 and §5.52, concerning regional poison control centers, without changes to the proposed text as published in the November 30, 2007, issue of the Texas Register (32 TexReg 8657), and the sections will not be republished.

BACKGROUND AND PURPOSE

The amendments are necessary to comply with Health and Safety Code, Chapter 777, which requires the department to adopt rules concerning regional poison control centers.

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 5.51 and 5.52 have been reviewed and the department has determined that the reasons for adopting the sections continue to exist because rules on this subject are needed.

SECTION-BY-SECTION SUMMARY

The amendments to §5.51 and §5.52 update legacy agency names to reflect the post-consolidation operations of the department and the commission. Also, the amendments revise the Amarillo Hospital District as successor to the Northwest Texas Hospital.

COMMENTS

The department, on behalf of the commission, did not receive any comments regarding the proposed rules during the comment period.

LEGAL CERTIFICATION

The Department of State Health Services General Counsel, Lisa Hernandez, certifies that the rules, as adopted, have been reviewed by legal counsel and found to be a valid exercise of the agencies' legal authority.

STATUTORY AUTHORITY

The amendments are adopted under Health and Safety Code, §777.001, which requires the Department of State Health Services and the Commission on State Emergency Communications to jointly adopt rules designating the region for each poison control center; §777.009 which requires the department and the Commission on State Emergency Communications to jointly adopt rules to establish criteria for awarding grants to regional poison control centers; and Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001. Review of the sections implements Government Code, §2001.039.

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

Filed with the Office of the Secretary of State on April 3, 2008.

TRD-200801739

Lisa Hernandez

General Counsel

Department of State Health Services

Effective date: April 23, 2008

Proposal publication date: November 30, 2007

For further information, please call: (512) 458-7111 x6972

Chapter 37. MATERNAL AND INFANT HEALTH SERVICES

Subchapter T. SCHOOL-BASED HEALTH CENTERS

25 TAC §§37.531 - 37.538

The Executive Commissioner of the Health and Human Services Commission (commission) on behalf of the Department of State Health Services (department) adopts amendments to §§37.531 - 37.538, concerning school-based health centers without changes to the proposed text as published in the November 30, 2007, issue of the Texas Register (32 TexReg 8661) and, therefore, the sections will not be republished.

BACKGROUND AND PURPOSE

The amendments establish procedures for awarding grants to assist school districts with the costs of operating school-based health centers and to establish standards for the funded centers. School-based health centers are established by a school district or by a school district jointly with a public health agency at one or more campuses in the school district to deliver cooperative health care programs, prevention of emerging health threats that are specific to the district, and conventional (primary) health services for students and their families. The department, formerly the Texas Department of Health, started voluntary funding for school-based health centers in 1993 and in 1999 as authorized by the Appropriations Act of the 76th Legislature, Regular Session, and subsequent appropriations acts, created a competitive grant program and provided start-up funding for two school-based health centers per fiscal year, as required by the appropriations act. These provisions are now in Education Code, Chapter 38.

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 37.531 - 37.538 have been reviewed and the department has determined that reasons for adopting the sections exist because rules on this subject are needed.

SECTION-BY-SECTION SUMMARY

Amendments to §37.531 and §37.535 clarify the rules by minor word changes. Amendments to §37.352 add a new definition and clarify other definitions. An amendment to §37.533 was made based on changes in appropriations and to allow greater flexibility in awarding grants. An amendment was made to §37.534 to change the title of the rule. Amendments were made to §37.536 to change the title of the rule and to clarify the competitive Request for Proposals process. Amendments were made to §37.537 to change the title of the rule and to clarify the procedures for reviewing proposals. Amendments were made to §37.538 to update the standards for school-based health centers. These updates clarify the use of a local school health advisory council, modify how parents are notified of a child's appointment allowing for different communication methods, clarify the use of funds received through billing for services and update the age group receiving services. Amendments to the standards also add that outcomes focusing on student absenteeism will target students with chronic conditions and revised the components to be included in the annual report.

COMMENTS

The department, on behalf of the commission, did not receive any comments regarding the proposed amendments during the comment period.

LEGAL CERTIFICATION

STATUTORY AUTHORITY

The amendments are adopted under the Texas Education Code, §38.063, which requires rules establishing standards for health care centers funded through grants; Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001. Review of the 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 April 4, 2008.

TRD-200801764

Lisa Hernandez

General Counsel

Department of State Health Services

Effective date: April 24, 2008

Proposal publication date: November 30, 2007

For further information, please call: (512) 458-7111 x6972

Chapter 229. FOOD AND DRUG

Subchapter K. TEXAS FOOD ESTABLISHMENTS

25 TAC §§229.172, 229.176 - 229.178

The Executive Commissioner of the Health and Human Services Commission (commission), on behalf of the Department of State Health Services (department) adopts the amendments to §229.172, §229.176, and §229.177 concerning the accreditation of certified food management programs and the certification of food managers, and new §229.178 concerning the accreditation of food handler programs. The amendments to §229.172, §229.176, and new §229.178 are adopted with changes to the proposed text as published in the December 14, 2007, issue of the Texas Register (32 TexReg 9222). The amendment to §229.177 is adopted without changes to the proposed text and, therefore, will not be republished.

BACKGROUND AND PURPOSE

The purpose of the amendments to §229.172 and §229.176 is to allow the issuance of the five-year certified food manager certificate in accordance with House Bill 1064 of the 80th Legislature (2007) that exempts the food manager certificate from the two-year renewal required by Health and Safety Code, §12.0112, and certificate fees are amended to reflect the five-year renewal period.

The purpose of the amendment to §229.177 is to reflect the agency name change to the Department of State Health Services and correct a rule reference. The purpose of the new §229.178 is to define the basic food safety training or education required to be included in a department accredited food handler course curriculum.

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 229.172, 229.176, and 229.177 have been reviewed and the department has determined that reasons for adopting these sections continue to exist because rules on these subjects are needed.

SECTION-BY-SECTION SUMMARY

The amendment to §229.172 concerns the accreditation of food management programs, to authorize issuance of five-year Certified Food Manager certificates. The recertification examination is amended to be consistent with §229.176, which establishes a 75 question examination for recertification. The amendment to §229.176 concerns the certification of food managers to authorize issuance of five-year Certified Food Manager certificates. Additional amendments are for consistency with the 2006 Texas Food Establishment Rules listed in Subchapter K. Minor amendments have also been made to correct language, punctuation, and to provide clarity.

The amendment to §229.177 concerns the certification of food managers in areas under the department's permitting jurisdiction. The agency name is changed to reflect the Department of State Health Services and correct one rule reference update.

Adopted new §229.178 is based on Senate Bill 552 of the 80th Legislature regarding the accreditation of basic food safety education and training programs for food handlers. This bill requires the Health and Human Services Commission to adopt rules to define the basic food safety training or education required to be included in a course curriculum. The basic course may not exceed two hours in length and may require a participant to achieve a passing score on an examination.

COMMENTS

The department, on behalf of the commission, has reviewed and prepared responses to the comments received regarding the proposed rules during the comment period, which the commission has reviewed and accepts.

The commenters were trade associations, local health jurisdictions, and program providers, including the following: Texas Restaurant Association; Waco-McLennan County Public Health District; City of Huntsville, Health Inspections; Starbucks Coffee Company; Tarrant County Public Health; City of Longview, Environmental Health; City of Beaumont Public Health Department, Environmental Health Division; Learn2Serve; H-E-B Grocery Company; On-Site Services; Nuhealth Food Sanitation Management Program; City of DeSoto; Safe Food 4 U; and Texas Food Handler.com. The commenters were in favor of the rules; however, they suggested recommendations for change as discussed in the summary of comments. One commenter was against the rules.

COMMENT: Concerning §229.172(b)(18) regarding the definition of "qualified instructor", one commenter suggested using the word "approved" versus the word "qualified" instructor.

RESPONSE: The commission disagrees with the commenter because "qualified instructor" meets the criteria established in the rules. No change was made to the rule as a result of this comment.

