Proposed Rules Title 40

TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 2. DEPARTMENT OF ASSISTIVE AND REHABILITATIVE SERVICES

CHAPTER 101. ADMINISTRATIVE RULES AND PROCEDURES

(Editor's note: The Texas Register has excluded from this issue proposed rulemaking documents for Title 40, Chapter 101, Subchapter E, relating to Appeals and Hearing Procedures, because the numbering scheme conflicted with existing sections of the 40 TAC Chapter 101; therefore, references to those rules in the Department of Assistive and Rehabilitative Services' other rulemaking documents may not be accurate.)

The Texas Health and Human Services Commission ("HHSC"), on behalf of the Texas Department of Assistive and Rehabilitative Services ("DARS"), proposes amendments and repeal to the rules of the Texas Department of Assistive and Rehabilitative Services, Title 40, Part 2, Chapter 101, Administrative Rules and Procedures, Subchapters A, B, C, D, F and I.

Specifically, DARS is proposing amendments to Subchapter A, General Rules, §101.101, Definitions; Subchapter B, Purchase of Goods and Services, §101.201, Purchase for Individual Consumers, and §101.203, Standards for Facilities and Providers of Services; Subchapter C, Historically Underutilized Businesses, §101.551, Purpose, §101.553, Applicability, §101.555, Definitions, and §101.557, Adoption of Rules; Subchapter D, Councils and Committees, §101.601, Rehabilitation Council of Texas, §101.603, State Independent Living Council, and §101.605, Early Childhood Intervention Advisory Committee; and renaming the title of Subchapter F, from "Durable Medical Equipment and Assistive Technology Listing", to "General Rules", and removing the Division 2 designation, along with its title; however, the rules in Subchapter F remain unchanged. Additionally, DARS is proposing the repeal of Subchapter I, Administrative Rules and Procedures Pertaining to Early Childhood Intervention Services, Division 2, Agency Administration, §101.5641, Employee Training and Education.

The amendments and repeal are being proposed pursuant to DARS' four-year rules review of Chapter 101, as required by Texas Government Code §2001.039. In accordance with Texas Government Code §2001.039, DARS conducted its four-year review of Chapter 101. As a result of the review, DARS determined that the reasons for initially adopting these rules continue to exist. However, the review identified areas where amendments and repeal were needed to update and/or clarify legal references and citations, remove obsolete language, and provide further clarification of rules provisions. Notice of the proposed rule review of Chapter 101 was published in the November 30, 2007, issue of the Texas Register (32 TexReg 8863). Note that Subchapter E, Appeals and Hearing Procedures for Vocational Rehabilitation and Independent Living Programs, of Chapter 101, was also included in the notice of intent to review Chapter 101. However, the results of the review of Subchapter E, which are to repeal and replace Subchapter E, are being proposed contemporaneously elsewhere in this issue of the Texas Register.

The following statutes and regulations authorize the proposed amendments and repeal: The Rehabilitation Act of 1973, as amended, 29 U.S.C. §701 et seq.; the regulations of the Department of Education, Rehabilitation Services Administration, 34 C.F.R. Part 361, 363, 364, 365, 366, and 367, as amended; Texas Human Resources Code, Chapters 73, 81, 82, 91, 111, 116, and 117; Texas Health and Safety Code, Chapter 432; The Individuals with Disabilities Education Act, as amended, 20 U.S.C. §1400 et seq. and implementing regulations; 29 U.S.C. §§725 and 796d; 42 U.S.C. §§300x-3(a), 300x-4(e), and 15025; 34 C.F.R. Part 303, Subpart G; and Texas Government Code, Chapters 411, 551, 552, 559, 2001, 2155, and 2161.

Bill Wheeler, Chief Financial Officer, Texas Department of Assistive and Rehabilitative Services, estimates that for each year of the first five years that the proposed rules are in effect, there will be no foreseeable fiscal implications for state or local governments as a result of enforcing or administering the rules.

Mr. Wheeler has determined that for each year of the first five years the proposed rules are in effect, the public benefit anticipated as a result of enforcing the proposed rules will be assurances to the public that the necessary rules are in place to provide clarity to the general administrative rules and procedures of DARS. He has also determined that there will be no probable economic cost to persons who are required to comply with the proposed rules. Furthermore, in accordance with Texas Government Code §2001.022, Mr. Wheeler has determined that the proposed rules will not affect a local economy, and, therefore, no local employment impact statement is required. Finally, Mr. Wheeler has determined that the proposed rules will have no adverse economic effect on small businesses or micro-businesses.

Written comments on the proposed rules may be submitted within 30 days of publication of this proposal in the Texas Register to Nancy Mikulencak, Rules Coordinator, Texas Department of Assistive and Rehabilitative Services, 4800 North Lamar Boulevard, Suite 200, Austin, Texas 78756.

SUBCHAPTER A. GENERAL RULES

40 TAC §101.101

The amendments are proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§101.101.Definitions.

The following words and terms, when used in this subchapter, shall have the following meaning, unless the context clearly indicates otherwise:

(1) Department/DARS--The Department of Assistive and Rehabilitative Services.

(2) Counselor--An employee of the Department who is trained to provide vocational guidance and counseling and meets the minimum qualifications designated in a functional job description.

[(3) Extended employment--An occupation-oriented facility operated by a not-for-profit agency, public or private, which, except for its staff, employs only individuals with mental or physical disabilities.]

(3) [~~(4)~~] State plan--The plan for vocational rehabilitation services submitted by the Department of Assistive and Rehabilitative Services, Division for Rehabilitation Services and Division for Blind Services in compliance with the Rehabilitation Act of 1973, as amended, Title I.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802924

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER B. PURCHASE OF GOODS AND SERVICES

40 TAC §101.201, §101.203

No other statute, article, or code is affected by this proposal.

§101.201.Purchases for Individual Consumers of Vocational Rehabilitation Services .

Purchases of goods and/or services for individual consumers must be consistent with the Individualized Plan for Employment (IPE) which is jointly developed by the DRS or DBS Counselor and eligible consumer.

(1) - (6) (No change.)

§101.203.Standards for Facilities and Providers of Services.

(a) Facilities and providers of services used by the Department in providing vocational rehabilitation services are required to satisfy the following minimum standards.

(1) - (7) (No change.)

(b) The Department does not [~~operate,~~] license, certify, or register facilities or providers of services including those used by the Department in providing vocational rehabilitation services, except for blind vendors licensed under Human Resources Code Chapter 94, providers who are interpreters for the individuals who are deaf or hard of hearing, certified by the Department's Board for Evaluation of Interpreters under Chapter 109 of this title (relating to Office for Deaf and Hard of Hearing Services) and providers who are registered Early Intervention Specialists (EIS), under Chapter 108 of this title (relating to Division for Early Childhood Intervention Services), [~~under the Human Resource Code, §48.036,~~] but does assure that services provided comply with standards set by the Department.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802925

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER C. HISTORICALLY UNDERUTILIZED BUSINESSES

40 TAC §§101.551, 101.553, 101.555, 101.557

No other statute, article, or code is affected by this proposal.

§101.551.Purpose.

The purpose of this subchapter is to establish the authority and responsibility to promote full and equal business opportunities for all businesses in state contracting in accordance with results of the [~~goals specified in the~~ ] State of Texas Disparity Study. It is the policy of the State of Texas and the Department of Assistive and Rehabilitative Services to encourage the use of historically underutilized businesses (HUBs) and to implement this policy through race, ethnic, and gender-neutral means.

§101.553.Applicability.

This subchapter applies to all contracts and purchase orders established under the requirements of Government Code Chapter 2155. It also applies to all bids, proposals, offers, or other applicable expressions of interest over $100,000 as defined in Texas Administrative Code, Title 34 [1], Part 1 [5], Chapter 20 [~~111~~], Subchapter B, Historically Underutilized Business Program, §20.14, Subcontracts [ ~~§111.14~~] and Government Code Chapter 2161 , Subchapter F (relating to Historically Underutilized Businesses) [~~HUB subcontracting responsibilities~~].

§101.555.Definitions.

In this subchapter, the following definitions apply.

(1) Economically Disadvantaged Person--A person who is economically disadvantaged because of the person's identification as a member of a certain group, as defined in 34 [1] TAC §20.12 [ ~~§111.12~~] (relating to Definitions), and who has suffered the effects of discriminatory practices or other similar insidious circumstances over which the person has no control.

(2) Good Faith Effort (GFE)--Evidence of certain criteria used by prime contractors to promote inclusion of HUBs in contracts with an expected value of $100,000 or more as defined in 34 [1] TAC §20.13 [~~§111.13~~ ] (relating to Annual Procurement Utilization Goals) and §20.14 [~~§111.14~~] (relating to [ ~~Annual Procurement Utilization Goals and~~ ] Subcontracts). When applied to agency GFE, the state auditor shall consider whether the agency has adopted rules under §2161.003, Government Code; has used the Texas Comptroller of Public Accounts, Texas Procurement and Support Services [ ~~Building and Procurement Commission (TBPC)~~ ] directory and other resources to identify HUBs that are able to contract with the agency; made good faith, timely efforts to contact identified HUBs regarding contracting opportunities; [~~and~~ ] conducted its procurement program in accordance with the good faith methodology set out in the Comptroller's [~~TBPC~~] rules and established goals for contracting with HUBs in each procurement category based on scheduled fiscal year expenditures and the availability of HUBs in each category as determined by rules adopted under §2161.002, Government Code.

(3) Historically Underutilized Business (HUB)--A business entity that is a corporation, sole proprietorship, partnership, joint venture, etc. owned and operated by an economically disadvantaged person or persons as defined in 34 [1] TAC §20.12 [~~§111.12~~ ] (relating to Definitions) with its principal place of business in Texas.

(4) HUB Subcontracting Plan (HSP)--a plan required to be submitted with bids, proposals, offers, or other applicable expressions of interest that determine or describe HUB subcontracting opportunities probable under the contract as defined in 34 [1] TAC §20.13 (relating to Annual Procurement Utilization Goals) [ ~~§111.13~~] and §20.14 [ ~~§111.14~~] (relating to [ ~~Annual Procurement Utilization Goals and~~] Subcontracts).

§101.557.Adoption of Rules.

In accordance with Government Code §2161.003, the Department of Assistive and Rehabilitative Services adopts the rules of the Texas Comptroller of Public Accounts, Texas Procurement and Support Services [~~Building and Procurement Commission~~] at 34 [1] TAC , Chapter 20 [ ~~111~~], Subchapter B (relating to Historically Underutilized Business Program), which rules were promulgated by the General Services Commission pursuant to Government Code, §2161.002.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802926

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER D. COUNCILS AND COMMITTEES

40 TAC §§101.601, 101.603, 101.605

No other statute, article, or code is affected by this proposal.

§101.601.Rehabilitation Council of Texas.

(a) - (b) (No change.)

(1) - (3) (No change.)

(4) coordinate with other councils within the state, including the State Independent Living Council established under 29 United States Code §796d, the advisory panel established under §612(a)(20) of the Individuals with Disabilities Education Act 20 U.S. C. 1412 (a)(21), [ ~~20 United States Code §1431(a)(12),~~] the State [ ~~Planning~~] Council on Developmental Disabilities described in 42 United States Code §15025, [ ~~§6024,~~ ] and the State Mental Health Planning Council established under 42 United States Code §300x-3(a), and the State workforce investment board; [~~§300x-4(e);~~]

(5) - (6) (No change.)

(d) - (e) (No change.)

(f) Duration of council. The council will be abolished on August 31, 2011 [~~December 31, 2009~~].

§101.603.State Independent Living Council.

(a) Legal basis. The State Independent Living Council is created as an independent council pursuant to the Rehabilitation Act of 1973, as amended, 29 United States Code §796d. Failure to establish the council would prohibit federal financial assistance.

(b) - (d) (No change.)

(e) Duration of council. The council will be abolished on August 31, 2011 [~~December 31, 2009~~].

§101.605.Early Childhood Intervention Advisory Committee.

(a) - (s) (No change.)

(t) Duration. The committee will be abolished on August 31, 2011 [~~December 31, 2009~~].

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802927

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER I. ADMINISTRATIVE RULES AND PROCEDURES PERTAINING TO EARLY CHILDHOOD INTERVENTION SERVICES

DIVISION 2. AGENCY ADMINISTRATION

40 TAC §101.5641

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Department of Assistive and Rehabilitative Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§101.5641.Employee Training and Education.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802928

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

CHAPTER 105. GENERAL CONTRACTING RULES

The Texas Health and Human Services Commission ("HHSC"), on behalf of the Texas Department of Assistive and Rehabilitative Services ("DARS"), proposes to amend the DARS rules in Title 40, Part 2, Chapter 105, General Contracting Rules, by amending Subchapter A, General Contracting Information, §105.1003, Definitions; Subchapter B, Contractor Requirements, §105.1013, General Requirements for Contracting; and Subchapter E, Adverse Actions, §105.1301, Adverse Actions.

Specifically, these amendments update existing administrative contracting procedures and clarify the definition of "contract-related records" in §105.1003(7), contractor requirements in §105.1013(a) and (f), and reasons DARS may impose adverse actions in §105.1301(a).

In accordance with Texas Government Code §2001.039, DARS conducted a four-year review of Title 40, Part 2, Chapter 105, of the DARS rules. Notice of the proposed rule review of Chapter 105 was published in the November 30, 2007, issue of the Texas Register (32 TexReg 8863). DARS determined that the reasons for initially adopting these rules continue to exist. However, as a result of the review, DARS determined that amendments were needed to clarify and update existing administrative contracting procedures in accordance with state law as described above.

The following statutes and regulations authorize the proposed amendments: Texas Government Code, Chapters 2155, 2252, 2261, and 2262.

Bill Wheeler, Chief Financial Officer, Texas Department of Assistive and Rehabilitative Services, estimates that for each year of the first five years that the proposed amendments will be in effect, there will be no foreseeable fiscal implications for state or local government costs or revenues as a result of enforcing or administering the amendments.

Mr. Wheeler has determined that for each year of the first five years the proposed amendments will be in effect, the public benefit anticipated as a result of enforcing the proposed amendments will be assurances to the public that the necessary rules are in place to increase efficiencies in the agency's contracting procedures.

Mr. Wheeler has also determined that there will be no probable economic cost to persons who are required to comply with the proposed amendments. Further, in accordance with Texas Government Code §2001.022, he has determined that the proposed amendments will not affect a local economy, and, therefore, no local employment impact statement is required. Finally, Mr. Wheeler has determined that the proposed amendments will have no adverse economic effect on small businesses or micro-businesses.

Written comments on the proposal may be submitted within 30 days of publication of this proposal in the Texas Register to Nancy Mikulencak, Rules Coordinator, Texas Department of Assistive and Rehabilitative Services, 4800 North Lamar Boulevard, Suite 200, Austin, Texas 78756.

SUBCHAPTER A. GENERAL CONTRACTING INFORMATION

40 TAC §105.1003

The amendments are proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provide the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§105.1003.Definitions.

The following words and terms, when used in this chapter and Chapter 101 of this title (relating to Administrative Rules and Procedures), shall have the following meanings, unless the context clearly indicates otherwise.

(1) - (6) (No change.)

(7) Contract-related [~~Contractor~~] records--All financial and programmatic records, supporting documents, papers, statistical data, or any other written or electronic materials that are pertinent to each specific contract instrument.

(8) - (16) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802936

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER B. CONTRACTOR REQUIREMENTS

40 TAC §105.1013

The amendment is proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provide the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§105.1013.General Requirements for Contracting.

(a) To contract with the Department of Assistive and Rehabilitative Services (DARS) the contractor must:

(1) - (5) (No change.)

(6) [~~if applicable,~~] be authorized by law or the secretary of state to conduct business in the state of Texas;

(7) [~~if applicable,~~] certify in writing that the contractor's [~~corporate~~] taxes due to the state of Texas are current;

(8) - (13) (No change.)

(14) notify DARS in writing of changes to contract information according to the requirements of their contract. Unless otherwise specified in the contract, the contractor must notify DARS:

(A) within 10 calendar days after any address change, which includes the location of the agency's office, physical address, and/or mailing address;

(B) immediately of any change in administrator or director; [~~and~~]

(D) prior to any change in entity name or type; and

(E) within 10 calendar days of any change in legal status with the Texas Secretary of State; and

(15) report suspected violation of rules or laws to the appropriate investigative authority. This includes reporting abuse, neglect, and exploitation issues to the Texas Department of Family and Protective Services (DFPS) or to the appropriate Texas Department of Aging and Disability Services (DADS) licensing staff.

(b) - (e) (No change.)

(f) DARS may choose not to enter into a contract:

(1) when, in DARS' opinion, the contractor, potential contractor or a controlling party has a prior unsatisfactory history in contracting with DARS or with another Health and Human Services agency.

(2) if the contractor or potential contractor:

(A) subcontracts any direct care services without specific authorization from DARS; and/or

(B) assigns or transfers the contract without prior written approval of DARS.

(3) when DARS determines it is not in the best interest of DARS.

(g) - (i) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802937

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER E. ADVERSE ACTIONS

40 TAC §105.1301

No other statute, article, or code is affected by this proposal.

§105.1301.Adverse Actions.

(a) The Department of Assistive and Rehabilitative Services (DARS) may impose an adverse action when the contractor fails to follow the terms of the contract and/or fails to comply with program rules, policies, and procedures. DARS may impose adverse actions for reasons including but not limited to:

(1) - (7) (No change.)

(8) the contractor's exclusion from contracting with DARS , [ ~~or with~~] any Health and Human Services program , or the federal government;

(9) validated report(s) of abuse, neglect, or exploitation when the perpetrator is an owner, employee, or volunteer who has direct access to consumers.[;]

(b) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802938

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

CHAPTER 106. DIVISION FOR BLIND SERVICES

The Texas Health and Human Services Commission ("HHSC"), on behalf of the Texas Department of Assistive and Rehabilitative Services ("DARS"), proposes to amend and repeal the DARS rules in Title 40, Part 2, Chapter 106, Division for Blind Services. This proposal amends Subchapter C, Vocational Rehabilitation Program by updating and/or clarifying legal references, removing obsolete language, and providing further clarification of the following rules: §§106.507, 106.509, 106.513, 106.521,106.527, 106.535, 106.551, 106.555, 106.557, 106.564, 106.568, 106.572, 106.582, 106.603, and 106.629; Subchapter D, Independent Living Programs, §§106.855, 106.859, and 106.933; Subchapter F, Blindness Education, Screening and Treatment Programs, §§106.1103, 106.1105, and 106.1107; and by amending the title to Subchapter F, to Blindness Education, Screening, and Treatment Program; Subchapter G, Business Enterprises of Texas, §106.1227 and §106.1229; Subchapter I, Blind Children's Vocational Discovery and Development Program, §§106.1445, 106.1475, 106.1487 and 106.1489; Subchapter K, Memoranda of Understanding, §106.1607; Subchapter L, Advisory Committees and Councils, §106.1703; and Subchapter M, Donations, §106.1815. Also, this proposal repeals Subchapter C, Vocational Rehabilitation Program, §106.511; Subchapter K, Memoranda of Understanding, §106.1605; and Subchapter L, Advisory Committees and Councils, §106.1701 and §106.1705.

The amendments and repeals are being proposed pursuant to the DARS four-year rule review of Chapter 106, as required by Texas Government Code §2001.039. In accordance with Texas Government Code §2001.039, DARS conducted its four-year review of Chapter 106. As a result of the review, DARS determined that the reasons for initially adopting these rules continue to exist. However, the review identified areas where amendments and repeals were needed to update and/or clarify legal references, remove obsolete language, and provide further clarification of rules provisions. Notice of the proposed rules review of Chapter 106 was published in the November 30, 2007, issue of the Texas Register (32 TexReg 8864).

The following statutes authorize the promulgation of the proposed rules: Rehabilitation Act of 1973, Section 701 et seq. (as hereafter amended), the Randolph-Sheppard Act, Texas Government Code, §2001.01 et seq., and Texas Human Resources Code Chapters 22, 35, and 91 (as hereafter amended).

Bill Wheeler, Chief Financial Officer, Texas Department of Assistive and Rehabilitative Services, estimates that for each year of the first five years that the proposed rules will be in effect, there will be no foreseeable fiscal implications for state or local government costs or revenues as a result of enforcing or administering the rules.

Mr. Wheeler has also determined that there will be no probable economic cost to persons who are required to comply with the proposed rules. Further, in accordance with Texas Government Code §2001.022, he has determined that the proposed rules will not affect a local economy, and, therefore, no local employment impact statement is required. Finally, Mr. Wheeler has determined that the proposed rules will have no adverse economic effect on small businesses or micro-businesses.

SUBCHAPTER C. VOCATIONAL REHABILITATION PROGRAM

DIVISION 1. GENERAL INFORMATION

40 TAC §§106.507, 106.509, 106.513

No other statute, article, or code is affected by this proposal.

§106.507.Public Access to Forms and Documents.

(a) (No change.)

(b) The Division's rules are published on the Department of Assistive and Rehabilitative website at www.dars.state.tx.us. [~~Requests for copies are subject to the Division's rules regarding charges for public records.~~]

§106.509.Definitions.

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

(1) - (14) (No change.)

(15) Individual with a most significant disability--An individual with a significant disability who:

(A) is seriously limited in four or more functional capacities (such as the inability to obtain or retain employment independently, obtain a driver's license without special optical accommodations, care for self independently, access standard print, travel independently, socially interact with others, access technology without special adaptations, or manage one's home independently) in terms of an employment outcome;

(B) requires, in addition to comprehensive assessment, counseling, guidance, and employment assistance, at least four other substantial vocational rehabilitation [VR] services; and

(16) - (34) (No change.)

§106.513.Service Delivery.

(a) - (b) (No change.)

(c) Reasonable Timeframes for Service Delivery. The following timeframes shall serve as benchmarks to service delivery staff and monitoring staff in evaluating a consumer's progress towards the expected outcome in the service plan.

(1) Once an individual has submitted an application for services, an eligibility determination will be made within 60 days, unless exceptional and unforeseen circumstances beyond the control of the division [~~commission~~ ] precludes a determination within 60 days and the division [ ~~agency~~] and the individual agree to a specific extension of time; or a trial work period is necessary.

(2) - (5) (No change.)

(6) The division [~~agency~~] monitors and assists for not more than 120 days a consumer who has completed their services and is employed.

(7) (No change.)

(d) Financial planning information. Quarterly budget information shall be provided to division field [~~agency regional~~] directors. Field [~~Regional~~] directors will disseminate this information to all caseload carrying staff for financial planning purposes.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802939

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

40 TAC §106.511

No other statute, article, or code is affected by this proposal.

§106.511.Appeals of Determinations.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802940

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

DIVISION 2. BASIC PROGRAM REQUIREMENTS

40 TAC §§106.521, 106.527, 106.535

No other statute, article, or code is affected by this proposal.

§106.521.Application.

(a) A person is considered to have submitted an application when the individual or the individual's representative, as appropriate:

(1) has completed and signed the division [~~agency's~~ ] application form or has otherwise requested services;

(2) has provided information necessary to initiate an assessment to determine eligibility and priority for services; and

(3) is available to complete the assessment process.

(b) (No change.)

§106.527.Eligibility Determination Time Frame.

(a) - (b) (No change.)

(c) Eligibility shall be determined prior to applying Division 4 of this subchapter , if appropriate (relating to Order of Selection for Services) and Division 5 of this subchapter (relating to Consumer Participation in Cost of Services).

§106.535.Individualized Plan for Employment (IPE).

(a) - (g) (No change.)

(h) Prior to suspending, reducing, or terminating any planned service in the IPE, the division [~~agency~~] shall send written notification of intent to the consumer's last known address.

(i) The division [~~agency~~] shall suspend, reduce or terminate a consumer's planned services no sooner than 10 working days after written notification has been mailed to the consumer.

[(j) The Division shall not institute a suspension, reduction, or termination of services being provided under an IPE in instances in which the consumer has filed a request for a formal hearing or informal review, pending final resolution unless the individual or, in an appropriate case, the individual's representative so requests or the agency has evidence that the services have been obtained through misrepresentation, fraud, collusion, or criminal conduct on the part of the individual.]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802941

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

DIVISION 3. VOCATIONAL REHABILITATION SERVICES

40 TAC §§106.551, 106.555, 106.557, 106.564, 106.568, 106.572, 106.582

No other statute, article, or code is affected by this proposal.

§106.551.Goods and Services.

(a) - (b) (No change.)

(c) Subject to the limitation prescribed in subsection (b) of this section, the following vocational rehabilitation services are available on an as-needed basis:

(1) - (5) (No change.)

(6) maintenance as defined in §106.559 of this title (relating to Maintenance; [~~§106.511 of this title (relating to Appeals of Determinations);~~]

(7) transportation as defined in §106.561 [ ~~§106.511~~] of this title (relating to transportation);

(8) - (12) (No change.)

(13) personal assistance services as defined in §106.574 [~~§106.511~~] of this title relating to Personal Assistance Services);

(14) post-employment services as defined in §106.568 [~~§106.511~~] of this title (relating to Post-Employment Services);

(15) occupational licenses, tools, equipment, and initial stocks and supplies;

(16) transition services as defined in §106.576 [ ~~§106.511~~] of this title relating to Transition Services;

(17) referral services;

(18) supported employment services as defined in §106.578 [~~§106.511~~] of this title (relating to Supported Employment Services);

(19) rehabilitation technology services as defined in §106.580 [~~§106.511~~] of this title relating to Rehabilitation Technology Services); and

(20) technical assistance and other consultation services.

(d) - (g) (No change.)

§106.555.Physical and Mental Restoration Services.

Whenever possible and practical, the consumer's choice of health professionals and appropriate facilities is honored, as long as such professionals and facilities are willing to accept reimbursement in accordance with the division's [~~commission's~~] maximum affordable payment schedule (MAPS).

§106.557.Vocational and Other Training Services.

(a) (No change.)

(b) Academic training in institutions of higher education (universities, colleges, community or junior colleges, vocational schools, technical institutes, or hospital schools of nursing) shall be subject to the following:

(1) (No change.)

(2) No academic training shall be paid from vocational rehabilitation funds unless maximum efforts have been made by the division [~~agency~~ ] and the consumer to secure grant assistance in whole or in part from other sources to pay for such training.

(3) - (12) (No change.)

§106.564.Interpreter Services and Note-taking Services for Individuals Who Are Deaf and Tactile Interpreting for Individuals Who Are Deaf-Blind.

If available, the Division shall use interpreters certified by the Department of Assistive and Rehabilitative Services [ ~~DARS~~], Division for Rehabilitation Services, Office for Deaf and Hard of Hearing Services or by the Registry of Interpreters in the delivery of services to persons who are deaf or deaf-blind.

§106.568.Post-Employment Services.

(a) (No change.)

(b) Post-employment services must be incidental to the original impediment to employment, ancillary to the services provided through the consumer's individualized plan of employment [ ~~IPE~~], and related to the previously planned vocational goal.

§106.572.Occupational Licenses, Tools, Equipment, and Initial Stocks and Supplies.

(a) - (e) (No change.)

(f) The consumer must take reasonable care of tools, equipment, and supplies provided by the division [~~commission~~ ] and shall be liable for its loss and damage resulting from wrongful act or neglect.

§106.582.Establishing a Small Business as an Employment Outcome.

(a) - (k) (No change.)

(l) After reviewing the proposal and business plan pursuant to the requirements of this section, the Division shall notify the consumer in a format accessible to the consumer if the plan has been approved as an employment outcome and whether the Division shall provide funding and, if so, the extent of such funding as well as any other assistance to be provided to the consumer in establishing the small business. [~~Appeals of decisions not to approve a plan or to fund a plan may be filed in accordance with procedures contained in §101.811, et seq., of this title, pertaining to appeals and hearing procedures.~~]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802942

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

DIVISION 4. ORDER OF SELECTION FOR SERVICES

40 TAC §106.603

The amendment is proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§106.603.Application.

(a) In determining whether to invoke an order of selection, the Assistant Commissioner for the Blind Services shall apply the criteria set out in 29 U.S.C. §709 and in 34 C.F.R. §361.36 as amended and in the State Plan;

(b) The order of selection is applied after eligibility for services is determined.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802943

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

DIVISION 5. CONSUMER PARTICIPATION IN COST OF SERVICES

40 TAC §106.629

No other statute, article, or code is affected by this proposal.

§106.629.Maximum Allowable Amount.

(a) Economic resources in excess of the amount allowed by the division [~~commission~~] must be used to pay for the cost of vocational rehabilitation services. Maximum allowable amounts are contained in an Economic Resources Table available at any division [~~commission~~] office and may be obtained in accordance with §163.3 of this title (relating to Public Access to Forms and Documents).

(b) The maximum allowable amount may fluctuate according to relevant factors, such as established federal and state poverty levels, the funds available to the division [~~commission~~] for services, and the number of persons meeting the definition of family.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802944

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER D. INDEPENDENT LIVING PROGRAM

DIVISION 1. GENERAL INFORMATION

40 TAC §106.855, §106.859

No other statute, article, or code is affected by this proposal.

§106.855.Definitions.

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

(1) - (7) (No change.)

(8) Individual with a [~~significant~~] disability--An individual with a visual impairment whose ability to function independently in the family or community or whose ability to obtain, maintain, or advance in employment is substantially limited and for whom the delivery of independent living services will improve the ability to function, continue functioning, or move toward functioning independently in the family or community or to continue in employment, respectively.

(9) Individual with a significant disability - An individual with a disability as defined in paragraph (8) of this section.

(A) who has a severe physical or mental impairment that seriously limits one or more functional capacities (such as mobility, communication, self-care, self-direction, interpersonal skills) in terms of independent living;

(B) whose independent living program can be expected to require multiple independent living rehabilitation services over an extended period of time; and

(C) who has one or more physical or mental disabilities resulting from amputation, arthritis, autism, blindness, burn injury, cancer, cerebral palsy, cystic fibrosis, deafness, head injury, heart disease, hemiplegia, hemophilia, respiratory or pulmonary dysfunction, mental retardation, mental illness, multiple sclerosis, muscular dystrophy, musculo-skeletal disorders, neurological disorders (including stroke and epilepsy), spinal cord conditions (including paraplegia and quadriplegia), sickle cell anemia, specific learning disability, end-stage renal disease, or another disability or combination of disabilities determined on the basis of an assessment for determining eligibility and independent living needs to cause comparable substantial functional limitation.