COMMENT: Concerning §229.172(k)(4) regarding recertification examinations, one commenter suggested that the examination be maintained at 50 questions or reduced to 35 questions.

RESPONSE: The commission disagrees with the commenter as the national standard has been established through the Conference for Food Protection and the commission has determined that 75 questions are necessary to determine candidate competency. No change was made to the rule as a result of this comment.

COMMENT: Concerning §229.172(p)(3) and §229.176(o)(2) regarding the examination packet fee, two commenters objected that there is a fee increase for the packet.

RESPONSE: The commission disagrees as the fee is maintained at $5.00 per year for each examination packet. There is a change in the collection system; it will change from being a pro-rated system to being a total-paid system. No changes were made to the rules as a result of these comments.

COMMENT: Concerning §229.172(p)(3), one commenter was concerned about increasing the certificate period from two to five years between training.

RESPONSE: The commission disagrees because the amendment changes the training period from six years to five years. The five-year certificate period is a national standard that has been established by the Conference for Food Protection. No change was made to the rule as a result of this comment.

COMMENT: Concerning §229.172(s) and §229.178(i) regarding department audits, two commenters noted an error using the word "date" after the words "based on analysis of" versus "data".

RESPONSE: The commission agrees with the commenters and has replaced the word "date" with the word "data".

COMMENT: Concerning the rules in general, one commenter suggested that there be a lower fee for licensing and examinations for government and non-profit organizations.

RESPONSE: The commission disagrees as the Department of State Health Services has not been given the statutory authority to provide lower fees for government and non-profit organizations. No change was made to the rules as a result of this comment.

COMMENT: Concerning §229.176(o)(1) regarding test site fees, one commenter stated that the fee structure was confusing, regarding licensing requirements when changing the number of test sites. The commenter asked whether going from one category to another category is considered a new license or an amendment to an existing license.

RESPONSE: The commission acknowledges the comment. Changing from one test site to more than one test site is not a licensing amendment, but requires a new license. No changes were made to the rule as a result of this comment.

COMMENT: Concerning §229.176(e)(3), a commenter stated that the last sentence needs minor editorial revisions.

RESPONSE: The commission agrees and corrected the last sentence of subsection (e)(3).

COMMENT: Concerning new §229.178 in general, one commenter suggested that an accredited program provide local health jurisdictions a listing of students taught during a specified time period.

RESPONSE: The commission disagrees because food handler programs will collect the food handlers mailing address for card distribution or replacement purposes. An employment address is not collected as a food handler may live in one health jurisdiction and be employed in another, and also due to the high employment turnover rate of food handlers. No change was made to the rule as a result of this comment.

COMMENT: Concerning new §229.178 in general, one commenter inquired about the impact of this new rule on the food manager certification classes. In addition, the commenter asked if the new rule applies only to food handler classes conducted by local health departments.

RESPONSE: The commission acknowledges the comment. New §229.178 will not impact the food manager certification classes. The new rule will impact those food handler training programs that choose to apply for accreditation. No changes were made to the rule as a result of this comment.

COMMENT: Concerning the title of new §229.178, "Accreditation of Food Handler Programs," one commenter suggested that the title be changed to add the words "Education and Training" before the word "Programs."

RESPONSE: The commission agrees with the commenter and changed the title of new §229.178 to read, "Accreditation of Food Handler Education or Training Programs," to be consistent with Health and Safety Code, §438.0431(a).

COMMENT: Concerning new §229.178(a) regarding the purpose, one commenter recommended the term, "more qualified employee" be removed from the last sentence.

RESPONSE: The commission disagrees because training does provide a "more qualified employee." No change was made to the rule as a result of this comment.

COMMENT: Concerning new §229.178(b)(3) regarding the definition of "food," one commenter suggested that additional food items be added to the existing list.

RESPONSE: The commission disagrees because the definition is consistent with §229.162(36), Subchapter K of this title (relating to Texas Food Establishments). No change was made to the rule as a result of this comment.

COMMENT: Concerning new §229.178(b)(4)(A)(i) regarding the definition of "food establishment," one commenter suggested that the words "if the operation provides food directly" be replaced with the words "that provides food directly."

RESPONSE: The commission disagrees because the definition is consistent with §229.162(40), Subchapter K of this title. No change was made to the rule as a result of this comment.

COMMENT: Concerning new §229.178(b)(5), one commenter recommended that the definition of "food handler" be changed to "food employee" for consistency with §229.162(39), Subchapter K of this title, or delete the word "service" before the word "employee" from the definition.

RESPONSE: The commission disagrees because the definition is consistent with Health and Safety Code, §438.046(b). No change was made to the rule as a result of this comment.

COMMENT: Concerning new §229.178(c)(1)(A) regarding the education or training course curriculum, one commenter suggested removing the phrase "shall include the definition of foodborne illness" because "foodborne illness" is not defined in §229.162, Subchapter K of this title.

RESPONSE: The commission agrees with the commenter and changed the term "foodborne illness" to "foodborne disease outbreak" to be consistent with §229.162(37), Subchapter K of this title. The course curriculum shall include "foodborne disease outbreak" in the list of required food safety principles.

COMMENT: Concerning new §229.178(c)(2) regarding course length, two commenters wanted to extend the length. One commenter suggested that the course length not exceed three hours, and one commenter expressed that the course length can affect the content and amount of detail in the course presentation and can limit student participation.

RESPONSE: The commission disagrees with the commenters because the maximum course length is established by Health and Safety Code, §438.0431(b). No change was made to the rule as a result of these comments.

COMMENT: Concerning new §229.178(c)(2) regarding course length, one commenter suggested that establishing two hours would eliminate any education program to be better than a minimum standard, and suggested the market place to regulate maximums and use the standards to set minimums.

RESPONSE: The commission disagrees with the commenter because the maximum course length is established by Health and Safety Code, §438.0431(b). No change was made to the rule as a result of this comment.

COMMENT: Concerning new §229.178(c)(2) regarding course length, one commenter suggested that there be a minimum course length.

RESPONSE: The commission disagrees with the commenter because the emphasis should be placed on the curriculum content which is established in §229.178(c) of the rule. The accredited program should ensure that the curriculum is taught within the course length established by Health and Safety Code, §438.0431(b). No change was made to the rule as a result of this comment.

COMMENT: Concerning new §229.178(c)(3) regarding the course examination, one commenter stated that there must be a final examination, and suggested that the decision to have a final examination should not be made by the provider. Another commenter suggested that there should be required quizzes or an examination to test the knowledge, comprehension, application, analysis, synthesis, and evaluation of materials.

RESPONSE: The commission disagrees with the commenters because Health and Safety Code, §438.0431(c) states that a program may require a participant to achieve a passing score on an examination to successfully complete the course for certification. No changes were made to the rule as a result of these comments.

COMMENT: Concerning new §229.178(d)(2) regarding reciprocity of food handler training, one commenter suggested that reciprocity should be optional for local jurisdictions.

RESPONSE: The commission disagrees because reciprocity of food handler training is provided in Health and Safety Code, §438.046(b). Section 438.046 applies to all sections of Health and Safety Code, Subchapter D, Food Service Programs. No change was made to the rule as a result of this comment.

COMMENT: Concerning new §229.178(d)(2) regarding certificate reciprocity, one commenter stated that a lot of control should be left to the jurisdiction as to which courses and companies they would like to have approved in their city or county for reciprocity.

RESPONSE: The commission disagrees because reciprocity of training is provided in Health and Safety Code, §438.046(b). No change was made to the rule as a result of this comment.

COMMENT: Concerning new §229.178(d)(2) regarding training reciprocity, one commenter stated that the rule should apply only to the Department of State Health Services.

RESPONSE: The commission disagrees because the Health and Safety Code, §438.046(b) requires reciprocity of training programs accredited by the department. No change was made to the rule as a result of this comment.

COMMENT: Concerning new §229.178(e) regarding the licensing of an accredited food handler program, one commenter stated that it should be an option to participate in the department program and rules.