(10) [~~(9)~~] Representative--A parent, legal guardian, or other representative appointed by the court to represent the individual or an advocate or other family member designated in writing by the individual to represent the individual.

(11) [~~(10)~~] Transportation--Travel and related expenses that are necessary to enable a consumer to benefit from another independent living service and travel and related expenses for an attendant or aide if the services of that attendant or aide are necessary to enable an individual with a significant disability to benefit from that independent living service.

(12) [~~(11)~~]Visual impairment--A visual acuity, with best correction, of 20/70 or less in the better eye, or a visual field of 30 degrees or less in the better eye, or a combination of both.

§106.859.Service Delivery.

(a) - (b) (No change.)

(1) An eligibility decision will normally be made within 60 days from the time an application for services has been completed unless exceptional and unforeseen circumstances beyond the control of the Division [~~commission~~] precludes a determination.

(2) Once an individual is determined eligible, a plan of services will normally be developed and agreed to within 90 days.

(3) A consumer will normally complete all planned services within 18 months.

(4) Post-closure services will normally not exceed 6 months.

(d) Financial planning information. Quarterly budget information shall be provided to agency field [~~regional~~] directors. Field [~~Regional~~ ] directors will disseminate this information to all caseload carrying staff for financial planning purposes.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802945

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

DIVISION 5. CONSUMER PARTICIPATION IN COST OF SERVICES

40 TAC §106.933

No other statute, article, or code is affected by this proposal.

§106.933.Scope.

All goods and services provided under this chapter are subject to this subchapter except the following:

(1) - (7) (No change.)

(8) Criss Cole Rehabilitation Center training (includes transportation to and from the center); [~~and~~]

(9) services paid for or reimbursed by a source other than the Division; and[.]

(10) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802946

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER F. BLINDNESS EDUCATION, SCREENING, AND TREATMENT PROGRAM

40 TAC §§106.1103, 106.1105, 106.1107

No other statute, article, or code is affected by this proposal.

§106.1103.Definitions.

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

(1) Division--Department of Assistive and Rehabilitative Services, Division for Blind Services.

(2) Resident--An individual who is physically present within the geographic boundaries of Texas; has an intent to remain within the state, either permanently or for an indefinite period; and actually maintains an abode (e.g., house, apartment, etc., but not merely a post office box) within this state.

(3) Program--[~~The~~] Blindness Education, Screening, and Treatment Program.

(4) Vision Screening--A nondiagnostic procedure that uses uniform testing techniques to assess the person's risk of vision loss and eye disease.

§106.1105.Vision Screening Services.

(a) - (b) (No change.)

(1) Persons who have attended and completed vision screening training from the Texas Department of State Health Services [~~Division of Health~~ ] and are currently certified as vision screeners; or

(2) Persons who have been trained by a vision screener currently certified by the Texas Department of State Health Services as a vision screener; or

(3) - (4) (No change.)

(d) (No change.)

(e) When a referral is made for an eye examination to another agency or organization, the referral agency or organization's rules shall apply. A referral by the BEST program is not an endorsement of another agency, organization or eye care professional by the Division [ ~~Department of Assistive and Rehabilitative Services, Division for Blind Services~~].

§106.1107.Treatment Services.

(a) - (h) (No change.)

(i) Payments for treatment services shall be based on the Division's [~~agency's~~ ] adopted rate schedule for eye-related medical services as specified in Human Resources Code, §117.074, [ ~~§101.3611 of this title~~] (also known as the Division's [~~agency's~~] Maximum Affordable Payment Schedule).

(j) - (k) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802947

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER G. BUSINESS ENTERPRISES OF TEXAS

40 TAC §106.1227, §106.1229

No other statute, article, or code is affected by this proposal.

§106.1227.Administrative Action Based on Unsatisfactory Performance.

(a) - (b) (No change.)

(1) Written reprimand. Written reprimand means a formal statement describing violations of applicable law, these rules, the requirements of the BET manual, or any proper and authorized instruction by DARS/DBS personnel.

(2) Probation. Probation means allowing a licensee to continue in BET in an effort to satisfactorily remedy a condition that is not acceptable under these rules. If the condition causing probation is satisfactorily remedied within the time periods specified in the written notice of probation, the probation will be lifted. If the unacceptable condition is not remedied within the time specified, additional and more serious administrative actions may ensue. When a licensee who has been on probation three times in a three-year period qualifies for probation for the fourth time within said three years, the licensee's license may be revoked according to DARS/DBS procedures.

(3) Loss of facility. Loss of facility means the removal of a manager from the manager's current facility for administrative reasons when the manager's actions or inactions are endangering the state's investment in the facility.

(4) Termination. Termination means the cessation of a license issued to a licensee to operate a facility and the removal of the individual from BET.

(5) Emergency Removal of Manager.

(A) A manager may be summarily removed from a facility in an emergency. An emergency shall be deemed to exist when, in the reasonable judgment of the DARS/DBS, the DARS/DBS, in consultation with the ECM chairman, determines that some act or acts or some failure to act of that manager or any person who is an employee, servant or agent of such manager, will, if such removal does not occur:

(i) result in a clear danger to the health, safety or welfare of any person or to the property of any person in, on or around the facility; or

(ii) result in a deterioration of the existing or future relationship with the host, thereby putting the continuation of the facility in jeopardy; or

(iii) present a clear potential of substantial loss or damage to the property of the State of Texas.

(B) In any case in which a manager has been summarily removed from a facility on an emergency basis for any of the reasons set forth in subparagraph (A) of this subsection, the manager shall be entitled to have a hearing as to the issue of a necessity of the summary removal within ten days after the removal has occurred.

(C) The time period for such hearing may be extended only by mutual agreement of the manager and the DARS/DBS, provided that if an official holiday of the State of Texas falls within the time period then the period shall be extended by the time of such holiday; or if the services of an arbitrator cannot be obtained in time to afford the hearing within the time period, then the time period shall be extended by the time necessary to obtain the services of such arbitrator and schedule the hearing.

(D) If the manager desires to have such a hearing, the manager shall notify the DARS/DBS in writing within 48 hours following the removal. Such written notification need only state the name of the manager, the location of the facility, and that the manager desires to have a hearing as to the issue of the need for summary removal. The request may be delivered to [~~the BET director,~~] the Assistant Commissioner, or the BET director, as the Assistant Commissioner's designee [~~any local DARS/DBS BET staff member in the geographical area in which the facility is located~~].

(E) Upon receipt of any such request the BET director shall obtain the services of an arbitrator from the American Arbitration Association ("AAA") or other similar organization to conduct the hearing.

(F) The manager shall be notified of the date, time and place of the hearing. To the extent possible, the hearing shall be conducted in an area near the location of the facility.

(G) The hearing shall be conducted in accordance with the rules of the American Arbitration Association, except that the arbitrator shall be requested to announce orally a decision at the conclusion of the hearing.

(H) If the arbitrator determines that no emergency necessitating the removal of the manager existed, then the manager shall be forthwith restored to the operation of the facility.

(I) No determination made as a result of the hearing shall operate to prejudice the rights of the manager to proceed with a grievance in accordance with the terms of these rules and the Randolph-Sheppard Act.

(d) Administrative action procedures.

(1) From among those administrative actions listed in subsection (c) of this section, [~~The~~] DARS/DBS shall decide which [~~make the decision as to what~~] administrative action to take based upon the seriousness of the violation, the damage to BET, and the licensee's record.

(2) - (4) (No change.)

(e) Prior to termination of a license, the DARS/DBS shall afford the licensee an opportunity for a full evidentiary hearing. The provisions of the Randolph-Sheppard Act, these rules and the Texas Government Code §2001.051 et seq., shall govern the conduct of the hearing.

§106.1229.Procedures for Resolution of Manager's Dissatisfaction.

(a) - (d) (No change.)

(e) Informal procedures to review dissatisfactions. At the request of a licensee, the DARS/DBS shall arrange for and participate in informal meetings in an effort to quickly resolve a matter of dissatisfaction arising from the operation or administration of BET. The informal process is for the purpose of quickly and amicably resolving an issue in controversy. It is not for the purpose of denying or delaying the manager's right to pursue resolution of a matter through a full evidentiary hearing. At any point during the informal process, either party may elect to terminate the following procedures:

(1) - (6) (No change.)

(7) The provisions concerning mediation under Chapter 101, Subchapter E of this title (relating to Appeals and Hearing Procedures) shall not apply to or control the informal resolution procedures in this subchapter.

(f) Full evidentiary hearing. A manager has the right to request a full evidentiary hearing to resolve a dissatisfaction according to the following:

(1) - (8) (No change.)

(9) Selection of the Hearing Officer [The presiding officer at the hearing shall be an impartial and qualified official who has not involvement either with the DARS/DBS action which is at issue or with the administration or operation of BET].

(A) The Hearings Coordinator, DARS Legal Services, shall select, on a random basis, a hearing officer from a pool of persons qualified according to these rules.

(B) The hearing officer shall be an impartial and qualified individual who:

(i) has no involvement either with the DARS/DBS action which is at issue or with the administration or operation of BET;

(ii) is not an employee of a public agency (other than an administrative law judge, hearing examiner, or employee of an institution of higher education);

(iii) has knowledge of the Randolph-Sheppard Act and any applicable state and federal regulations governing the appeal;

(iv) has received training specified by the Department with respect to the performance of official duties; and

(v) has no personal, professional, or financial interest that would be in conflict with the objectivity of the individual.

(C) An individual is not considered to be an employee of a public agency for the purposes of clause (ii) of this subparagraph solely because the individual is paid by the agency to serve as a hearing officer.

(10) Hearings shall be conducted in accordance with the Randolph-Sheppard Act, Texas Government Code §2001.051 et seq., and these rules[~~, and the State Office of Administrative Hearings (SOAH) procedures for hearing contested case hearings contained in 1 TAC §105.1 et seq.~~] to the extent those procedures do not conflict with the Act and its implementing regulations or these rules.

(11) Licensees bringing complaints shall have the burden of proving their cases by the preponderance of evidence. Licensees shall present their evidence first. When a hearing is requested as a result of administrative action by the DARS/DBS against a licensee, the DARS/DBS shall have the burden of proving its case by a preponderance of the evidence and shall present its evidence first.

(12) Transcription of Proceedings. [~~A record shall be made of the evidence and shall be made available to the parties by the DARS/DBS no later than the 30th business day after the close of the hearing.~~]

(A) Unless precluded by law, the hearing shall be recorded electronically by tape recorder or similar device either by the hearing officer or by someone designated by the hearing officer. Such tape recording shall be the official record of the testimony adduced during the hearing. Any party, however, may request, at the party's expense, that the hearing be recorded by a court reporter if the request is made within ten (10) days of the date for the hearing.

(B) In lieu either of a recording of the testimony electronically or of the reporting of testimony by a court reporter, the parties to a hearing may agree upon a statement of the evidence, agree to use taped transcription as a statement of the testimonial evidence, or agree to the summarization of testimony before the hearing officer; provided, however, that proceedings or any part of them must be transcribed on written request of any party.

(C) Unless otherwise provided in this subchapter, the party requesting a transcription of any electronic recording of the proceedings shall bear the cost for the transcribing of any such electronically recorded testimony. Nothing provided for in this section limits the Department to a stenographic record of the proceedings.

(D) The record of the proceedings, including exhibits and any transcription shall be made available to the parties by the DARS/DBS no later than the 30th business day after the close of the hearing.

(13) - (16) (No change.)

(17) The Assistant Commissioner shall review the recommendation of the hearing officer and forward a decision to the manager no later than the 20th business day after receipt of the hearing officer's recommendation. The Assistant Commissioner's decision shall include findings of fact and conclusions of law based on the evidence in the record and separately stated.

(18) Subject to the provisions of Texas Government Code §2001.144 and §2001.146, the Assistant Commissioner's decision shall be the final decision of the Department. Any such decision becomes the final decision of the Department if a timely motion for rehearing or reconsideration is not filed.

(g) Arbitration. A manager appealing the DARS/DBS decision must file a complaint with the Secretary of Education in conformity with the provisions of the implementing regulations at 34 CFR, part 395.13 of the Act, pertaining to arbitration of vendor complaints.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802948

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER I. BLIND CHILDREN'S VOCATIONAL DISCOVERY AND DEVELOPMENT PROGRAM

DIVISION 3. SERVICES

40 TAC §106.1445

No other statute, article, or code is affected by this proposal.

§106.1445.Assessment Services.

(a) (No change.)

(b) Services in this section, with the exception of purchasing copies of existing records, are subject to application of Division 4 of this subchapter (relating to Economic Resources) and Division 5 of this subchapter (relating to Order of Selection for Payment of Services).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802949

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

DIVISION 4. ECONOMIC RESOURCES

40 TAC §106.1475

No other statute, article, or code is affected by this proposal.

§106.1475.Determination.

(a) The parent's economic resources shall be determined before the Division [~~Commission~~] authorizes the purchase of certain services contained in Subchapter C of this chapter (relating to Services).

(b) (No change.)

(c) Parents have the right to not disclose their economic resources. When this information is not disclosed, economic resources shall be determined by the Division [~~Commission~~] to be in excess of the allowable amounts.

(d) To determine the parent's participation in the cost of services that require an expenditure of BCVDD Program funds, the Division [~~Commission~~] shall consider the parent's gross monthly income, the number of family members for which the parent has financial responsibility, and the type of services the child is receiving. These factors shall be applied to percentages of the federal poverty level. The federal poverty level fluctuates and is periodically reviewed by the Division [~~Commission~~]. Updates to agency operating procedures are made in keeping with the federal poverty guidelines and the agency's operating budget. Information about the existing federal poverty level, categories of services, and percentage levels in use by the Division [~~Commission~~ ] is available by calling any Division [~~Commission~~] office and requesting the information.

(e) Parents with gross monthly incomes at or below the percentage of federal poverty level in use by the Division [~~Commission~~ ] shall not be required to participate in the cost of services that require an expenditure of BCVDD Program funds. Parents with gross monthly incomes above the applied federal poverty level shall be required to participate. In making this decision, the Division [~~Commission~~ ] shall consider extenuating circumstances which may prohibit the parent's ability to participate, such as medical costs and debts resulting from a permanent disability or chronic illness of the child or family member.

(f) (No change.)

(g) Gross monthly income at application for services shall be based on the family's current month's income or the average gross income for the previous three months, whichever is less, and shall be updated periodically as deemed necessary by the Division [~~Commission~~].

(h) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802950

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

DIVISION 5. ORDER OF SELECTION FOR PAYMENT OF SERVICES

40 TAC §106.1487, §106.1489

No other statute, article, or code is affected by this proposal.

§106.1487.Application of Order of Selection.

(a) In determining whether to invoke an order of selection, the Assistant Commissioner for Blind Services shall apply the same criteria as that used in §106.603 of this title (relating to Application). [~~The order of selection is applied after eligibility for services is determined.~~]

(b) The order of selection is applied after eligibility for services is determined. [~~A service that can be paid from resources other than the Division's may be provided to a child regardless of the order of selection.~~]

(c) A service that can be paid from resources other than the Division's may be provided to a child regardless of the order of selection.