RESPONSE: The commission acknowledges the comment. Local health jurisdictions are not required to obtain department accreditation of their food handler training program. However, if a city wants their food handler training program to be accepted through Health and Safety Code, §438.046(b), department accreditation is required. No change was made to the rule as a result of this comment.

COMMENT: Concerning new §229.178(e) regarding the licensing of an accredited food handler program, one commenter stated that their city had been teaching this program for 16 years, and did not want the department to charge them $600 as required by §229.178(g)(1) to continue with their food handler training program.

RESPONSE: The commission acknowledges the comment. Accreditation of a food handler education or training program is voluntary. The only requirement stated in Health and Safety Code, §438.046(b) is reciprocity for the food service worker's training. No change was made to the rule as a result of this comment.

COMMENT: Concerning new §229.178(g) regarding required licensing of training program fees, one commenter stated this was an increase of costs to local jurisdictions that choose to be accredited.

RESPONSE: The commission acknowledges the comment. The accreditation fee was established for the department to administer the program, which includes maintenance of the registry of course programs. No change was made to the rule as a result of this comment.

COMMENT: Concerning new §229.178(g), one commenter expressed concern regarding new program licensing fees that may affect individuals who take an accredited course and become employed in a local jurisdiction that does not recognize the state accredited course.

RESPONSE: The commission acknowledges the comment. The Health and Safety Code, §438.046(b), states that a local jurisdiction through reciprocity must recognize a state accredited course; therefore, the program accreditation fees would have little impact on an individual who takes an accredited training course. No change was made to the rule as a result of this comment.

COMMENT: Concerning new §229.178(i) regarding department audits, one commenter suggested that the training be monitored, evaluated, and adjusted on a frequent basis to ensure and maintain effectiveness.

RESPONSE: The commission agrees with the commenter and the department plans to develop monitoring procedures for ensuring compliance. No change was made to the rule as a result of this comment.

LEGAL CERTIFICATION

STATUTORY AUTHORITY

The adopted amendments and new rule are authorized by Health and Safety Code, Chapter 438, which provides the Executive Commissioner of the Health and Human Services Commission with authority to adopt rules and guidelines relating to §438.042, food service programs; §438.106, for certification of food managers, and §438.043, for basic food safety accreditation, and §437.0076(b), for certified food manager; and Government Code, §531.0055(e), and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001. The review of the rules implements Government Code, §2001.039.

§229.172.Accreditation of Certified Food Management Programs.

(a) Purpose. This section is intended to provide the framework for accrediting manager level food safety programs in accordance with the Texas Health and Safety Code (HSC), Chapter 438, Subchapter D. A uniform standard governing the accreditation of food safety programs enhances the recognition of reciprocity among regulatory agencies and reduces the expense of duplicate education incurred when food establishment managers work in multiple regulatory jurisdictions. Education of the food establishment manager provides more qualified personnel, thereby reducing the risk of foodborne illness outbreaks caused by improper food preparation and handling techniques.

(b) Definitions. The following words and terms when used in this section shall have the following meanings unless the context clearly indicates otherwise.

(1) Accredited--A program approved by the department that meets the standards set forth in this section.

(2) Alternative training methods--Training other than classroom, including but not limited to distance learning, computerized training programs, and correspondence courses.

(3) ANSI-CFP Program Accreditation--The American National Standard Institute (ANSI) and the Conference for Food Protection (CFP) accredits programs as outlined in the CFP: Standards for Accreditation of Food Protection Manager Certification Programs.

(4) Certificate--The documentation issued by the department or an organization that administers a department approved examination verifying that an individual has complied with the requirements of this section.

(5) Certification--The process whereby a certificate is issued.

(6) Certified food manager--A person who has demonstrated that they have the knowledge, skills and abilities required to protect the public from foodborne illness by means of successfully completing a food safety examination as described in this section.

(7) Certified food management program--A program accredited by the department that provides food safety education for food establishment managers and administers an approved examination for certification or recertification purposes.

(A) Certification program--A program whose course work consists of a minimum of 14 hours of instruction on food safety topics which may include traditional or alternative methods of training, including distance education, and at least a one-hour proctored department approved examination.

(B) Recertification program--A program whose course work consists of six hours of instruction on food safety topics, which may include traditional or alternative methods of training, including distance education, and a department approved proctored examination.

(8) Continuing education--Documented professional education or activities that provide for the continued proficiency of a certified food management program instructor.

(9) Department--Department of State Health Services.

(10) Examination administrator--An individual or individuals who are designated in writing to the department, by the licensee, who is responsible for administering food manager certification examinations.

(11) Food--A raw, cooked, or processed edible substance, ice, beverage or ingredient used or intended for use or for sale in whole or in part for human consumption, or chewing gum.

(12) Food establishment--

(A) Food establishment means an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption:

(i) such as a restaurant; retail food store; satellite or catered feeding location; catering operation if the operation provides food directly to a consumer or to a conveyance used to transport people; market; vending location; conveyance used to transport people; institution; or food bank; and

(ii) that relinquishes possession of food to a consumer directly, or indirectly through a delivery service such as home delivery of grocery orders or restaurant takeout orders, or delivery service that is provided by common carriers.

(B) Food establishment includes:

(i) an element of the operation such as a transportation vehicle or a central preparation facility that supplies a vending location or satellite feeding location unless the vending or feeding location is permitted by the regulatory authority; and

(ii) an operation that is conducted in a mobile, stationary, temporary, or permanent facility or location; where consumption is on or off the premises; and regardless of whether there is a charge for the food.

(i) an establishment that offers only prepackaged foods that are not potentially hazardous;

(ii) a produce stand that only offers whole, uncut fresh fruits and vegetables;

(iii) a food processing plant;

(iv) a kitchen in a private home if only food that is not potentially hazardous is prepared for sale or service at a function such as a religious or charitable organization's bake sale if allowed by law;

(v) an area where food that is prepared as specified in subparagraph (C)(iv) of this paragraph is sold or offered for human consumption;

(vi) a Bed and Breakfast Limited facility as defined in these rules; or

(vii) a private home that receives catered or home-delivered food.

(13) Law--Applicable local, state and federal statutes, regulations and ordinances.

(14) Licensee--The individual, corporation or company that is licensed by the department to operate certified food management programs.

(15) Person--An association, corporation, individual, partnership or other legal entity, government or governmental subdivision or agency.

(16) Proctor--The examination administrator or a person who is designated to assist the examination administrator.

(17) Psychometric--Scientific measurement or quantification of human qualities, traits or behaviors.

(18) Qualified instructor--An individual whose educational background and work experience meet the requirements for approval as a qualified food management program instructor as described in this section.

(19) Reciprocity--Acceptance by state and local regulatory authorities of a Department approved food manager certificate.

(20) Regulatory authority--The local, state, or federal enforcement body or authorized representative having jurisdiction over the food establishment.

(21) Secure--Access limited to the certified food manager licensee or examination administrator.

(22) Single entity--A corporation that educates only its own employees.

(23) Sponsor--An individual designated in writing to the department, by the licensee, as the person responsible for administrative management of the program.

(24) Traceable means--A method of submitting documents, which can be tracked in the event of loss or delay.

(25) Two-Year Renewal Certificate--The certificate issued by the department from May 6, 2004 to April 24, 2008, verifying that a certified food manager has completed the application and submission of fees for renewal of a department issued certificate.

(1) Certified food manager responsibilities. Responsibilities of a certified food manager include:

(A) identifying hazards in the day-to-day operation of a food establishment that provides food for human consumption;

(B) developing or implementing specific policies, procedures or standards aimed at preventing foodborne illness;

(C) coordinating training, supervising or directing food preparation activities, and taking corrective action as needed to protect the health of the consumer;

(D) training the food establishment employees on the principles of food safety; and

(E) conducting in-house self-inspections of daily operations on a periodic basis to ensure that policies and procedures concerning food safety are being followed.

(2) Certification by training and food safety examination. To be certified, a food manager must complete an accredited certification or recertification program and pass an examination that has been administered through a department accredited food management program.

(3) Certificate reciprocity. Department issued food management certificates shall be recognized statewide by regulatory authorities as the only valid proof of successful completion of a department accredited food management course.

(4) Certificate availability. The original food manager certificate shall be conspicuously posted at each food establishment.

(d) Licensing of certified food management program licensee. The department shall issue a license of accreditation to each certified food management program licensee who has demonstrated compliance with this section. A license issued under these rules will expire two years from the date of issuance. This license is not transferable on change of ownership, name, or site location.

(1) Application. A person wishing to apply for a certification or recertification certified food management program license shall submit a completed application to the department.

(2) Certified food management program license fee. The completed license application shall include the appropriate non-refundable fee as specified in subsection (p)(1) of this section.

(3) Examination security agreement. The licensee shall submit a signed security agreement for each examination administrator using a department examination.

(4) Sponsor. The licensee may designate a program sponsor as the person responsible for the administrative management of the program.

(5) Qualified instructor. A list of all qualified food management program instructors who plan to teach an accredited certification or recertification course shall be provided to the department. A completed instructor application, along with other necessary documentation must be submitted for all non-qualified instructors.

(6) Training methods. Training methods shall be designated on the application. Documentation must be provided to the department verifying that the time required to complete a training program is equivalent to 14 hours of training for certification and six hours for recertification.

(7) Certification examination. Department approved examination(s) utilized by the certified food protection management programs shall be designated on the completed application.

(e) Licensing of single entity certified food management programs. In addition to the licensing requirements as specified in subsection (d) of this section, a corporation wishing to use a single entity option, which defers course length and topic requirements as specified HSC, §438.043(a), shall submit to the department:

(1) a copy of the course guide; and

(2) an outline of each topic and sub-topics.

(f) Responsibilities of a licensee.

(1) Compliance with certified food management program law and rules. The licensee is responsible for compliance with applicable certified food management program law and rules.

(2) Payment of fees. All fees shall be non-refundable and paid as specified in subsection (p) of this section.

(3) Certified food management program course content. All food management programs must be taught utilizing the training and time requirements in Health and Safety Code (HSC), §438.043(1), (2), and (3).

(4) Change of sponsor. The licensee shall notify the department in writing of the name of the new program sponsor.

(5) Change of examination administrator. The licensee shall submit a signed security agreement for each new examination administrator prior to administering the department examination. New examination administrators must receive instruction on administrative responsibilities for examination security and processing.

(6) Change of qualified instructor. The licensee shall ensure that only a department qualified instructor serves as the instructor for the food management program. All new instructors must complete the application for new instructors that must be submitted by the licensee to the department with the applicable documentation. All new instructors must receive instruction on the applicable law and rules and administrative responsibilities.

(7) Submission of answer sheets. The licensee shall ensure that the answer sheets used for computerized grading shall be submitted to the department by traceable means. The completed answer sheets must be received by the department within seven working days of the examination date.

(g) Requirements for qualification of instructors. The instructors for all food management programs shall be department qualified prior to teaching a class. The instructors for all certified food management programs shall meet the qualifications in these rules. Instructors meeting these qualifications shall be approved for the two-year permit term of the certified food management program licensee. The completed application form shall be submitted to the department through the accredited certified food management program licensee.

(1) New instructors. A completed application for new instructors must be submitted by the program licensee to the department with the following documentation:

(A) the completed and signed application form;

(B) a copy of a valid food management certificate; and

(i) an associate or higher college degree from an accredited institution in a major related to food safety or environmental health, evidenced by a copy of the candidate's diploma or transcript;

(ii) five years of food establishment work experience as a food manager verified in an attached resume; or

(iii) two years of regulatory food inspection experience verified in an attached resume.

(2) Nationally accredited program instructors. Nationally accredited program instructors who have met the minimum standards as set forth by this section shall be given reciprocity when instructing and administering an ANSI-CFP Program Accreditation examination.

(h) Responsibilities of qualified instructors.

(1) Compliance with certified food management program law and rules. All qualified instructors are responsible for compliance with applicable certified food management program law and rules.

(2) Training requirements. All qualified instructors are responsible for instructing the course content as specified in subsection (f)(3) of this section, and meeting the training time requirements as specified in subsection (d)(6) of this section.

(3) Examination administrator. Instructors serving as the examination administrator must complete an examination security agreement prior to administering a department examination.

(i) Requirements for the renewal of qualified instructors. In order to renew an instructor's qualification the program licensee must comply with the requirements of this subsection.

(1) Contact hours for continuing education. Certified food management programs shall submit a renewal application and documentation of five contact hours of continuing education for each instructor during the two-year program license period to maintain qualification as a certified food manager program instructor.

(2) Accepted continuing education topics. Continuing education topics may include areas in food safety or instruction enhancement.

(3) Verification of continuing education. The following may be used for continuing education:

(A) a certificate of completion for a course or seminar with the participant's name, course name, date and number of contact hours earned;

(B) a college transcript with course description; or

(j) Responsibilities of the examination administrators.

(1) Compliance with certified food management program laws and rules. The examination administrator is responsible for compliance with the certified food management program laws and rules applicable to examination administration.

(2) Examination security agreement. An examination administrator must complete, sign and date a security agreement and submit to the department through the certified food management program licensee. The department may not issue examinations to an examination administrator who does not have a signed security agreement on file with the department.

(3) Examination security. The examination administrator shall provide examination security at the examination site. All security measures shall be met and maintained at all times during examination storage, administration and issuance as described in this section.

(4) Submission of examination booklets and answer sheets. The examination administrator shall submit the examination booklets and answer sheets used for computerized grading via traceable means along with department forms as required. The examination booklets, completed answer sheets and required forms must be received by the department within seven working days of the examination date.

(5) Examination results. Candidates shall be informed of the process for receiving their certificate upon passing the examination. Candidates shall be informed of the reexamination process, in the event of examination failure.

(6) Replacement process for candidate certificate. Candidates shall be informed of the process for replacing lost or damaged certificates.

(k) Certified food manager certificates.

(1) Certificate issuance. Certified food manager certificates for candidates who complete an accredited program and pass the department examination will be mailed directly to the candidate.

(2) Certificate period. A certified food manager certificate issued by the department under this section shall be valid for five years from the date of passing the examination. All certificates issued prior to the effective date of these rules will expire on the expiration date as stated on the certificate.

(3) Two-year renewal certificate. Food manager certificates issued by the department from May 6, 2004 to April 24, 2008, must be renewed every two years and may be renewed two times.

(4) Recertification. Candidates may become recertified by taking a recertification class and passing a department approved examination, or by passing an examination as described in §229.176(h)(5) of this title (relating to Certification of Food Managers).

(5) Department certificate replacement. An individual requesting a certified food manager certificate replacement must submit a completed written application to the department with the appropriate non-refundable fee. Replacement certificates will bear the same expiration date as the original certificate.

(6) Certification through single entity corporations. Candidates from accredited single entity corporations will receive food management certificates as described in this section, except that the food management certificate shall:

(A) clearly indicate that the certificate is for the single entity only;

(B) be recognized by regulatory authorities for only that single entity; and

(l) Department examination criteria. The department examination shall meet accepted psychometric standards for reliability, validity and passing score. The department certification and recertification examinations shall consist of 75 statistically valid questions to be administered at one time following the required training which precedes the examination.

(m) National examination criteria. National food manager examinations recognized by the ANSI-CFP Program Accreditation shall be considered department approved examinations.

(n) Site requirements for administration of the department examination and national examinations. Examination sites utilizing the department examination or a national examination must comply with all legal requirements for safety, health, and accessibility for all qualified candidates. Accommodations, lighting, space, comfort, and workspace for taking the examination must allow all candidates to perform at their highest level of competency. Requirements at each site include but are not limited to:

(1) accessibility in accordance with the requirements of the Americans with Disabilities Act must be available for all qualified examinees;

(2) sufficient spacing between each examinee in the area in which the actual testing is conducted, or other appropriate and effective methods, to preclude any examinee from viewing another candidate's examinations;

(3) acoustics that allow each examinee to hear instructions clearly, using an electronic audio system if necessary;

(4) adequate lighting at each examinee's work space for reading fine print; and

(5) appropriate ventilation and temperature for the health and comfort of examinees.