§106.1489.Order of Selection Expenditure Categories.

Order of Selection expenditure categories, from most restrictive to least restrictive, are:

(1) - (2) (No change.)

(3) Category C--Expenditure of case service funds authorized for any planned, necessary BCVDD Program services according to the following priorities:

(A) - (C) (No change.)

(D) Priority 4--Children who have a nonsevere visual loss and a degenerative eye condition that will result in a severe visual loss. [ ~~Children who are certified as visually impaired by a local education agency;~~]

(E) Priority 5--Children who are certified as visually impaired by a local education agency. [~~Children who have a nonsevere visual loss and a degenerative eye condition that will result in further visual loss;~~]

(F) - (G) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802951

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER K. MEMORANDA OF UNDERSTANDING

40 TAC §106.1605

No other statute, article, or code is affected by this proposal.

§106.1605.Transition Planning for Students Receiving Special Education.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802952

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

40 TAC §106.1607

No other statute, article, or code is affected by this proposal.

§106.1607.Continuity of Care System for Offenders with Physical Disabilities.

(a) The Texas Department of Assistive and Rehabilitative Services (department) adopts by reference a memorandum of understanding (MOU) between the Texas Department of Criminal Justice, Department of Aging and Disability Services, and Department of State Health Services. The MOU contains the agreement required by Texas Health and Safety Code §614.014 and §614.015 to establish the respective responsibilities of these agencies to institute a continuity of care and service program for offenders in the criminal justice system who are physically disabled, the elderly, terminally or significantly ill, and the mentally retarded.

(b) The MOU is adopted by rule in 37 TAC §159.19 (relating to Continuity of Care and Service Program for Offenders with Physical Disabilities, the Elderly, the Significantly or Terminally Ill and the Mentally Retarded.

(c) The effective date of the MOU, with respect to the department is the same as the effective date of this section. [ The Commission adopts by reference 37 TAC §159.5, which sets forth the terms of a memorandum of understanding between the Texas Department of Criminal Justice, the Texas Commission for the Blind, the Texas Commission for the Deaf and Hearing Impaired, the Texas Department of Human Services, the Texas Rehabilitation Commission, and the Texas Department of Health. The memorandum provides for a continuity of care system for offenders with physical disabilities.]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802953

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER L. ADVISORY COMMITTEES AND COUNCILS

40 TAC §106.1701, §106.1705

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Department of Assistive and Rehabilitative Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§106.1701.Establishment of Advisory Committees and Councils.

§106.1705.Committees and Councils Established by the Board.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802954

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

40 TAC §106.1703

No other statute, article, or code is affected by this proposal.

§106.1703.Mandated Advisory Committees.

~~[(a) Consumer Advisory Committee.]~~

~~[(1) Legal basis. The Consumer Advisory Committee (CAC) is created pursuant to the Human Resources Code, §91.018.]~~

[(2) Purpose. The CAC is mandated by the Human Resources Code to provide individuals and groups interested in services to persons with visual impairments with a means of expressing their views about the delivery of rehabilitation services.]

~~[(3) Reporting requirements. The CAC serves in a consultative role to the agency and makes written recommendations to the executive director.]~~

[(4) Tasks. The CAC advises and consults with the executive director regarding program development and implementation of policies and programs and brings local issues pertaining to the programs to the attention of the agency.]

[(5) Membership. The Consumer Advisory Committee shall be comprised of the chairperson of each Regional Advisory Committee established pursuant to §172.3 of this title (relating to Committees and Councils Established by the Board) and additional persons appointed by the executive director to ensure representation of Texas organizations of and for the blind on the committee and to ensure diversity of race, gender, age, and other factors as determined necessary by the executive director to adequately reflect the agency's target population. Members shall serve two-year staggered terms.]

~~[(6) Presiding member. The committee selects from among its members a presiding member.]~~

~~[(7) Duration. The statute that requires this advisory committee contains no end date.]~~

~~[(b)] Elected Committee of Managers.~~

(1) Legal basis. The Elected Committee of Managers (ECM) is created pursuant to 20 USCA §107b(1) of Chapter 6A of Title 20, known as the Randolph-Sheppard Act.

(2) Purpose. The purpose of the ECM is to comply with the Randolph-Sheppard Act, which requires the agency, as the state licensing agency in Texas under the Act, to provide for the biennial election of a State Committee of Blind Vendors which, to the extent possible, is fully representative of all blind vendors in the state.

(3) Tasks. The ECM:

(A) actively participates with the agency in major administrative decisions and policy and program development decisions affecting the overall administration of the state's vending facility program;

(B) receives and transmits to the agency grievances at the request of blind vendors and serves as advocates for such vendors in connection with such grievances;

(C) actively participates with the agency in the development and administration of a state system for the transfer and promotion of blind vendors;

(D) actively participates with the agency in the development of training and retraining programs for blind vendors; and

(E) sponsors, with the assistance of the agency, meetings and instructional conferences for blind vendors within the state.

(4) Membership. The ECM is composed of elected representatives who are representative of all managers in the program based on geography and vending facility type and size.

(5) Presiding member. The ECM selects from its membership a presiding member.

(6) Duration. This advisory committee will continue as long as the federal law that requires it remains in effect. Failure to establish the ECM would suspend the agency's designation, under federal regulations, as the state licensing agency.

~~[(c) Statewide Independent Living Council.]~~

~~[(1) Legal basis. The Statewide Independent Living Council (SILC) is created pursuant to the Rehabilitation Act of 1973, §705, as amended, 29 United States Code §796d.]~~

~~[(2) Purpose. The purpose of the SILC is to comply with federal requirements.]~~

~~[(3) Reporting requirements. The SILC:]~~

~~[(A) submits to the federal government such periodic reports as the federal government requests; and]~~

~~[(B) jointly develops and submits, in conjunction with the Texas Commission for the Blind, the state plan for independent living services as required by federal law.]~~

~~[(4) Tasks. The SILC:]~~

~~[(A) develops and submits the reports enumerated in subsection (c) of this section;]~~

~~[(B) keeps such records as the federal government finds necessary to verify such reports;]~~

~~[(C) monitors, reviews, and evaluates the implementation of the independent living state plan;]~~

~~[(D) coordinates activities with other councils that address the needs of specific disability populations and issues under other federal law; and]~~

~~[(E) ensures that all regularly scheduled meetings of the council are open to the public and sufficient advance notice is provided.]~~

[(5) Membership. Members are appointed by the governor after soliciting recommendations from representatives of organizations representing a broad range of individuals with disabilities and organizations interested in individuals with disabilities. Employees of the Texas Rehabilitation Commission and the Texas Commission for the Blind are not eligible for appointment.]

~~[(6) Presiding member. The committee selects from its membership a presiding member.]~~

[(7) Duration. This advisory committee will continue as long as the federal law that requires it remains in effect. Failure to establish the SILC would prevent the agency from receiving federal financial assistance.]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802955

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER M. DONATIONS

40 TAC §106.1815

No other statute, article, or code is affected by this proposal.

§106.1815.Standards of Conduct between Employees and Officers and Private Donors.

(a) - (c) (No change.)

(d) An officer or employee shall not make personal investments in association with a private donor which could reasonably be expected to create a substantial conflict between the officer's or employee's private interest and the interest of the division [~~commission~~].

(e) An officer or employee shall not solicit, accept, or agree to accept any benefit for having exercised his/her official powers on behalf of a private donor or performed his official duties in favor of private donor.

(f) An officer or employee who has policy direction over the division [~~commission~~ ] and who serves as an officer or director of a private donor shall not vote on or otherwise participate in any measure, proposal, or decision pending before the private donor if the division [ ~~commission~~] might reasonably be expected to have an interest in such measure, proposal, or decision.

(g) An officer or employee shall not authorize a private donor to use property of the division [~~commission~~] unless the property is used in accordance with a contract between the division [~~commission~~] and the private donor, or the division [~~commission~~ ] is otherwise compensated for the use of the property.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802956

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

CHAPTER 107. DIVISION FOR REHABILITATION SERVICES

The Texas Health and Human Services Commission ("HHSC"), on behalf of the Texas Department of Assistive and Rehabilitative Services ("DARS"), proposes new rules, amendments, and repeals to the DARS rules in Title 40, Part 2, Chapter 107, Division for Rehabilitation Services, Subchapter B, Vocational Rehabilitation Services Program; Subchapter F, Independent Living Services Program; Subchapter L, Comprehensive Rehabilitation Services; and Subchapter N, Memoranda of Understanding with Other State Agencies.

Specifically, DARS proposes to amend Subchapter B, Division 1, Provision of Vocational Rehabilitation Services, §§107.101, 107.107, 107.111, 107.113, 107.115, 107.121, 107.123, 107.125, 107.129, 107.131, 107.133, 107.135, 107.137, and 107.139; the repeal of §107.103; and an amendment to Division 3, Comparable Benefits, §107.173; the amendment of Division 4, Eligibility and Ineligibility §§107.191, 107.195, and 107.197 and new §107.199; and the amendment of Division 5, Methods of Administration of Vocational Rehabilitation §§107.215, 107.219, 107.221, 107.223, and 107.225; the amendment of Subchapter F, Independent Living Services Program, §§107.801, 107.803, 107.805, 107.807, 107.809, and new §107.806, the amendment of Subchapter L, Comprehensive Rehabilitation Services, §107.1201 and §107.1207 an amendment to Subchapter N, Memoranda of Understanding With Other State Agencies §107.1601 and the repeal of §§107.1607, 107.1609, and 107.1613.

These new rules, amendments, and repeals are being proposed pursuant to DARS' four-year rule review of Chapter 107, as required by Texas Government Code §2001.039. Notice of the proposed rule review of Chapter 107 was published in the November 30, 2007, issue of the Texas Register (32 TexReg 8863). As a result of the review, DARS determined that the reasons for initially adopting these rules continue to exist. However, the review identified areas where new rules, amendments, and repeals are needed to remove rules that apply only to DARS's legacy agency, to delete outdated memoranda of understanding, for greater clarity and consistency with state and federal statutes and regulations, and for greater consistency with the vocational rehabilitation rules of the DARS Division for Blind Services.

The following statutes and regulations authorize the proposed new rule, the amendments, and the repeals: the Rehabilitation Act of 1973, as amended, 29 U.S.C. §701 et seq.; Texas Human Resources Code, Chapters 111 and 117.

Bill Wheeler, DARS Chief Financial Officer, estimates that for each year of the first five years that the proposal will be in effect, there will be no foreseeable fiscal implications for state or local government costs or revenues as a result of enforcing or administering the proposal.

Mr. Wheeler has determined that for each year of the first five years the proposal will be in effect, the public benefit anticipated as a result of enforcing the proposal will be assurances to the public that the necessary rules are in place to increase efficiencies in the agency's delivery of vocational rehabilitation services, independent living services, and comprehensive rehabilitation services. He has also determined that there will be no probable economic cost to persons who are required to comply with the proposal.

Further in accordance with Texas Government Code §2001.022, Mr. Wheeler has determined that the proposal will not affect a local economy, and, therefore, no local employment impact statement is required. Finally, Mr. Wheeler has determined that the proposal will have no adverse economic effect on small businesses or micro-businesses.

SUBCHAPTER B. VOCATIONAL REHABILITATION SERVICES PROGRAM

DIVISION 1. PROVISION OF VOCATIONAL REHABILITATION SERVICES

40 TAC §§107.101, 107.107, 107.111, 107.113, 107.115, 107.121, 107.123, 107.125, 107.129, 107.131, 107.133, 107.135, 107.137, 107.139

No other statute, article, or code is affected by this proposal.

§107.101.Basic Criteria.

(a) The Vocational Rehabilitation Services Program is a joint state-federal funded program. The Division cooperates with the federal government in carrying out the rehabilitation of individuals with disabilities under state and federal law and to this end adopts such methods of administration as are found by the federal government to be necessary and not contrary to existing state laws for the proper and efficient operation of such rehabilitation program. The Division complies with such requirements as may be necessary to obtain federal funds in the maximum amount and most advantageous proportion authorized.

(b) The State Plan for Vocational Rehabilitation Services is a binding contract between the federal government and the Department, and all rules in this subchapter must be interpreted in a manner consistent with state and federal law and with the State Plan. The State Plan is available on the Department's Internet site.

§107.107.Preliminary and Comprehensive Assessment.

(a) (No change.)

(b) Comprehensive assessment. If additional information is needed to determine the appropriate employment outcome and services required to achieve it, the [~~The~~ ] Division, as appropriate in each case, shall conduct a comprehensive assessment of the unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and needs, including the need for supported employment services, of an eligible individual, in the most integrated setting possible, consistent with the informed choice of the individual. The comprehensive assessment is limited to information that is necessary to identify the rehabilitation needs of the individual and develop the IPE and may, to the extent needed, include:

(1) an analysis of pertinent medical, psychological, vocational, educational, and other related factors that [~~which~~ ] bear on the individual's impediment to employment and rehabilitation needs. Additional examinations are authorized after services are initiated when conditions arise that jeopardize the individual's plan for employment;

(2) - (4) (No change.)

§107.111.Physical Restoration Services.

(a) The Division provides physical restoration services that [~~which~~ ] are necessary to correct or substantially modify an individual's physical condition within a reasonable period of time. The physical conditions for which such services are rendered must be stable or slowly progressive.

(b) (No change.)

§107.113.Mental Restoration Services.

(a) The Division provides mental restoration services for mental conditions that [~~which~~] are stable or slowly progressive.

(b) (No change.)

(c) The Division provides psychotherapy as a limited service only to support the completion or achievement of the employment goal [~~vocational objective~~].

(d) The Division provides mental restoration services utilizing only physicians licensed by the state and skilled in the diagnosis and treatment of mental or emotional disorders, psychologists licensed or certified in accordance with state law, Licensed Clinical [~~Master~~] Social Workers[ ~~-advanced clinical practitioners~~ ] who are licensed by the Texas State Board of Social Work Examiners or Licensed Professional Counselors who are licensed by the Texas State Board of Examiners of Professional Counselors.

§107.115.Vocational and Other Training Services.

(a) - (d) (No change.)

(e) The Division will not pay tuition and fees to a business, technical, or vocational school in excess of the published fees. [ Textbooks supplied to consumers of the Division become the property of the consumer provided the consumer finishes the prescribed training and enters a field of employment compatible with the employment goal. If the consumer drops out of training or enters employment not related to the vocational objective, the textbooks remain the property of the Division.]

§107.121.Interpreter Services for the Deaf and Hard of Hearing .

(a) The Division may provide interpreter services for consumers who are deaf or hard of hearing when such services will assist in the attainment of the rehabilitation objective.

(b) (No change.)

§107.123.Job Placement.

(a) The principal objective of vocational rehabilitation services is a competitive employment outcome for each consumer that [~~which~~ ] is consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.

(b) (No change.)

§107.125.Postemployment Services.

(a) (No change.)

(b) Postemployment services are those services that [~~which~~ ] are necessary for the individual to maintain, regain or advance in an employment outcome that [~~which~~] is consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.

§107.129.Extended Evaluation.

(a) - (c) (No change.)