(o) Department examination administration. Examination administrators shall implement and maintain the following examination administration procedures for a program utilizing the department examination.

(1) Security procedures shall be in place which protect the examination from compromise at all times. The examinations shall be stored and administered under secure conditions and shall be inventoried prior to and immediately following each administration of an examination. The examination may not be duplicated. Candidates shall have access to the examination only during examination administration.

(2) There shall be one proctor for every 35 candidates taking the examination. Proctors shall, by picture identification, confirm the accurate identity of each candidate. The examination administrator shall train and supervise the activities of any proctor(s).

(3) A candidate who speaks English as a second language may use a translation dictionary to translate English into their native language.

(4) An employee or a non-biased volunteer translator may be used as a translator of languages other than English to administer the examination orally. Translators shall be pre-approved by the examination administrator, and shall not compromise the integrity of the examination or the examination results of the candidate.

(5) Each candidate's examination results and personal information shall be held confidential. Such information may be made available only to the examinee and to persons designated in writing by the examinee in a dated document containing the examinee's original signature. The signed document must specify the name(s) of specific individuals the information may be released to and the exact information which may be provided. The department shall only release information in writing and only to appropriately designated and identified person(s).

(6) All completed answer sheets for the department examinations shall:

(A) be submitted by traceable means, and received by the department within seven working days of the examination date for grading and processing;

(B) be submitted in a condition acceptable for immediate scanning. Forms requiring extensive correction shall be returned to the examination administrator ungraded; and

(7) Only the department shall grade the department examination.

(p) Required fees. All fees are payable to the Department of State Health Services and are non-refundable. Fees must be submitted with the appropriate form that relates to the fee category. A current license shall only be issued when all past due fees and late fees are paid for all years of operation in Texas. The fees shall be:

(1) Certified food manager program license fee for initial, renewal, or change of ownership. A program fee shall be $600 for a two-year license for each certification or recertification program.

(2) Certified food manager program amended license fee. Program amendment fees shall be $300 for each certification or recertification program.

(3) Examination packet fee. The fee for the department examination shall be $25 and shall include a manager's certificate valid for five years if the candidate passes the examination. If the candidate fails the department examination, another candidate fee must be submitted to retake the examination.

(4) Two-year renewal certificate fee. The fee for renewal of a two-year certificate issued shall be $10.

(5) Replacement certificate. A replacement certificate fee for the department examination shall be $15.

(6) Late fee. Certified food manager licensees submitting a completed renewal application to the department after the expiration date shall pay an additional $100 as a late fee.

(7) Texas Online Authority fee. For all applications and renewal applications, the department is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.

(q) Department examination related to late fees. Department examinations will not be provided to any licensee that is over 30 days delinquent in renewing a certified food management program license.

(r) Certified food management program registry. The department shall maintain a program registry of all accredited certification and recertification programs. The registry shall be made available on the department website.

(s) Department audits. Examination and classroom audits may be conducted to assess program compliance. Licensee shall allow personnel authorized by the department access for the purposes of an audit. Audits may be based on analysis of data compiled by the department.

(t) Denial, suspension and revocation of program accreditation. An accredited food manager program license may be denied, suspended or revoked for the following reasons:

(1) a licensee, examination administrator or proctor breaches the security agreement;

(2) a licensee is delinquent in payment of fees as described in this section; or

(3) violation of the provisions of this section.

(u) Denial, suspension and revocation procedures. Denial, suspension and revocation procedures under this section shall be conducted in accordance with the Administrative Procedure Act, Government Code, Chapter 2001.

(v) Suspension of License Relating to Child Support and Child Custody.

(1) On receipt of a final court order or attorney general's order suspending a license due to failure to pay child support or for failure to comply with the terms of a court order providing for the possession of or access to a child, the department shall immediately determine if a license has been issued to the obligator named and:

(A) record the suspension of the license in the department's records;

(B) report the suspension as appropriate; and

(2) The department shall implement the terms of a final court or attorney general's order suspending a license without additional review or hearing. The board will provide notice as appropriate to the licensee or to others concerned with the license.

(3) The department may not modify, remand, reverse, vacate, or stay a court or attorney general's order suspending a license issued under the Family Code, Chapter 232, and may not review, vacate, or reconsider the terms of an order.

(4) A licensee who is the subject of a final court or attorney general's order suspending his or her license is not entitled to a refund for any fee paid to the department.

(5) If a suspension overlaps a license renewal period, an individual with a license suspended under this section shall comply with the normal renewal procedures in the Act and this chapter; however, the license will not be renewed until subsections (g) and (h) of this section are met.

§229.176.Certification of Food Managers.

(a) Purpose. This section is intended to provide the framework of certification programs for food managers in accordance with Texas Health and Safety Code (HSC), Chapter 438, Subchapter G. Certification of Food Managers supports demonstration of food safety knowledge, thereby reducing the risk of foodborne illness outbreaks caused by improper food preparation and handling techniques.

(b) Definitions. The following words and terms when used in this section shall have the following meanings unless the context clearly indicates otherwise.

(1) ANSI-CFP Program Accreditation--The American National Standard Institute (ANSI) and the Conference for Food Protection (CFP) accredits programs as outlined in the CFP: Standards for Accreditation of Food Protection Manager Certification Programs.

(2) Certificate--The documentation issued by the department or an organization that administers a department approved examination verifying that an individual has complied with the requirements of this section.

(3) Certification--The process whereby a certificate is issued.

(4) Certified food manager--A person who has demonstrated that he/she has the knowledge, skills and abilities required to protect the public from foodborne illness by means of successfully completing a food safety examination as described in this section.

(5) Certified food manager examination--A department approved examination for food manager certification.

(6) Department--Department of State Health Services.

(7) Examination administrator--An individual or individuals who are designated in writing to the department, by the licensee, who is responsible for administering food manager certification examinations.

(8) Examination site--The physical location at which the department approved examination is administered.

(9) Food--A raw, cooked, or processed edible substance, ice, beverage, or ingredient used or intended for use or for sale in whole or in part for human consumption, or chewing gum.

(10) Food establishment--

(A) Food establishment means an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption:

(B) Food establishment includes:

(i) an establishment that offers only prepackaged foods that are not potentially hazardous;

(ii) a produce stand that only offers whole, uncut fresh fruits and vegetables;

(iii) a food processing plant;

(v) an area where food that is prepared as specified in clause (iv) of this subparagraph is sold or offered for human consumption;

(vi) a Bed and Breakfast Limited facility as defined in these rules; or

(vii) a private home that receives catered or home-delivered food.

(11) Law--Applicable local, state and federal statutes, regulations and ordinances.

(12) Licensee--The individual, corporation, or company that is licensed by the department to administer a department approved examination for food manager certification and complies with the examination site requirements.

(13) Nonprofit organization--A civic or fraternal organization, charity, lodge, association, proprietorship or corporation possessing a 501(C) exemption under the Internal Revenue Code; or religious organizations meeting the definition of "church" under the Internal Revenue Code, §170(b)(1)(A)(I).

(14) Person--An association, corporation, partnership, individual or other legal entity, government or governmental subdivision or agency.

(15) Personal validation question--A question designed to establish the identity of the candidate taking a certified food manager examination by requiring an answer related to the candidate's personal information such as a driver's license number, address, date of birth, or other similar information that is unique to the candidate.

(16) Proctor--The examination administrator or a person who is designated to assist the examination administrator.

(17) Psychometric--Scientific measurement or quantification of human qualities, traits or behaviors.

(18) Reciprocity--Acceptance by state and local regulatory authorities of a department approved food manager certificate.

(19) Regulatory authority--The local, state, or federal enforcement body or authorized representative having jurisdiction over the food establishment.

(20) Secure--Access limited to the licensee or examination administrator.

(21) Traceable means--A method of mailing documents that can be tracked in the event of loss or delay.

(1) Certified food manager responsibilities. Responsibilities of a certified food manager include:

(A) identifying hazards in the day-to-day operation of a food establishment that provides food for human consumption;

(B) developing or implementing specific policies, procedures or standards aimed at preventing foodborne illness;

(C) coordinating training, supervising or directing food preparation activities and taking corrective action as needed to protect the health of the consumer;

(D) training the food establishment employees on the principles of food safety; and

(E) conducting in-house self-inspection of daily operations on a periodic basis to ensure that policies and procedures concerning food safety are being followed.

(2) Certification by a food safety examination. To be certified, a food manager must pass a department approved examination or a national examination recognized by the ANSI-CFP Program Accreditation.

(3) Certificate reciprocity. A certificate issued to an individual who successfully completes a department approved examination shall be accepted as meeting the training and examination requirements under HSC, §438.046(b).

(4) Certificate availability. The original food manager certificate shall be conspicuously posted at each food establishment.

(d) Licensing of certified food manager licensee. The department shall issue a license to certified food manager licensees meeting the requirements of this subsection. A license issued under these rules shall expire two years from the date of issuance. A license is not transferable on change of ownership, name, or change of site location.

(1) Application. Persons wishing to apply for a certified food manager license shall submit a completed application to the department.

(2) Certified food manager licensee fee. The completed license application shall include the appropriate non-refundable fee as specified in subsection (o)(1) of this section.

(3) Examination security agreement. The licensee shall submit a signed security agreement for each examination administrator using a department examination.

(4) Certification examination. Department approved examination(s) utilized by the certified food manager licensee shall be designated on the application.

(5) Number of examination sites utilized. The license application shall indicate the number of examination sites to be utilized under the certified food manager license.

(e) Responsibilities of licensee.

(1) Compliance with food manager laws and rules. The licensee is responsible for compliance with applicable food manager laws and rules.

(2) Payment of fees. All fees shall be non-refundable and paid as specified in subsection (o) of this section.

(3) Change of the examination administrator. The licensee shall submit a signed security agreement by a new examination administrator prior to administering the department examination. New examination administrators must receive instruction on administrative responsibilities for examination security and processing, based on the most current department guidelines.

(4) Submission of answer sheets. The licensee shall ensure that the answer sheets used for computerized grading shall be submitted to the department by traceable means. The completed answer sheets must be received by the department within seven working days of the examination date.

(f) Responsibilities of department examination administrators.

(1) Compliance with food manager laws and rules. The examination administrator is responsible for compliance with the food manager laws and rules applicable to examination administration.

(2) Examination security agreement. An examination administrator must complete, sign and date a security agreement and submit it to the department through the certified food manager licensee. The department may not issue examinations to examination administrators who do not have a signed security agreement on file with the department.

(3) Examination security. The examination administrator shall provide examination security at the examination site. All security measures specified in this section shall be met and maintained at all times during examination storage, administration and issuance.

(6) Replacement process for candidate certificate. Candidates shall be informed of the process for replacing lost or damaged certificates.

(g) Responsibilities for Internet examination providers.

(1) Compliance with food manager laws and rules. Internet examination providers are responsible for compliance with food manager laws and rules applicable to examination administration.

(2) Examination Security Agreement. Internet examination providers must submit the department security agreement signed by the certified food manager licensee.

(3) Examination Security. Candidates taking Internet examinations shall be advised on the application that outside training materials or assistance shall not be used during administration of the examination and that appropriate measures must be taken to assure that the examination is not compromised.

(h) Certified food manager certificates.

(1) General certificate issuance. Certificates shall be issued by the department or the organization that administers a department approved examination. Certificates issued after successful passage of a department approved examination shall be deemed to meet the requirements for food manager certification.

(2) Department certificate issuance. Certified food manager certificates for candidates who pass the department's examination will be mailed directly to the candidate.

(3) Certificate period. A certified food manager certificate issued by the department shall be valid for five years from the date of passing the examination. All certificates issued prior to the effective date of these rules will expire on the expiration date as stated on the certificate.

(4) Two-year renewal certificate. Food manager certificates issued by the department from May 6, 2004 to April 24, 2008, must be renewed every two years and may be renewed two times.

(5) Recertification. Candidates may become recertified by passing a department approved examination.

(6) Department certificate replacement. An individual requesting a certified food manager certificate replacement must submit a completed written application to the department with the appropriate non-refundable fee. Replacement certificates will bear the same expiration date as the original certificate.

(i) Department examination criteria. The department examination shall meet accepted psychometric standards for reliability, validity and passing score. The department examination shall consist of 75 statistically valid questions to be administered at one time following any voluntary training which may precede the examination.

(j) National examination criteria. National food manager examinations recognized by the ANSI-CFP Program Accreditation shall be considered department approved examinations.

(k) Internet examination criteria. Documentation that Internet examination questions meet accepted psychometric standards for reliability, validity, and passing score shall be submitted to the department. Each candidate shall receive a unique form of the examination with regard to question sequence. Internet examinations shall consist of 75 statistically valid questions that are administered at one time following any voluntary training that may precede the examination.

(l) Site requirements for administration of the department examination and national examinations. Examination sites utilizing the department examination or a national examination must comply with all legal requirements for safety, health, and accessibility for all qualified candidates. Accommodations, lighting, space, comfort, and workspace for taking the examination must allow all candidates to perform at their highest level of competency. Requirements at each site include but are not limited to:

(1) accessibility in accordance with the requirements of the Americans with Disabilities Act must be available for all qualified examinees;

(2) sufficient spacing between each examinee in the area where the actual examination is conducted, or other appropriate and effective methods, to preclude any examinee from viewing other candidates' examinations;

(3) acoustics that allow each examinee to hear instructions clearly, using an electronic audio system if necessary;

(4) adequate lighting at each examinee's workspace for reading fine print; and

(5) appropriate ventilation and temperature for the health and comfort of examinees.

(m) Department examination administration. Examination administrators shall implement and maintain the following examination administration procedures for a program utilizing the department examination:

(1) Security procedures shall be in place, which protect the examination from compromise at all times. The examinations shall be stored and administered under secure conditions and shall be inventoried prior to and immediately following each administration of an examination. The examination may not be duplicated. Candidates shall have access to the examination only during examination administration;

(3) A candidate who speaks English as a second language may use a translation dictionary to translate English into their native language;

(6) All completed answer sheets for the department examinations shall:

(A) be submitted by traceable means, and received by the department within seven working days of the examination date for grading and processing;

(B) be submitted in a condition acceptable for immediate scanning. Forms requiring extensive correction shall be returned to the examination administrator ungraded; and

(7) Only the department shall grade the department examination.

(n) Internet examination administration.

(1) Registration requirements for Internet examinations. The licensee shall register the candidates and require the candidates to:

(A) verify their identity;

(B) provide responses to ten personal validation questions; and

(2) Licensee examination disclosure information. The licensee shall inform the candidate that:

(A) reference materials shall not be used during the examination;

(B) the candidate shall not receive assistance from anyone during the examination; and

(3) Personal validation questions. The licensee shall verify a candidate's identity throughout the examination. The personal validation process must include the following elements:

(A) a minimum of five personal validation questions selected from the ten questions provided during registration shall be incorporated at various times during the examination;

(B) the personal validation questions must be randomly generated with respect to time and order;

(D) the examination session shall cease and the candidate shall be automatically exited from the examination if a candidate answers a personal validation question incorrectly.

(4) System support. The licensee of an approved Internet examination must include the following system capabilities and security measures:

(A) capability to browse or review previously completed examination questions;

(B) capability to navigate logically and systematically through the examination;

(D) security of personal candidate information in transit and at rest;

(E) a back-up and disaster recovery system capability; and

(F) assurance that examination data is maintained in a secure and safe environment and readily available to the department.