(d) Where an individual is determined ineligible for vocational rehabilitation services after extended evaluation, the Division conducts a periodic review at least annually of the ineligibility decision in which the individual is afforded a clear opportunity for full consultation in the reconsideration of such decision. A periodic review is not required when the individual has refused services, has refused a periodic review, is no longer present in the state, the individual's whereabouts are unknown, or the medical condition is rapidly progressive or terminal.

§107.131.Individualized Plan for Employment.

(a) - (b) (No change.)

(c) The consumer may develop all or part of the IPE with or without assistance from a DRS Counselor, a qualified vocational rehabilitation counselor not employed by DRS, or another resource outside of DRS. DRS will not pay for non-DRSassistance with IPE development. The IPE is not final until approved by the DRS counselor. A copy of such plan [~~program~~] and any amendments thereto are provided to the consumer or, as appropriate, the consumer's parent, guardian, or other representative.

(d) (No change.)

(e) The counselor shall advise the consumer of the consumer's rights and the means by which the consumer may express and seek remedy for dissatisfaction with the plan [~~program~~ ], including the opportunity for an administrative review of Division action and a fair hearing in accordance with the Administrative Procedure [~~and Texas Register~~] Act, Texas Government Code Chapter 2001, and rules in Chapter 101 of this title (relating to Administrative Rules and Procedures) [~~§13 and §14~~ ].

(f) The counselor reviews the individualized plan for employment as often as necessary, but at least on an annual basis, at which time each consumer, or as appropriate, the consumer's parent, guardian, or other representative, is afforded an opportunity to review such plan [~~program~~] and, if necessary, jointly redevelop its terms.

(g) The individualized plan for employment is a joint commitment that [~~which~~] must be signed by both the counselor and the individual.

(h) The Division may provide only those goods and services that [~~which~~ ] can reasonably be expected to benefit an individual with a disability in terms of employment.

§107.133.Cooperative Programs Utilizing Third-Party Funds.

When the Division enters into a third-party cooperative arrangement for providing or administering vocational rehabilitation services with another state agency or a local public agency that is furnishing part or all of the non-federal share, then to the extent that the services will be counted as non-federal share [~~the state plan will assure that~~]:

(1) the services provided by the cooperating agency must [~~are~~] not be the customary or typical services provided by that agency but [~~are~~] new services that have a vocational rehabilitation focus or existing services that have been modified, adapted, expanded or reconfigured to have a vocational rehabilitation focus;

(2) the services provided by the cooperating agency must be [~~are only~~] available only to applicants for, or recipients of, services from the Division;

(3) program expenditures and staff providing services under the cooperative arrangement must be [~~are~~] under the administrative supervision of the Division; and

(4) (No change.)

§107.135.Participation in Political Activity.

Employees of the Division engaged in day-to-day administration and operation of the vocational rehabilitation program will not engage in political activity prohibited by the Hatch Act, 5 United States Code, Chapter 15 [~~1501~~], or state law.

§107.137.Consultation Regarding the Administration of the State Plan.

(a) The state plan must assure that, in connection with matters of general policy development and implementation arising in the administration of the state plan, the Division seeks and takes into account the views of:

(1) - (3) (No change.)

(4) the Client Assistance Program (CAP) [~~CAP~~ ] director; and

(5) the Rehabilitation Council of Texas [~~State Rehabilitation Council, if the state has a council~~].

(b) The state plan must specifically describe the manner in which the Division [~~state unit~~] will take into account the views regarding state policy and administration of the state plan that are expressed in the consumer satisfaction surveys conducted by the [~~State~~] Rehabilitation Council of Texas under 34 CFR §361.17(h) (4) [~~(3)~~] or by the [~~state agency if it is in an independent~~] Division [~~in accordance with the requirements of 34 CFR §361.16(a)(1)~~ ].

§107.139.Definitions.

Words and terms are used in this chapter as defined in the Rehabilitation Act of 1973, as amended, and implemented by 34 Code of Federal Regulations and the Human Resources Code, Title 7, unless the context clearly indicates another meaning. Words and terms defined in such federal and state laws and regulations are applicable to this chapter. In addition, the following definitions apply:

(1) Applicant--An individual who applies to the Division for Rehabilitation [ ~~Department of Assistive and Rehabilitative~~ ] Services for vocational rehabilitation services, comprehensive rehabilitation services, or independent living services.

(2) Consumer--An individual with a disability who is determined eligible by the Division for Rehabilitation [ ~~Department of Assistive and Rehabilitative~~ ] Services for vocational rehabilitation services, comprehensive rehabilitation services, independent living services, or other Division [~~department~~] services.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802957

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

40 TAC §107.103

The repeal is proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provide the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§107.103.Organization for Vocational Rehabilitation Services.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802958

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

DIVISION 3. COMPARABLE BENEFITS

40 TAC §107.173

No other statute, article, or code is affected by this proposal.

§107.173.Availability of Comparable Services and Benefits.

The Division determines whether comparable services or benefits are available under any other program or law to the consumer to meet, in whole or in part, the cost of any VR services. [~~The Division shall use all available comparable services or benefits to meet, in whole or in part, the cost of vocational rehabilitation services.~~] The Division will not make this determination in cases where:

(1) - (3) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802959

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

DIVISION 4. ELIGIBILITY AND INELIGIBILITY

40 TAC §§107.191, 107.195, 107.197, 107.199

The amendments and new section are proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provide the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§107.191.Basic Requirements for Eligibility.

(a) (No change.)

(b) The Division must:

(1) (No change.)

(2) determine that the impairment constitutes or results in a substantial impediment to employment for the applicant;

(3) (No change.)

(4) presume that the applicant is capable of achieving an employment outcome, unless there is a demonstration by clear and convincing evidence [~~in extended evaluation~~] that the applicant is incapable of achieving an employment outcome due to the severity of the individual's disability.

(c) Social Security disability recipients and beneficiaries are presumed eligible for VR services , unless there is a demonstration by clear and convincing evidence that the applicant is incapable of achieving an employment outcome due to the severity of the individual's disability.

§107.195.Ineligibility.

An applicant for rehabilitation services may be determined ineligible when: [~~An individual becomes ineligible for vocational rehabilitation services when the provision of such programmed services would be ineffective in achieving their purpose of employability.~~ ]

(1) the individual does not have a physical or mental impairment;

(2) the impairment does not constitute or result in a substantial impediment to employment;

(3) VR services are not required for the individual to prepare for, enter, engage in, or retain gainful employment consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice; or

(4) it is demonstrated, by clear and convincing evidence in extended evaluation, that the individual is not capable of achieving an employment outcome due to the severity of the individual's disability.

§107.197.Determination of Ineligibility.

When an applicant is determined ineligible for vocational rehabilitation services or an individual receiving services under an IPE is no longer eligible for services, the Division shall:

(1) - (2) (No change.)

(3) provide the individual with a description of services available from a Client Assistance Program established under 34 CFR Part 370 and information on how to contact that program; [~~and~~]

(4) refer the individual to:

(A) other programs that are part of the One-Stop service delivery system under the Workforce Investment Act that can address the individual's training or employment-related needs; or

(B) local extended employment providers if the ineligibility determination is based on a finding that the individual is incapable of achieving an employment outcome; and

(5) [~~(4)~~] review within 12 months and annually thereafter, if requested by the individual or, if appropriate, by the individual's representative any ineligibility determination that is based on a finding that the individual is incapable of achieving an employment outcome. This review need not be conducted in situations where the individual has refused it, the individual is no longer present in the state, the individual's whereabouts are unknown, or the individual's medical condition is rapidly progressive.

§107.199.Case Closure.

(a) The Division shall close a case when the person's rehabilitation plan has been completed and the person has been determined to have achieved and maintained continuous employment commensurate with the established employment goal for a minimum of 90 days or sooner if:

(1) the Division is unable to locate or contact the person;

(2) the person's disability is so severely limiting that there is little chance the person can be vocationally rehabilitated or the person's medical condition is expected to progress to such a severely limiting degree in a fairly short period of time that rehabilitation services will be of little or no help;

(3) the person has refused services or further services;

(4) the person has died;

(5) the person has been institutionalized;

(6) the person has been determined to have no disabling condition;

(7) the person has refused to cooperate with the Division;

(8) transportation is not feasible or available;

(9) the person has been determined to have no impediment to employment;

(10) Extended Services for supported employment are not available;

(11) the person has chosen Extended Employment (e.g., sheltered workshop); or

(12) the person's case has been transferred to another agency.

(b) Case closure is made with the full knowledge of the person when the person is available.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802960

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

DIVISION 5. METHODS OF ADMINISTRATION OF VOCATIONAL REHABILITATION

40 TAC §§107.215, 107.219, 107.221, 107.223, 107.225

No other statute, article, or code is affected by this proposal.

§107.215.Statewide Studies and Program Evaluation.

(a) (No change.)

(b) Such studies are directed toward:

(1) assessing [of] the rehabilitation needs of individuals with significant disabilities who reside in the state;

(2) - (5) (No change.)

§107.219.Order of Selection.

(a) In determining whether to invoke an order of selection, the Assistant Commissioner for Rehabilitation Services shall apply the criteria set out in 29 U.S.C. §709 and in 34 C.F.R. §361.36 as amended and in the State Plan. [~~An order of selection established for allocation of vocational rehabilitation services when such services cannot be provided to all who apply and are eligible is as follows:~~]

[(1) First priority: Eligible individuals with the most significant disabilities. Such individuals are those with significant disabilities who have serious limitations in three or more functional capacities (mobility, self-care, self-direction, work skills, work tolerance, interpersonal skills, and communication) in terms of an employment outcome.]

~~[(2) Secondary priority: Eligible individuals with significant disabilities who have serious limitations in two functional capacities in terms of an employment outcome.]~~

~~[(3) Third priority: Eligible individuals with significant disabilities who have serious limitations in one functional capacity in terms of an employment outcome.]~~

~~[(4) Fourth priority: All other eligible individuals.]~~

(b) The order of selection, if invoked, is applied after eligibility for services is determined.

§107.221.Periodic Reevaluation of Extended Employment.

[~~(a)~~] In accordance with 34 C.F.R. 361.55, the [~~The~~] Division reviews and reevaluates annually, for two years after the individual's case is closed, and thereafter if requested , the status of each individual who has chosen employment in a non-integrated setting. [This review or reevaluation must include input from the individual or in an appropriate case, the individual's representative to determine the interests, priorities, and needs of the individual for competitive employment in an integrated setting in the labor market.]

[(b) The Division makes maximum effort, including the identification of vocational rehabilitation services, reasonable accommodations, and other support services, to enable the eligible individual to benefit from training in, or to be placed in employment in, an integrated setting.]

~~[(c) The Division provides services designed to promote movement from extended employment to integrated employment, including supported employment, independent living, and community participation.]~~

§107.223.Individuals Determined to have Achieved an Employment Outcome [ ~~be Rehabilitated~~ ].

(a) The Division determines a consumer to have achieved an employment outcome [~~be rehabilitated~~] when the following requirements are met:

(1) (No change.)

(2) the individual has achieved the employment outcome that is described in the individual's IPE and that is consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice; and

(3) - (5) (No change.)

(b) After a consumer has been determined to have achieved an employment outcome [~~be rehabilitated~~], the Division may provide postemployment services as required to maintain , [or] regain or advance in [ ~~suitable~~] employment.

§107.225.Training and Supervision of Counselors.

The Assistant Commissioner for Rehabilitation Services is accountable for the monitoring and oversight of Vocational Rehabilitation Counselor performance and decision making in the following areas listed in paragraphs (1) - (5) of this section:

(1) - (3) (No change.)

(4) the measurement of consumer progress toward the employment goal [~~vocational objective~~ ], including the documented, periodic evaluation of the consumer's rehabilitation and participation; and

(5) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802961

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER F. INDEPENDENT LIVING SERVICES PROGRAM

40 TAC §§107.801, 107.803, 107.805 - 107.807, 107.809, 107.811

No other statute, article, or code is affected by this proposal.

§107.801.Purpose.

(a) The purpose of the Independent Living Services (ILS) Program is to provide rehabilitation services to individuals with significant disabilities whose ability to function independently in the home, family or community is substantially limited and for whom the delivery of independent living services will substantially improve the ability to function, continue functioning, or move towards functioning independently in the home, family or community [~~when they are necessary to achieve a greater level of self-care and independent living~~].

(b) The Independent Living Services Program is a joint state-federal program. All federal laws, [~~and~~] regulations and conditions required by the acceptance of these funds by the state are applicable to these rules.

§107.803.[~~Basic Requirements for~~] Eligibility.

(a) An individual with a significant disability is eligible for Independent Living Services. [~~meets the basic requirements for eligibility if:~~]

~~[(1) the individual has a significant physical, mental, cognitive or sensory disability that interferes with the ability to remain or become independent in the family, home or community; and]~~

[(2) independent living services are needed to improve the individual's ability to be independent, maintain independence, or move towards independence in the family, home or community by decreasing the amount of assistance and/or supervision needed to perform daily activities.]

(b) An individual with a significant disability is a person:

(1) who has a severe physical, mental, cognitive, or sensory impairment that substantially limits the individual's ability to function independently in the home, family, or community; and

(2) for whom the delivery of IL services will improve the ability to function, continue functioning, or move toward functioning independently in the home, family, or community.

§107.805.Review of Ineligibility Determination.

(a) If an applicant for IL services has been found ineligible, the Independent Living Services (ILS) counselor will review the applicant's ineligibility at least once within 12 months after the ineligibility determination has been made and whenever the ILS counselor determines that the applicant's status has materially changed. [An individual becomes ineligible for independent living services when there is no presence of a significant disability and/or independent living services are not required to be independent, maintain independence or move towards independence in the home, family or community.]

(b) The review need not be conducted in situations where the applicant has refused the review, the applicant is no longer present in the state, or the applicant's whereabouts are unknown.

§107.806.Independent Living Plan.

Unless the eligible individual signs a waiver stating that it is unnecessary, an Independent Living plan will be developed indicating the goals or objectives established, the services to be provided, and the anticipated duration of the service program. The IL plan must be developed jointly and signed by the Independent Living Services (ILS) counselor and the individual or the individual's representative. The IL plan must be reviewed as often as necessary but at least on an annual basis to determine whether services should be continued, modified, or discontinued.

§107.807.Services Provided.

Independent [~~The provisions of independent~~] living services may include:

(1) - (16) (No change.)

(17) interpreter services; [~~and~~]

(18) modification of vehicles and residences; and [.]

(19) other services that are not listed in paragraphs (1) - (18) of this section but that may be necessary to improve the ability of the consumer to function, continue functioning, or move toward functioning independently.

§107.809.Availability of Services.

(a) As case service funds become available, each Independent Living Services (ILS) counselor provides services to consumers whose plan or Waiver has been signed and who are ready for services, in order of their initial contact date. [ Independent living services are provided on a first come first served basis. When the Commissioner deems necessary, expenditures of IL funds may be authorized for persons outside the stated service areas.]

(b) When case service funds are not available, each ILS counselor maintains an Interest and Waiting List of consumers for whom services have not yet been purchased.

(1) The Interest portion of this list consists of:

(A) consumers requesting IL services for whom a plan or waiver has not yet been signed; and

(B) consumers for whom a plan or waiver has been signed, but who are not ready to receive purchased services.

(2) The Waiting portion of this list consists of consumers for whom a plan or waiver has been signed and who are ready to receive purchased services. When funds become available, these consumers are served in order of their initial contact date.

(c) When necessary to avoid inequities, the Assistant Commissioner may transfer case service funds between service areas or counselors and may authorize DARS staff to serve consumers on a waiting list with services from a different counselor.

§107.811.Consumer Participation.

(a) (No change.)

(b) All services are subject to required consumer participation except for the following:

(1) assessment for determining eligibility;

(2) assessment for determining independent living needs, including associated maintenance and transportation;

(3) counseling, guidance, and referral provided by DARS staff;

>(4) personal assistance services; and

(5) any auxiliary aid or service (e.g., interpreter services) that a consumer with a disability requires in order to achieve IL goals.

~~[(1) services paid for, or reimbursed by, a source other than the Division;]~~

~~[(2) counseling, guidance, and referral provided by DARS staff;]~~

~~[(3) assessment services, to determine eligibility and determining independent living needs, including any associated maintenance and transportation;]~~

~~[(4) interpreter services;]~~

~~[(5) reader services; and/or]~~

~~[(6) translator services.]~~

~~[(c) Reference: §107.151 of this title (relating to Basic Living Requirements (BLR)).]~~

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802962

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER L. COMPREHENSIVE REHABILITATION SERVICES

40 TAC §107.1201, §107.1207

No other statute, article, or code is affected by this proposal.

§107.1201.Purpose.

(a) (No change.)

(b) Funding for this program is provided by the comprehensive rehabilitation fund, as authorized by the 72nd Legislature of the State of Texas and by general revenue.

§107.1207.Services Provided.

(a) Inpatient hospitalization at a comprehensive rehabilitation facility. Services may include:

(1) - (2) (No change.)

(3) physical therapy, occupational therapy , and speech-language therapy [~~pathology~~];

(4) - (6) (No change.)

(7) orthotic [~~orthotics~~] and prosthetic devices [~~prosthetics~~];

(8) - (16) (No change.)

(b) Outpatient services. Services may include:

(1) - (2) (No change.)

(3) speech-language therapy [~~pathology~~];

(4) - (11) (No change.)

(c) Post-acute services (residential or nonresidential--limited to individuals with traumatic brain injury). Services may include:

(1) - (4) (No change.)

(5) physical therapy, occupational therapy, and speech-language therapy [~~traditional therapies~~];

(6) - (8) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802963

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER N. MEMORANDA OF UNDERSTANDING WITH OTHER STATE AGENCIES

40 TAC §107.1601

No other statute, article, or code is affected by this proposal.

§107.1601.Memorandum of Understanding Regarding Continuity of Care for Physically Disabled Inmates.

(a) The Texas Department of Assistive and Rehabilitative Services (department) adopts by reference a memorandum of understanding (MOU) between the Texas Department of Criminal Justice, Department of Aging and Disability Services, and Department of State Health Services. The MOU contains the agreement required by Texas Health and Safety Code §§614.014 - 614.015 to establish the respective responsibilities of these agencies to institute a continuity of care and service program for offenders in the criminal justice system who are physically disabled, terminally ill, or significantly ill.

[(a) Basis. This memorandum of understanding is entered into between the Texas Department of Corrections (TDC), Texas Rehabilitation Commission (TRC), Texas Commission for the Blind (TCB), Texas Commission for the Deaf (TCD), Texas Department of Human Services (TDHS), and Texas Board of Pardons and Paroles (TBP&P) to comply with Senate Bill 245, 70th Legislature, 1987.]

[(b) Understanding. The TDC, TRC, TCB, TDHS, and TBP&P understand and agree that the establishment of each agency's respective responsibilities to the continuity of care for releasing physically handicapped inmates is imperative to their well being. It is further understood that the TDC remains the primary responsible party, under this memorandum of understanding, up to and until the release of the identified inmate for purposes of this memorandum of understanding. Other services may be provided by agreement of the respective agencies by way of interagency cooperation contracts. Other agencies, as cited, assume only those responsibilities given that agency under its enabling legislation, and only upon the release of the identified inmate.]

[(c) Methods. This memorandum of understanding will establish methods for accomplishing four tasks, basic to the continuity of care of physically handicapped inmates, as set forth in Senate Bill 245, 70th Legislature, 1987.]

[(1) The TDC will identify all physically handicapped inmates as defined below through a comprehensive review of health related conditions upon admission to the TDC and periodically during their confinement in accordance with the Comprehensive Health Care Plan, Health Services Policies and Procedures Numbers 3-8, 3-10, 3-11, 3-36, 3-44, and 3-45, and the National Commission of Correctional Health Care Standards page 30 and page 32. The definition of physically handicapped shall be that as defined in the Physically Handicapped Offender Plan, pursuant to Ruiz v. Lynaugh, and the Health Services Policies and Procedures, Numbers 3-44 and 3-45.]

[(2) The TDC will also identify inmates in need of chronic and convalescent care whose physical conditions impair their abilities to perform daily living activities. The identification will occur through a comprehensive review of health related conditions upon admission to TDC and periodically during their confinement in accordance with the Comprehensive Health Care Plan, Health Services Policies and Procedures Numbers 3-8, 3-10, 3-11, 3-36, 3-44, 3-45, and the National Commission of Correctional Health Care Standards pages 30 and 32.]

[(3) The TDC will review admission records, together with the periodic health reviews, and all medical treatment records prior to release. Where possible, this will be accomplished no sooner than 60 days prior to, but no later than 30 days prior to, the designated release date of the identified inmate. A comprehensive listing of functional limitations, including the origin of such limitations, will be developed and made available to the appropriate receiving agency, based upon that agency's currently published guidelines for referral.]

[(4) To avoid duplication of efforts, only pertinent portions of the medical records as defined by the receiving agency, and other information relating to the well-being of the inmate will accompany the resulting referral to the receiving agency. Upon approval and signing of this memorandum of understanding, the TBP&P may act as the central distribution point for referral to the appropriate agency.]

[(5) Agencies determined by the TBP&P and TDC to be the appropriate receiving agency will be notified of the pending release date and destination. Where possible, this will be accomplished no later than 30 days prior to release. The receiving agency may contact the inmate prior to release to coordinate delivery of services whenever feasible.]

~~[(6) All applicable standards for program accessibility by physically disabled individuals will be adhered to by the signature agencies of this memorandum of understanding.]~~

~~[(7) The receiving agency shall provide the referring agency with a response to the initial referral which details the action taken and the contact person involved.]~~

[(d) Responsibility. No agency who, by signing this memorandum of understanding participates in the efforts to assure continuity of care of releasing inmates, shall bear any responsibility other than that given them by their enabling legislation.]

~~[(e) Basis for referral.]~~

[(1) TDHS. The TDHS will accept referrals on persons who are at least 18 years of age or emancipated minors and financially eligible for services. There is no age requirement for primary home care, day activity and health services, and residential health care. The persons must also have sufficient need for assistance with daily living activities and a medical need and physician's orders for primary home care, day activity and health services, or residential health care. Other community services that are offered to help persons remain in their own homes and communities include family care, home-delivered or congregate meals, emergency care, emergency response systems, adult foster care, residential care, and special services to the handicapped. The TDHS will also accept referrals for any other services TDHS provides.]

[(2) TCD. The TCD provides services to persons who are deaf or hearing-impaired. Direct services, including interpreter services, information and referral services, services to the elderly, and message relay services, are provided by the nonprofit, community-based organizations called councils for the deaf. Currently, there are 16 councils located in 15 cities: Amarillo, Lubbock, Big Spring, El Paso, Corpus Christi, San Antonio, Abilene, Fort Worth, Austin, Houston (two), Sherman, Waco, Dallas, Tyler, and Beaumont.]

[(3) TCB. The TCB will accept referrals on individuals who have been diagnosed as having at least a visual acuity of 20%6170 best correction in both eyes, or worse. Individuals meeting this criteria may be referred to be considered for vocational rehabilitation, which may include employment assistance; job readiness, counseling, and guidance; independent living; and older blind services.]

[(4) TRC. The TRC will accept referrals on persons who have a physical or mental condition which significantly interferes with their ability to work. A broad range of services are available. Each individual is carefully assessed and services provided to eligible persons based on their needs. Services may include diagnostics, transportation, physical restoration, training, tools and equipment, job placement, and counseling.]

~~[(f) Adoption by rule. The departments, boards, and commissions by rule shall adopt this memorandum of understanding.]~~

~~[(g) Effective date. This memorandum of understanding is effective December 31, 1987.]~~

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802964

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

40 TAC §§107.1607, 107.1609, 107.1613

The repeals are proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provide the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§107.1607.Coordinated Services for Children and Youths.

§107.1609.Elimination of Unnecessary or Duplicative Program Reviews of Community Mental Health of Mental Retardation Centers.

§107.1613.Memorandum of Understanding on Individual Transition Planning for Students Receiving Special Education Services.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802965

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

CHAPTER 108. DIVISION FOR EARLY CHILDHOOD INTERVENTION SERVICES

The Texas Health and Human Services Commission (HHSC), on behalf of the Texas Department of Assistive and Rehabilitative Services (DARS), proposes to amend the DARS rules in Title 40, Part 2, Chapter 108, Division for Early Childhood Intervention Services. This proposal amends Subchapter A, Early Childhood Intervention Service Delivery, §§108.23, 108.29, and 108.47. This proposal also repeals §108.63 and §108.67 of Subchapter B, Procedural Safeguards and Due Process Procedures.

The proposed amendments clarify the definitions of "Family Educational Rights and Privacy Act of 1974 (FERPA)", "Provider", and "Supplanting" in §108.23; the meanings of "program income" and "maintenance of effort" in §108.29; and the standards of conduct in the Early Intervention Specialist code of ethics in §108.47. These amendments are for the purpose of more clearly complying with other controlling federal laws and state statutes. The content of the repeal of §108.63 is being transferred to Chapter 101, Subchapter E, Division 3, as new §101.1011 which is contemporaneously proposed elsewhere in this issue of the Texas Register. Section 108.67, "Charges for Access to Public Records" is being repealed because the procedures are either required by statute (Texas Government Code Chapter 552), by rules of the Attorney General, or are published by DARS in compliance with those statutes and rules.

In accordance with the requirements of Texas Government Code §2001.039, DARS has conducted a four-year review of Title 40, Part 2, Chapter 108, of the DARS rules. Chapter 108 consists of Subchapter A, Early Childhood Intervention Service Delivery, §§108.21, 108.23, 108.25, 108.27, 108.29, 108.31, 108.33, 108.35, 108.37, 108.39, 108.43, 108.47, and 108.48; Subchapter B, Procedural Safeguards and Due Process Procedures, §§108.55, 108.57, 108.59, 108.61, 108.63, and 108.67; Subchapter D, General Provisions for Case Management Services for Infants and Toddlers with Developmental Disabilities, §§108.221, 108.223, 108.225, 108.227, 108.229, 108.231, 108.233, and 108.235; Subchapter E, Developmental Rehabilitation Services, §§108.261, 108.263, and 108.265; and Subchapter F, System of Fees, §§108.291, 108.293, and 108.295. DARS has determined that the reasons for initially adopting these rules continue to exist except for Subchapter B, §108.63, and §108.67 because of the reasons stated above. Notice of the proposed rule review of Chapter 108 was published in the November 30, 2007, issue of the Texas Register (32 TexReg 8864).

The proposal is authorized by the Texas Human Resources Code, Chapter 73; and The Individuals with Disabilities Education Act, as amended, 20 U.S.C. §1400 et seq. and its implementing regulations; 34 C.F.R. Part 303, as amended.

Bill Wheeler, DARS Chief Financial Officer, estimates that for each year of the first five years that the proposal is in effect, there will be no material fiscal implications for state or local government.

Mr. Wheeler also estimates that for each year of the first five years the proposal is in effect, the public benefit anticipated as a result of adopting the rules will be the agency's compliance with House Bill 2292, 78th Legislature, Regular Session, and other existing provisions of law pertaining to provision of health and human services in Texas.

Mr. Wheeler has also determined there should be no material economic cost to persons who are required to comply with the proposal. Further, in accordance with Texas Government Code §2001.022, he has determined that the proposal will not affect a local economy, and, therefore, no local employment impact statement is required. Finally, Mr. Wheeler has determined that the proposal will have no adverse economic effect on small businesses or micro-businesses.

Written comments on the proposal may be submitted within 30 days of publication of this proposal in the Texas Register to Nancy Mikulencak, Rules Coordinator, Department of Assistive and Rehabilitative Services, 4800 North Lamar Boulevard, Suite 200, Austin, Texas 78756.

SUBCHAPTER A. EARLY CHILDHOOD INTERVENTION SERVICE DELIVERY

40 TAC §§108.23, 108.29, 108.47

The amendments are proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§108.23.Definitions.

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

(1) - (14) (No change.)

(15) Family Educational Rights and Privacy Act of 1974 (FERPA)--20 U.S.C. Section 1232g , as amended, and implementing regulations at [;] 34 CFR Part 99 - Federal law that outlines privacy protection for parents and children enrolled in the ECI program. FERPA includes rights to confidentiality and restrictions on disclosure of personally identifiable information, and the right to inspect records.

(16) - (27) (No change.)

(28) Provider [~~Provide~~]--A local private or public agency with proper legal status and governed by a board of directors or governing authority that accepts funds from the Department to administer the Early Childhood Intervention (ECI) Program.

(29) - (34) (No change.)

(35) Supplanting--The withdrawal or withholding of local, private, or other public funds for services which were or are available for services to children and expenditure of federal ECI funds instead [~~during the previous year of funding~~]. See 34 CFR §303.124 and 34 CFR Part 81 - Appendix.

(36) - (38) (No change.)

§108.29.Application and Program Requirements for Comprehensive Services.

(a) - (c) (No change.)

(d) Program income.

(1) Program income is defined in UGMS, and the use of it is limited by UGMS. DARS interprets UGMS requirements, to the extent that it has authority to do so, as all revenue directly generated by ECI contract-supported activities or earned only as a result of the ECI contract. It includes, but is not limited to, Medicaid Targeted Case Management (TCM), Medicaid Texas Health Steps/Comprehensive Care Program (THSteps/CCP), Medicaid Administrative Claiming (MAC), Children's Health Insurance Program (CHIP), Children with Special Health Care Needs (CSHCN) funds, and private insurance, and family cost share revenue.

(2) - (6) (No change.)

(e) Maintenance of Effort

(1) Maintenance of effort (MOE) represents the total funds and in-kind contributions available for support of the ECI program from sources other than the ECI contract. Reporting of MOE requires that all operating expenses, revenue sources, and in-kind contributions be reported to provide a clear and comprehensive valuation of the ECI program.

(2) The ECI provider's MOE may include, if applicable and allowable, the following:

(A) Federal funds, only if those funds do not fall within the prohibitions in 34 CFR §300.203, or [, ] state or [~~, and~~] local funds;

(B) - (D) (No change.)

(3) - (9) (No change.)

(f) - (g) (No change.)

§108.47.Early Intervention Specialist Code of Ethics.

An Early Intervention Specialist (EIS) must observe and comply with the following standards of conduct in the EIS code of ethics.

(1) - (12) (No change.)