(5) Reporting requirements for non-proctored Internet examination administrators. Internet examination administrators who administer examinations in non-proctored locations shall submit a semi-annual report to enable the department to evaluate examination security and system performance. The report shall include:

(A) statistical data to enable measurement of central tendency, ranges of examination scores, standard deviation, standard error of measurement, and examination cut score;

(B) the number of personal validation questions used; and

(6) Time allotment for non-proctored Internet examination providers. Time allotted for administration of non-proctored examinations shall not exceed 90 minutes.

(o) Required fees. All fees are payable to the Department of State Health Services and are non-refundable. Fees must be submitted with the appropriate form that relates to the fee category. A current license shall only be issued when all past due fees and late fees are paid for all years of operation in Texas. Fees shall be:

(1) Certified food manager licensee fee. Certified food manager licensee fees shall be valid for a two-year period and shall be based on the number of sites at which the certified food manager licensee administers the examinations based on the following scale:

(A) one site:

(i) the two-year license fee for initial, renewal, or change of ownernship shall be $400; and

(ii) a license fee for a program amendment during the current licensure period shall be $200;

(B) two to ten sites:

(i) the two-year license fee for initial, renewal, or change of ownership shall be $1,000; and

(ii) a license fee for a program amendment during the current licensure period shall be $500;

(i) the two-year license fee for initial, renewal, or change of ownership shall be $2,000; and

(ii) a license fee for a program amendment during the current licensure period shall be $1,000.

(2) Examination packet fee. The fee for a department examination packet shall be $25 and shall include a manager's certificate valid for five years if the candidate passes the examination. If the candidate fails the department examination, another candidate fee must be submitted to retake the examination.

(3) Two-year renewal certificate fee. The fee for a two-year renewal certificate shall be $10.

(4) Replacement certificate fee. A replacement certificate fee for the department examination shall be $15.

(5) Late fee. A certified food manager licensee submitting a completed renewal application to the department after the expiration date shall pay an additional $100 as a late fee.

(6) Texas Online Authority fee. For all applications and renewal applications, the department is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.

(p) Department examination related to late fees. Department examinations will not be provided to any licensee that is over 30 days delinquent in renewing a license.

(q) Certified food manager licensee registry. The department shall maintain a registry of all licensed certified food manager licensees. The registry shall be made available on the department website.

(r) Department audits. Audits of certified food manager licensees shall be conducted to assess compliance with these rules. Audits may be based on analysis of data compiled by the department. Licensees shall allow personnel authorized by the department access for the purposes of an audit.

(s) Denial, suspension and revocation of certified food manager license. A certified food manager license may be denied, suspended or revoked for the following reasons:

(1) a licensee, examination administrator, or proctor breaches the security agreement;

(2) a licensee is delinquent in payment of fees as described in this section; or

(3) violation of the provisions of this section.

(t) Denial, suspension and revocation procedures. Denial, suspension and revocation procedures under this section shall be conducted in accordance with the Administrative Procedure Act, Government Code, Chapter 2001.

(u) Suspension of License Relating to Child Support and Child Custody.

(A) record the suspension of the license in the department's records;

(B) report the suspension as appropriate; and

(4) A licensee who is the subject of a final court or attorney general's order suspending his or her license is not entitled to a refund for any fee paid to the department.

§229.178.Accreditation of Food Handler Education or Training Programs.

(a) Purpose. This section is intended to provide the framework for accrediting food safety education or training programs for food handlers in accordance with the Health and Safety Code (HSC), Chapter 438, Subchapter D, §438.0431. A uniform standard governing the accreditation of food handler programs enhances the recognition of reciprocity among regulatory agencies and reduces the expense of duplicate education incurred when food handlers work in multiple regulatory jurisdictions. Education of the food handlers provides more qualified employees, thereby reducing the risk of foodborne illness outbreaks caused by improper food preparation and handling techniques.

(b) Definitions. The following words and terms when used in this section shall have the following meanings unless the context clearly indicates otherwise.

(1) Accredited food handler program--A program approved by the department that meets the standards set forth in this section.

(2) Department--Department of State Health Services.

(3) Food--A raw, cooked, or processed edible substance, ice, beverage or ingredient used or intended for use or for sale in whole or in part for human consumption, or chewing gum.

(4) Food establishment--

(A) Food establishment means an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption:

(B) Food establishment includes:

(i) an establishment that offers only prepackaged foods that are not potentially hazardous;

(ii) a produce stand that only offers whole, uncut fresh fruits and vegetables;

(iii) a food processing plant;

(v) an area where food that is prepared as specified in clause (iv) of this subparagraph is sold or offered for human consumption;

(vi) a Bed and Breakfast Limited facility as defined in these rules; or

(vii) a private home that receives catered or home-delivered food.

(5) Food handler--A food service employee who works with unpackaged food, food equipment or utensils, or food contact surfaces.

(6) Law--Applicable local, state and federal statutes, regulations and ordinances.

(7) Licensee--The individual, corporation or company that is licensed by the department to operate certified food handler programs.

(8) Person--An association, corporation, individual, partnership or other legal entity, government or governmental subdivision or agency.

(9) Reciprocity--Acceptance by state and local regulatory authorities of a food handler certificate issued by a department accredited food handler program.

(10) Regulatory authority--The local, state, or federal enforcement body or authorized representative having jurisdiction over the food establishment.

(11) Sponsor--An individual designated in writing to the department, by the licensee, as the person responsible for administrative management of the program.

(c) Food handler education and training program. The department may accredit an education or training program for basic food safety. The program shall include employee knowledge, responsibilities and training as required in the Texas Food Establishment Rules (TFER).

(1) Education or training course curriculum. A food handler training or education course shall include the following basic food safety principles.

(A) Foodborne disease outbreak. Instruction on foodborne disease outbreak shall include the definition of foodborne disease outbreak, the causes and preventive measures, including employee reporting requirements as defined in §229.163 of this title (relating to Management and Personnel).

(B) Good hygienic practices. Instruction on good hygienic practices shall include the procedures as required in §229.163 of this title.

(C) Preventing contamination by employees. Instruction shall include the training as required in §229.164(e)(1)(D) of this title (relating to Food), regarding the training requirements for contact with ready to eat food with their bare hands.

(D) Cross Contamination. Instruction on cross contamination shall include procedures on the prevention of cross-contamination of foods, sanitization methods and corrective actions as required in §229.164 of this title and §229.165 of this title (relating to Equipment, Utensils, and Linens).

(E) Time and temperature. Instruction shall include time and temperature control of foods to limit pathogen growth or toxin production as required in §229.164 of this title.

(2) Course length. The course length may not exceed two hours.

(3) Course examination. A training or education program may require a participant to achieve a passing score on an examination to successfully complete the course.

(4) Internet programs. A program accredited under this section may be delivered through the Internet.

(d) Food handler certificate.

(1) Certificate period. A food handler certificate issued by an accredited food handler program shall be valid for two years.

(2) Certificate reciprocity. Department accredited food handler program issued certificates shall be recognized statewide by regulatory authorities as the valid proof of successful completion of a department accredited food handler program.

(e) Licensing of an accredited food handler program licensee. The department shall issue a license of accreditation to each certified food handler program licensee who has demonstrated compliance with this section. A license issued under these rules will expire two years from the date of issuance. This license is not transferable on change of ownership, or site location.

(f) Responsibilities of a licensee.

(1) Compliance with certified food handler program law and rules. The licensee is responsible for compliance with applicable certified food handler program law and rules.

(2) Payment of fees. All fees shall be non-refundable and paid as specified in subsection (g) of this section.

(g) Required fees. All fees are payable to the department and are non-refundable. Fees must be submitted with the appropriate completed application that relates to the fee category. A current license shall only be issued when all past due fees and late fees are paid for all years of operation in Texas.

(1) Accredited food handler program license fee for initial, renewal, or change of ownership. A program fee shall be $600 for a two-year license for each food handler program.

(2) Accredited food handler program amended license fee. Program amendment fees shall be $300.

(3) Late fee. Accredited food handler program licensees submitting a completed renewal application to the department after the expiration date shall pay an additional $100 as a late fee.