(13) EISs must not refuse to provide services for which they are credentialed [~~solely~~] on the basis of a child's and/or family's gender, race, [~~socioeconomic status,~~ ] ethnicity, color, religion, national origin, [~~disability,~~ ] sexual orientation, or political affiliation , and they must not refuse to provide services for which they are credentialed solely on the basis of a child's or family's socioeconomic status or disability.

(14) - (15) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802966

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER B. PROCEDURAL SAFEGUARDS AND DUE PROCESS PROCEDURES

40 TAC §108.63, §108.67

The repeals are proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§108.63.Administrative Hearings Concerning Individual Child Rights.

§108.67.Charges for Access to Public Records.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802967

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

CHAPTER 109. OFFICE FOR DEAF AND HARD OF HEARING SERVICES

The Texas Health and Human Services Commission ("HHSC"), on behalf of the Texas Department of Assistive and Rehabilitative Services ("DARS"), proposes new rules, amendments, and repeals to the rules of the Texas Department of Assistive and Rehabilitative Services, Title 40, Part 2, Chapter 109, Office for Deaf and Hard of Hearing Services.

Specifically, DARS is proposing the following new rules, amendments, and repeals with respect to Chapter 109:

Subchapter A, General Rules: an amendment to §109.101, Definitions; and new §109.105, Training Fees, Gifts, Grants, or Donations, and §109.107, Trilingual Interpreter Services;

Subchapter B, Board for Evaluation of Interpreters and Interpreter Certification: deletion of the designation of a "Division 1" and its title "Definitions and Board Operations", as there are no other divisions listed under Subchapter B; the repeal of §109.201, Definitions, §109.209, Fees for Interpreter Training, §109.211, Trilingual Interpreter Services, §109.241, Revocation or Suspension of Certificate, §109.243, Grounds for Denying, Suspending, or Revoking an Interpreter's Certificate, and §109.245, Code of Professional Conduct; amendments to §109.203, Obtaining Documents and Information from the Office, §109.205, Registry of Qualified Interpreters, §109.223, Provisional Certificate, §109.231, Validity of Certificates and Recertification, §109.233, Certificate Renewal, 109.235, Continuing Education Programs; and new §109.227, Certification, §109.229, Administration of Examination for Court Interpreter Certification and §109.237, Disciplinary Actions;

Subchapter C, Certified Court Interpreters: the repeal of §109.301, Definitions, §109.313, Lists of Qualified Court Interpreters and Providers of Communication Access Realtime Translation Services, §109.315, Gifts, Grants, or Donations, §109.321, Certification, §109.327, Administration of Examinations, §109.329, Form for Certificates, §109.331, Procedures for Renewal of a Certificate, §109.333, Fees for Training, Examinations, Initial Certification and Certification Renewal, §109.335, Continuing Education Programs Required for Court Interpreter Initial Certification or Certification Renewal, §109.341, Code of Professional Conduct, §109.351, Denial, Suspension, or Revocation of Certificate, and §109.353, Disciplinary Actions; amendments to §109.303, Requirements for Interpreting Court Proceedings in Courts of the State of Texas, §109.311, Obtaining Documents and Information from the Office, §109.323, Qualifications of Certified Court Interpreters, §109.325, Training Programs for Certified Court Interpreters Managed by the Department or by Public or Private Educational Institutions, §109.337, Instructions for the Compensation of a Certified Court Interpreter and Designation of the Party or Entity Responsible for Payment of Compensation, §109.339, Administrative Sanctions Enforceable by the Department, §109.361, Prohibited Acts, §109.363, Enforcement, §109.365, Criminal Offense, §109.367, Actions Against Persons Not Certified as Court Interpreters, §109.371, Court Interpreter Qualifications in Civil Cases or Depositions Pursuant to the Civil Practice and Remedies Code and §109.373, Court Interpreter Qualifications in Criminal Actions Pursuant to Code of Criminal Procedure; and the title of Subchapter C is amended to "Certified Court Interpreters General Rules";

Subchapter D, Specialized Telecommunications Assistance Program: amendments to §109.403, Statutory Authority, §109.405, Definitions, §109.407, Determination of Basic Equipment or Service, §109.411, Entities Authorized to Certify Disability, and §109.415, Determination of Voucher Value.

These new rules, amendments, and repeals are being proposed pursuant to Human Resources Code, Chapter 81; Texas Government Code, Chapter 57; Code of Criminal Procedure, Article 38; Civil Practices and Remedies Code, Chapter 21; and pursuant to DARS' four-year rule review of Chapter 109, which DARS conducted as required by Texas Government Code §2001.039. As a result of the review, DARS determined that the reasons for originally adopting the rules continue to exist. However, the review identified areas where new rules, amendments, and repeals were needed to strengthen and clarify rules relating to DARS' Office for Deaf and Hard of Hearing Services and the services and programs which it administers on behalf of deaf and hard of hearing consumers, especially rules relating to DARS' interpreter certification programs. Notice of the proposed rule review of Chapter 109 was published in the November 30, 2007, issue of the Texas Register (32 TexReg 8864).

Note the substantive content of repealed §§109.201, 109.209, and 109.211, is being transferred and proposed contemporaneously elsewhere in this issue of the Texas Registerin §109.101, Definitions, and new §109.105, Training Fees, Gifts, Grants, or Donations, and §109.107, Trilingual Interpreter Services, respectively, of Chapter 109, Subchapter A; and the substantive content of repealed §§109.241, 109.243, and 109.245, is being transferred and proposed contemporaneously elsewhere in this issue of the Texas Register as new §101.1107, Revocation and Suspension of a Certificate, §101.1109, Grounds for Denying, Revoking, or Suspending an Interpreter's Certificate, and §101.1111, Codes of Professional Conduct and Ethics, respectively, of Title 40, Part 2, Chapter 101, Administrative Rules and Procedures, Subchapter E, Appeals and Hearings Procedures, Division 4, Office for Deaf and Hard of Hearing Services.

Note that the substantive content of §§109.321, 109.327, and 109.353, of Subchapter C, is being transferred and proposed contemporaneously elsewhere in this issue of the Texas Register in new §109.227, Certification, §109.229, Administration of Examination for Court Interpreter Certification, and §109.237, Disciplinary Actions, respectively, of Chapter 109, Subchapter B. Also note that the substantive content of repealed §109.341 and §109.351, of Subchapter C, is being transferred and proposed contemporaneously elsewhere in this issue of the Texas Register as new §101.1111, Codes of Professional Conduct and Ethics, and §101.1109, Grounds for Denying, Revoking, or Suspending an Interpreter's Certificate, respectively, of Title 40, Part 2, Chapter 101, Administrative Rules and Procedures, Subchapter E, Appeals and Hearings Procedures, Division 4, Office for Deaf and Hard of Hearing Services.

Bill Wheeler, Chief Financial Officer, Texas Department of Assistive and Rehabilitative Services, estimates that for each year of the first five years that the proposal is in effect, there will be no foreseeable fiscal implications for state or local governments costs or revenues as a result of enforcing or administering the proposal.

Mr. Wheeler has determined that for each year of the first five years the proposal is in effect, the public benefit anticipated as a result of enforcing the proposal will be stronger and clearer rules relating to services for the deaf and hard of hearing community and assurances to the public that the necessary rules are in place to provide services to the deaf and hard of hearing community so that it is able to fully integrate into and participate as part of society at large and receives equal access to community programs and services. Mr. Wheeler also has determined that there will be no probable economic cost to persons who are required to comply with the proposal.

Furthermore, in accordance with Texas Government Code §2001.022, Mr. Wheeler has determined that the proposal will not affect a local economy, and, therefore, no local employment impact statement is required. Finally, Mr. Wheeler has determined that the proposal will have no adverse economic effect on small businesses or micro-businesses.

SUBCHAPTER A. GENERAL RULES

40 TAC §§109.101, 109.105, 109.107

The amendments and new sections are proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§109.101.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise: [~~DHHS or Office--Office for Deaf and Hard of Hearing Services, Division for Rehabilitation Services, Department of Assistive and Rehabilitative Services.~~]

(1) BEI--Board for Evaluation of Interpreters, Office for Deaf and Hard of Hearing Services, Division for Rehabilitation Services, Department of Assistive and Rehabilitative Services.

(2) Certified court interpreter--an individual who is a qualified interpreter as defined in Article 38.31, Code of Criminal Procedure, or §21.003, Civil Practice and Remedies Code, or certified under Subchapter B of this chapter by the Department of Assistive and Rehabilitative Services to interpret court proceedings for a hearing-impaired individual.

(3) Commissioner--Commissioner of the Department of Assistive and Rehabilitative Services.

(4) Court proceeding--a proceeding that is under the jurisdiction of Texas state courts for civil cases and criminal actions, including, but not limited to, arraignments, hearings, examining trials, trials, depositions, mediations, court-ordered arbitrations, or other forms of alternative dispute resolution.

(5) DARS Inquiries Unit--toll-free, 1-800-628-5115 (V) or 1-866-581-9328 (TTY).

(6) Department--the Department of Assistive and Rehabilitative Services (DARS).

(7) DHHS or Office--Office for Deaf and Hard of Hearing Services, Division for Rehabilitation Services, Department of Assistive and Rehabilitative Services, 4900 North Lamar Boulevard, Austin, Texas 78751, 512-407-3250 (V) or 512-407-3251 (TTY).

(8) Director--Director of the Office for Deaf and Hard of Hearing Services.

(9) Hearing-impaired individual --an individual who has a hearing impairment, regardless of whether the individual also has a speech impairment that inhibits the individual's comprehension of proceedings or communication with others.

(10) Qualified interpreter--an individual who holds a current interpreter certificate issued by the BEI or a current certificate issued by the Registry of Interpreters for the Deaf, Inc. (RID). This definition does not apply to an individual who is required to hold a court interpreter certification from BEI or a legal certification from RID to interpret court proceedings.

(11) RID--Registry of Interpreters for the Deaf, Inc.

(12) Trilingual interpreter services--the provision of interpreting services by an otherwise qualified interpreter who is proficient in a third language, in addition to English and sign language.

§109.105.Training Fees, Gifts, Grants, or Donations.

(a) The department may establish and collect training fees and accept gifts, grants, and donations of money, personal property, or real property for use in expanding and improving services to persons of this state who are deaf or hard of hearing.

(b) The department may accept gifts, grants, or donations from private individuals, foundations, or other entities to assist in administering the court interpreter certification program.

(d) Authority: Human Resource Code, §81.006(b)(5) and Texas Government Code, §57.022(b)(5) and §57.021(e).

§109.107.Trilingual Interpreter Services.

The Office has developed guidelines for trilingual interpreter services, and provides information about training programs for persons who provide trilingual interpreter services. Copies of the guidelines and information about the training programs may be obtained from the Office. (Authority: Human Resources Code, §81.006(b)(6) - (7).)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802968

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER B. BOARD FOR EVALUATION OF INTERPRETERS AND INTERPRETER CERTIFICATION

DIVISION 1. DEFINITIONS AND BOARD OPERATIONS

40 TAC §§109.201, 109.209, 109.211, 109.241, 109.243, 109.245

No other statute, article, or code is affected by this proposal.

§109.201.Definitions.

§109.209.Fees for Interpreter Training.

§109.211.Trilingual Interpreter Services.

§109.241.Revocation or Suspension of Certificate.

§109.243.Grounds for Denying, Suspending, or Revoking an Interpreter's Certificate.

§109.245.Code of Professional Conduct.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802969

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER B. BOARD FOR EVALUATION OF INTERPRETERS AND INTERPRETER CERTIFICATION

40 TAC §§109.203, 109.205, 109.223, 109.227, 109.229, 109.231, 109.233, 109.235, 109.237

No other statute, article, or code is affected by this proposal.

§109.203.Obtaining Documents and Information from the Office.

Documents and other information identified in these rules as being available from the Office, may be obtained by making a request to the Office [~~for Deaf and Hard of Hearing Services, 4900 North Lamar Blvd, Austin, Texas 78751, 512-407-3250 (V) or 512-407-3251 (TTY), or by calling the DARS Inquiries Unit, toll-free, 1-800-628-5115~~ ]. (Authority: Human Resources Code, §81.006(b)(3).)

§109.205.Registry of Qualified Interpreters.

(a) The Office maintains a registry of available qualified interpreters for persons who are deaf or hard of hearing. The registry is updated at least quarterly and is available to interested persons at cost. [~~Copies may be obtained from the Office. (Authority: Human Resources Code, §81.006(a)(4).)~~]

(b) The department maintains lists of certified court interpreters and other persons the department has determined are qualified to act as court interpreters.

(c) The lists of certified court interpreters and other persons the department has determined are qualified to act as court interpreters are sent by the Office to each state court.

(d) Copies may be obtained from the Office upon request.

(e) Authority: Human Resources Code, §81.006(a)(4) and Texas Government Code, §57.021(c).

§109.223.Provisional Certificate.

(a) - (c) (No change.)

(d) The Office [~~office~~] must approve or deny a provisional certificate holder's application for a certificate not later than the 180th day after the date the provisional certificate is issued. The Office [~~office~~] may extend the 180-day period if the results of an examination have not been received by the Office [~~office~~] before the end of that period.

(e) The Office [~~office~~] has established a fee for provisional certificates in an amount reasonable and necessary to cover the cost of issuing the certificate. The amount of the current fee for provisional certificates may be obtained from the Office.

(f) Authority: Human Resources Code, §81.0074.

§109.227.Certification.

(a) The department will certify an applicant who passes the appropriate examination prescribed by the department and who possesses the other qualifications required by the rules in this chapter.

(b) Upon successful completion of all requirements for certification and approval by the Office, the applicant shall be issued a card evidencing certification.

§109.229.Administration of Examination for Court Interpreter Certification.

(a) General: The provisions of this section shall apply only to applicants for certified court interpreter certification.

(1) In accordance with Texas Government Code, §57.023, the department will prepare court interpreter examinations under this subchapter that test an applicant's knowledge, skill, and efficiency in the field in which the applicant seeks certification.

(2) A person who fails an examination may apply for reexamination at the next examination scheduled after the date the person failed the original examination.

(3) Examinations will be offered in the state at least twice a year at times and places designed by the department. The current schedule of times and places for examinations may be obtained from the Office.

(b) Examination on legal and court procedure skills and knowledge:

(1) A passing grade on the examination is 80 percent.

(2) The examinations will be administered to applicants with content and format determined by the Office.

(3) Subject to the following provisions, an applicant may request an accommodation in accordance with the Americans with Disabilities Act.

(A) The request must be in writing.

(B) Proof of disability and the limiting factors of the disability may be required.

(4) An applicant who does not attend a scheduled examination will forfeit the examination fee. An applicant may attend a future examination without payment of additional fee upon proof of the following:

(A) Illness of the person or an intermediate family member whom the person is required to attend; or

(B) Documented evidence that the applicant was unable to attend the examination due to reasons beyond his or her control.

(5) Certification is effective for a period of 5 years from the date of certification.

(6) Cheating on an examination is grounds for denial, suspension, or revocation of a certification and/or an administrative penalty.

§109.231.Validity of Certificates and Recertification.

(a) (No change.)

(b) Interpreters may be recertified who receive up to a specified number of continuing education credits, or who achieve an adequate score on a specified examination. Information on current recertification requirements may be obtained from the Office. (Authority: Human Resources Code, §81.007(g).)

§109.233.Certificate Renewal.

(a) - (f) (No change.)

(g) Nonreceipt of a certification renewal notice from the Office does not exempt a person from any requirements of this subchapter.

(h) [~~(g)~~] Authority: Human Resources Code, §81.0073.

§109.235.Continuing Education Programs.

The Office recognizes, prepares, and/or administers continuing education programs for its certificate holders. A certificate holder must participate in the programs to the extent required by the Office [~~office~~ ] to keep the person's certificate. Current requirements for continuing education, and announcements of current training opportunities, may be obtained from the Office. (Authority: Human Resources Code, §81.007(l) , and Texas Government Code §57.022(b)(6).

§109.237.Disciplinary Actions.

(a) The Department or Office may take disciplinary action against a certificate holder who is found to be in violation of a statute, rule, or policy of the Office or Department, including any of the provisions of §101.1109 of this title (relating to Grounds for Denying, Revoking, or Suspending an Interpreter's Certificate).

(b) A disciplinary action may be composed of any one or combination of the following listed in paragraphs (1) - (6) of this subsection:

(1) revocation of a certification;

(2) suspension of a certification;

(3) probation of a suspended certification;

(4) refusal to renew a certification;

(5) issuance of a formal or informal reprimand; or

(6) with respect to certified court interpreters only, assessment of an administrative penalty under the law.

(c) All final disciplinary actions taken by the Department or by the Office shall be permanently recorded and made available upon request as public information. Except for an informal reprimand, all disciplinary actions may be released in a press release, and may be transmitted to the RID, as appropriate.

(d) An interpreter whose certification has expired for nonpayment of renewal fees continues to be subject to all statutory, rule, and procedural provisions of the Department governing certified interpreters until the certification is revoked by the Department or becomes nonrenewable under the law.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802970

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER C. CERTIFIED COURT INTERPRETERS

40 TAC §§109.301, 109.313, 109.315, 109.321, 109.327, 109.329, 109.331, 109.333, 109.335, 109.341, 109.351, 109.353

No other statute, article, or code is affected by this proposal.

§109.301.Definitions.

§109.313.Lists of Qualified Court Interpreters and Providers of Communication Access Realtime Translation Services.

§109.315.Gifts, Grants, or Donations.

§109.321.Certification.

§109.327.Administration of Examinations.

§109.329.Form for Certificates.

§109.331.Procedures for Renewal of a Certificate.

§109.333.Fees for Training, Examinations, Initial Certification and Certification Renewal.

§109.335.Continuing Education Programs Required for Court Interpreter Initial Certification or Certification Renewal.

§109.341.Code of Professional Conduct.

§109.351.Denial, Suspension, or Revocation of Certificate.

§109.353.Disciplinary Actions.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802971

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER C. CERTIFIED COURT INTERPRETERS GENERAL RULES

40 TAC §§109.303, 109.311, 109.323, 109.325, 109.337, 109.339, 109.361, 109.363, 109.365, 109.367, 109.371, 109.373

No other statute, article, or code is affected by this proposal.

§109.303.Requirements for Interpreting Court Proceedings in Courts of the State of Texas.

(a) (No change.)

(b) A person interpreting court proceedings in Texas courts must hold a current court interpreter [~~legal~~] certificate issued by the BEI [~~Registry of Interpreters for the Deaf~~] or a current legal [ ~~court interpreter~~] certificate issued by the RID [ ~~Board for Evaluation of Interpreters of the Department of Assistive and Rehabilitative Services.~~].

(d) Authority: Texas Government Code, [§ ]§57.026 and §57.027 [~~, 57.027(a), 57.027(b)~~].

§109.311.Obtaining Documents and Information from the Office.

(a) Documents and other information concerning court interpreter certification that are identified as being available from the Office, may be obtained from the Office [Department of Assistive and Rehabilitative Services, Office for Deaf and Hard of Hearing Services, 4900 North Lamar Blvd., Austin, Texas 78751-2399, or by calling the DARS Inquiries Unit, toll-free, 1-800-628-5115].

(b) (No change.)

§109.323.Qualifications of Certified Court Interpreters.

(a) (No change.)

(b) An individual shall not interpret a court proceeding or deposition unless properly qualified under this subsection as court interpreter for that particular case. In order to be qualified as court interpreter for a particular case, the individual must present to the judge presiding, or to the court reporter at a deposition, either:

(1) a current card issued by the BEI [~~Department of Assistive and Rehabilitative Services, Division for Rehabilitation Services, Board for Evaluation of Interpreters~~], stating that the individual is certified as a court interpreter; or

(2) a current membership card issued in the name of the individual by the RID [~~Registry of Interpreters for the Deaf, Inc., 333 Commerce Street, Alexandria, VA 22314~~], carrying the designations "Certified" and "SC:L."

(d) Training and Qualifications to Take Examination.

(1) (No change.)

(2) The current list of approved courses of instruction in courtroom interpretation skills and training programs for interpreters applying for Court Interpreter Certification or certified court interpreters needing continuing education unit credits may be obtained from the Office [~~Department of Assistive and Rehabilitative Services, Office for Deaf and Hard of Hearing Services, 4900 North Lamar Blvd., Austin, Texas 78751-2399,~~] or by calling the DARS Inquiries Unit, toll-free, 1-800-628-5115.

(e) A person with an expired certification shall not perform work requiring a certification under Chapter 57 of the Texas Government Code.

(f) [~~(e)~~] Authority: Texas Government Code, [§]§57.022(b)(1)[ ~~, 57.027(a), 57.027(b)~~].

§109.325.Training Programs for Certified Court Interpreters Managed by the Department or by Public or Private Educational Institutions.

(a) - (b) (No change.)

§109.337.Instructions for the Compensation of a Certified Court Interpreter and Designation of the Party or Entity Responsible for Payment of Compensation.

(a) In accordance with Civil Practice and Remedies Code, §21.006 and HB 2292, 78th Legislature (RS), §1.21, the court interpreter in civil cases and depositions shall be paid a reasonable fee determined by the court after considering the recommended fees of the Department [~~of Assistive and Rehabilitative Services~~ ]. If the interpreter is required to travel, the interpreter's actual expenses of travel, lodging, and meals relating to the case shall be paid at the same rate provided for state employees. The interpreter's fee and expenses shall be paid from the general fund of the county in which the case was brought.

(b) In accordance with Code of Criminal Procedure, Article 38.31(f), and HB 2292, 78th Legislature (RS), §1.21, interpreters appointed in criminal actions, to include arraignments, hearings, examining trials, and trials, are entitled to a reasonable fee determined by the court after considering the recommendations of the Department [~~of Assistive and Rehabilitative Services~~]. When travel of the interpreter is involved, all the actual expenses of travel, lodging, and meals incurred by the interpreter pertaining to the case he or she is appointed to serve shall be paid at the same rate applicable to state employees.

(c) Under the authority of the Texas Code of Criminal Procedure Art. 38.31(f), Texas Government Code, §57.022(b)(7), and the Civil Practice and Remedies Code, §21.006, the Department [~~Office~~ ] establishes recommended fees for the payment of interpreter services for persons who are deaf or hard of hearing which must be provided in proceedings of state agencies; state, county, and municipal civil and criminal courts; and political subdivisions.

(d) - (g) (No change.)

§109.339.Administrative Sanctions Enforceable by the Department.

(a) If a person violates any provision of Title 2, Texas Government Code, Chapter 57, the provisions of Texas Human Resources Code, Chapter 81 (relating to the Office [~~Texas Commission for the Deaf and Hard of Hearing~~]), any provision of Subchapter B of this chapter, or any provision of an order of the Director or the Office, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both administrative penalties and sanctions in accordance with Texas Human Resources Code, Chapter 81 or Texas Government Code, Chapter 57.

(b) Authority: Texas Government Code, §57.022(b)(8) and [,] §57.027(b).

§109.361.Prohibited Acts.

(a) A person may not interpret for a hearing-impaired individual at a court proceeding or advertise or represent that the person is a certified court interpreter unless the person holds a current court interpreter [~~legal~~] certificate issued by the BEI [~~Registry of Interpreters for the Deaf~~] or a current legal [~~court interpreter~~] certificate issued by the RID [~~Board for Evaluation of Interpreters of the Department of Assistive and Rehabilitative Services~~].

(b) - (c) (No change.)

§109.363.Enforcement.

(a) The Department or Office [~~commissioner~~ ] shall investigate allegations of violations, and shall enforce this subchapter. Allegations concerning violations of this subchapter should be forwarded, in writing, to the Director[~~, Office for Deaf and Hard of Hearing Services, 4900 North Lamar Blvd., Austin, Texas 78751~~].

(b) Authority: Texas Government Code, §57.024.

§109.365.Criminal Offense.

(a) Texas Government Code, §57.027(a) provides that a person commits an offense if the person violates Texas Government Code Chapter 57, Subchapter B, pertaining to court interpreters for hearing impaired individuals, or a rule adopted under Texas Government Code Chapter 57, Subchapter B [ ~~the subchapter~~]. An offense under Texas Government Code, §57.027(a) is a Class A misdemeanor.

(b) The provisions of this subchapter are [ ~~Sections 109.303, 109.323, 109.325, 109.327, 109.329, 109.331, 109.333, 109.335, 109.337 and 109.361 of this subchapter (relating to Certified Court Interpreters) are~~] adopted under the provision of law described in subsection (a) of this section, and violations are subject to criminal penalties. In addition, violations of the provisions of §109.303 and §109.361 of this subchapter would constitute direct violations of Texas Government Code, §57.026, and would also be subject to criminal penalties under Texas Government Code, §57.027(a).

§109.367.Actions Against Persons Not Certified as Court Interpreters.

(a) The Office shall investigate complaints and may initiate disciplinary [~~take~~ ] action against a person alleged to perform court interpretation without certification or authorization as provided by this subchapter. The following investigative process and resulting action listed in paragraphs (1) - (3) of this subsection will be followed by the Office to ensure affected individuals are afforded due process of law.

(1) Upon receipt of a formal or staff-initiated complaint, the information will be evaluated to determine if the evidence provides reasonable [~~sufficient probable~~] cause that a violation may have occurred.

(2) If reasonable [~~sufficient probable~~] cause does not exist, an investigation will not be initiated.

(3) If reasonable [~~sufficient probable~~] cause is found, then an investigation will be initiated by the Office staff to determine if a violation of law has occurred. The Office's investigative process will be as follows.

(A) The individual [~~or firm~~] will be advised of the complaint and the specific section of the Act which appears to have been violated. [If the initial evidence is sufficiently strong, the Director may offer the respondent a consent order that, if accepted, will be presented to the Office for acceptance or rejection. The consent order shall include an administrative penalty not inconsistent with §109.339 of this title (relating to Administrative Sanctions Enforceable by the Department) and a compliance requirement. The respondent shall be fully informed of the range of penalties allowed under criminal, civil, and administrative proceedings.]

(B) The individual [~~respondent~~] will be afforded the opportunity to respond to the complaint to show that the actions which precipitated the complaint are not in violation of the Act [~~, or to accept the consent order~~].

(C) If, after evaluation of the individual's [~~respondent's~~ ] response, a violation appears evident, the individual [~~respondent~~] will be afforded the opportunity for a hearing as provided to certificate holders under Chapter 101, Subchapter E, Divisions 1 and 4 of this title (relating to General Rules and Office for Deaf and Hard of Hearing Services) or to resolve the complaint through a Department order, which may include the imposition of an administrative penalty [~~to resolve the allegations informally in the same manner prescribed for certification holders in §109.353 of this title (relating to Disciplinary Actions)~~].

[(D) Any Office action under this paragraph which is not informally disposed by agreement or consent order will be considered a contested case and will be handled in accordance with applicable law and Office rules].

(b) Authority: Texas Government Code, § §57.022(b)(8), 57.026, and 57.027.

§109.371.Court Interpreter Qualifications in Civil Cases or Depositions Pursuant to Civil Practice and Remedies Code.

(a) A court interpreter in a civil case or deposition in Texas courts must hold a current court interpreter [~~legal~~ ] certificate issued by the BEI [~~Registry of Interpreters for the Deaf~~] or a current legal [ ~~court interpreter~~] certificate issued by the RID [~~Board for Evaluation of Interpreters of the Department of Assistive and Rehabilitative Services~~].

(b) Source: Civil Practice and Remedies Code, §21.003.

§109.373.Court Interpreter Qualifications in Criminal Actions Pursuant to Code of Criminal Procedure.

(a) A qualified interpreter in criminal actions in Texas courts, to include arraignments, hearings, examining trials, and trials, for a person who has a hearing impairment that inhibits the person's comprehension of the proceedings or communication with others, must hold a current court interpreter [~~legal~~] certificate issued by the BEI [~~Registry of Interpreters for the Deaf~~] or a current legal [ ~~court interpreter~~] certificate issued by the RID [~~Board for Evaluation of Interpreters of the Department of Assistive or Rehabilitative Services~~ ].

(b) Source: Code of Criminal Procedure, Art. 38.31(g).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802972

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER D. SPECIALIZED TELECOMMUNICATIONS ASSISTANCE PROGRAM

40 TAC §§109.403, 109.405, 109.407, 109.411, 109.415

No other statute, article, or code is affected by this proposal.

§109.403.Statutory Authority.

The specialized telecommunications program is created under authority of the Utilities Code, Chapter 56, Subchapter E [~~Human Resources Code, Chapter 81 and Senate Bill 667, 75th Texas Legislature, 1997~~].

§109.405.Definitions.

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

(1) Application--The forms the Office [~~form DHHS~~ ] uses to gather and document information about an individual applying for assistance under this program.

(2) - (3) (No change.)

(4) Financial Independence--When two [~~one~~] or more otherwise eligible individuals reside in the same household but are not dependent upon one another for financial support.

(5) - (9) (No change.)

(10) Voucher--A document of record which is issued to eligible applicants with the program and which can be exchanged with a vendor for equipment listed on the face of the voucher and which guarantees payment of up to but not exceeding the amount specified for the listed equipment or services after delivery of the equipment or service.

§109.407.Determination of Basic Equipment or Service.

(a) (No change.)

(b) A list of available equipment or services will be maintained by the Office [~~DHHS~~].

§109.411.Entities Authorized to Certify Disability.

(a) An applicant must be certified as a person with a disability which interferes with the person's ability to access the telephone network. The following can serve as certifiers:

(1) - (3) (No change.)

(4) DARS rehabilitation counselor, or the Office [~~DHHS~~ ] approved state or federal employee, or the Office [~~DHHS~~ ] approved state or federal contractor;

(5) - (9) (No change.)

(10) STAP specialist as named in an Office [~~a DHHS~~ ] STAP Outreach and Training contract, or Office [ ~~DHHS-~~]approved Resource Specialist; or

(11) (No change.)

(b) (No change.)

(c) An application must be certified before the Office [~~DHHS~~ ] can process and approve the application and issue the voucher.

§109.415.Determination of Voucher Value.

(a) This program provides financial assistance to eligible persons with a disability to enable the persons to purchase a basic specialized telecommunications equipment or service which will provide telephone network access. The value of each voucher is based on the cost of the basic equipment or service necessary to enable the applicant to access the telephone network. The value of the voucher will be determined by the Office [~~DHHS~~].

(b) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 9, 2008.

TRD-200802973

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 20, 2008

For further information, please call: (512) 424-4050