(4) Texas Online Authority fee. For all applications and renewal applications, the department is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.

(h) Certified food handler program registry. The department shall maintain a program registry of all accredited food handler programs. The registry shall be made available on the department website.

(i) Department audits. Classroom audits may be conducted to assess program compliance. Licensee shall allow personnel authorized by the department access for the purposes of an audit. Audits may be based on analysis of data compiled by the department.

(j) Denial, suspension and revocation of program accreditation. An accredited food handler program license may be denied, suspended or revoked for the following reasons:

(1) a licensee is delinquent in payment of fees as described in this section; or

(2) violation of the provisions of this section.

(k) Denial, suspension and revocation procedures. Denial, suspension and revocation procedures under this section shall be conducted in accordance with the Administrative Procedure Act, Government Code, Chapter 2001.

(l) Suspension of License Relating to Child Support and Child Custody.

(A) record the suspension of the license in the department's records;

(B) report the suspension as appropriate; and

(4) A licensee who is the subject of a final court or attorney general's order suspending his or her license is not entitled to a refund for any fee paid to the department.

(5) If a suspension overlaps a license renewal period, an individual with a license suspended under this section shall comply with the normal renewal procedures in the Act, and this chapter; however, the license will not be renewed until subsection (g) of this section is met.

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

Filed with the Office of the Secretary of State on April 1, 2008.

TRD-200801702

Lisa Hernandez

General Counsel

Department of State Health Services

Effective date: April 24, 2008

Proposal publication date: December 14, 2007

For further information, please call: (512) 458-7111 x6972

Chapter 417. TDMHMR AND FACILITY RESPONSIBILITIES

The Executive Commissioner of the Health and Human Services Commission (commission) on behalf of the Department of State Health Services (department) adopts the repeal of §§417.301 - 417.311 and §§417.313 - 417.316 and new §§417.301 - 417.306 and §417.308, concerning the polices and standards for volunteer engagement and fundraising at state hospitals. The new §417.303 and §417.308 are adopted with changes to the proposed text as published in the December 7, 2007, issue of the Texas Register (32 TexReg 9092). The repeal of §§417.301 - 417.311 and §§417.313 - 417.316, and new §§417.301, 417.302, and 417.304 - 417.306 are adopted without changes and, therefore, the sections will not be republished. New §417.307 was published in the same issue, but is being withdrawn and will not be adopted.

BACKGROUND AND PURPOSE

The repeals, §§417.301 - 417.311 and §§417.313 - 417.316, describe the policies and standards for volunteer engagement, fundraising and solicitation, donations, naming of donations, Volunteer Services Councils (VSCs), and auditing and reporting guidelines. VSC is defined as a 501(c)(3) non-profit organization formed for generating resources on behalf of the state hospital. The repeal will eliminate obsolete rules of the former Texas Department of Mental Health and Mental Retardation that were transferred to the department in September 2004 in compliance with Acts 2003, 78th Legislature, Regular Session, Chapter 198 (House Bill 2292).

These rules will be replaced by new department volunteer and community engagement rules and three policies: (1) Volunteer and Intern Engagement; (2) Fund-Raising and Solicitation (department wide); and (3) VSCs, which provide an up-to-date, reorganized, and clarified process.

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 417.301 - 417.311 and §§417.313 - 417.316 have been reviewed and the department has determined that reasons for adopting the sections do not continue to exist except for parts of §§417.309, 417.311, and 417.313, which have been rewritten into the new rules.

SECTION-BY-SECTION SUMMARY

The repeal of §§417.301 - 417.311 and §§417.313 - 417.316 is necessary because the internal policies will now provide standards and processes for working with the volunteers and interns; fundraising for the benefit of department programs and clients as well as internal fundraising; and working with the VSCs, private donors, and private organizations.

The new §§417.301 - 417.306 and §417.308 update legacy agency names, agency locations, and definitions. The new §§417.305, 417.306, and 417.308 describe the relationship of donors to the department and employees of the department; relationship of private organizations (VSCs) to the department; and all individuals and groups volunteering or partnering with the department that must abide by all applicable department rules, policies, and procedures. The new §417.307 is withdrawn because the Volunteer Services State Council was abolished on December 27, 2007.

COMMENTS

The department, on behalf of the commission, did not receive any public comments concerning the proposal during the comment period. However, the department staff on behalf of the commission provided comments and the commission has reviewed and agrees to the following changes that will provide consistency in definitions and delete outdated references.

Concerning the definitions in §417.303(1), "501(c)(3) organization", §417.303(4), "Consumer Affairs", §417.303(6), "Donor", §417.303(8), "Gift", and §417.303(9), "Volunteer Services Council", revisions were made to be consistent with the definitions in the new department policies for Volunteers, Fund-Raising, and Volunteer Services Councils.

The definition of §417.303(10), "Volunteer Services State Council" (VSSC) was deleted, and the new §417.307 pertaining to the VSSC was withdrawn to reflect that the VSSC was abolished on December 27, 2007, which occurred after the rule was proposed. Therefore, the rule is no longer necessary.

Section 417.308 was revised to reflect the department's main telephone number for the contact information.

The title of new Subchapter G was amended to state "Volunteer and Community Engagement" instead of proposed "Community Engagement" because it more accurately reflects the content of the rules.

LEGAL CERTIFICATION

Subchapter G. COMMUNITY RELATIONS

25 TAC §§417.301 - 417.311, 417.313 - 417.316

STATUTORY AUTHORITY

The repeal is adopted under Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001; Government Code, Chapter 2109, which governs volunteer programs in a state agency; and Government Code, Chapter 2255, concerning the relationship of a state agency to a private donor or a private organization. The review of the 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 April 4, 2008.

TRD-200801756

Lisa Hernandez

General Counsel

Department of State Health Services

Effective date: April 24, 2008

Proposal publication date: December 7, 2007

For further information, please call: (512) 458-7111 x6972

Subchapter G. VOLUNTEER AND COMMUNITY ENGAGEMENT

25 TAC §§417.301 - 417.306, 417.308

STATUTORY AUTHORITY

The new sections are adopted under Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001; Government Code, Chapter 2109, which governs volunteer programs in a state agency; and Government Code, Chapter 2255, concerning the relationship of a state agency to a private donor or a private organization. The review of the rules implements Government Code, §2001.039.

§417.303.Definitions.

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

(1) 501(c)(3) organization--An organization recognized by the Internal Revenue Service as a non-profit corporation and granted the right to receive tax deductible contributions under §501(c)(3) of the Internal Revenue Code.

(2) Client--A person receiving services at a state hospital or clinic.

(3) Community relations director--The employee responsible for coordinating a state hospital's community relations functions, volunteer programs, fund-raising, and donations.

(4) Consumer Affairs--The unit within the Center for Consumer and External Affairs whose staff are responsible for providing support to staff for volunteer services councils.

(5) Department--The Department of State Health Services.

(6) Donor--An individual, community group, or business entity who wants to donate a gift to the department.

(7) Employee--An individual who is legally employed to perform work and who is paid a salary or wage by the department.

(8) Gift--A donation of money, property, or in-kind good or in-kind service. This term does not include funding under a federal grant, state grant, or private non-profit organization grant for which the department has made a formal written application and is subject to an agreement between the recipient and the donor relating to the use of the grant.

(9) Volunteer Services Council (VSC)--A 501(c)(3) volunteer organization, including its board, that is formed to generate resources on behalf of a state hospital and clients served.

§417.308.Department Policies.

(a) All individuals and groups volunteering or partnering with the department must abide by all applicable department rules, policies, and procedures.

(b) Department policies and forms can be obtained by contacting the Consumer Affairs Unit at the Department of State Health Services at (512) 458-7111.

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

Filed with the Office of the Secretary of State on April 4, 2008.

TRD-200801757

Lisa Hernandez

General Counsel

Department of State Health Services

Effective date: April 24, 2008

Proposal publication date: December 7, 2007

For further information, please call: (512) 458-7111 x6972