Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 16. ECONOMIC REGULATION Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Customer Service and Protection 16 TAC sec.23.48 The Public Utility Commission of Texas (commission) adopts an amendment to sec.23.48, with changes to the proposed text as published in the June 28, 1991, issue of the Texas Register (16 TexReg 3574). The section as amended requires both telephone and electric utilities to notify the commission of interruptions of service. With respect to telephone utilities, local exchange companies (LECs) will be required to notify the commission of interruptions of service lasting four or more hours and which affect: 50% of the toll circuits serving an exchange; or 50% of the extended area service circuits serving an exchange; or 50% of a central office; or 20% or more of an exchange's access lines. These guidelines are to be considered a minimum requirement for reporting service interruptions. LECs will be permitted to use their discretion in reporting major outages lasting less than four hours. Any service interruption report to the commission must state the cause(s) of the interruption. Electric utilities will be required to notify the commission of service interruptions affecting their entire system or any major division of the system which is owned or operated by the utility lasting more than one hour. Service interruption reports to the commission must also state the cause(s) of such interruptions. The commission has also added new subsection (e) to sec.23.48. This subsection requires both telephone and electric utilities to implement emergency operations plans and to file a general description of such plans with the commission by December 31, 1992 and every two years thereafter. For telephone utilities, the emergency operations plan, at a minimum, must include a communications plan that describes the procedures for contacting the media, customers, and critical users either before or at the onset of an emergency as well a list of priorities for restoration of service. For electric utilities, the emergency operations plan must include a description of the registry of customers with special major life- sustaining equipment and the plan to identify and communicate with these customers; a communications plan that describes the procedures for contacting the media, customers, and critical loads before or at the onset of an electrical emergency; curtailment priorities and procedures for shedding load and rotating blackouts; priorities for restoration of service; a summary of power plant weatherization plans and procedures; and a summary of the utility's alternate fuel and storage capacity. Comments on the amendments were received from both electric and telephone utilities as well as other interested entities. With regard to the electric issues, comments were received from: Central and Southwest Services, Inc.; Gulf States Utilities Company; Houston Lighting and Power Company; Lower Colorado River Authority; Southwestern Public Service Company; Texas Electric Cooperatives, Inc.; Texas Industrial Energy Consumers; Texas-New Mexico Power Company; and Texas Utilities Electric Company; With regard to the telephone aspects of the rule, comments were submitted by: AT&T; Central Telephone Company of Texas; Southwestern Bell Telephone; Texas Telephone Association, and United Telephone Company of Texas, Inc. The State of Texas also submitted comments on the proposal. Texas-New Mexico Power Company (TNP) objected to the one-hour outage reporting requirement in sec.23.48(c)(2). TNP contends that this requirement will unduly burden utilities and could result in a substantial influx of data for which the commission has little use. The commission disagrees. The commission believes that this requirement will be useful in monitoring utilities." Additionally, the commission notes that a number of utilities have been voluntarily reporting outages of more than an hour which has not resulted in an unduly large amount of data. TNP further suggested that the commission emergency operations plan requirements be modeled after the Power System Emergency Reporting Procedures manual published by the Department of Energy (DOE). These procedures are applicable to utilities subject to the Federal Power Act. The commission believes that the DOE guidelines are too restrictive and in fact require more reports than are contemplated under the amendments to sec.23.48. The commission is of the opinion that sec.23.48 as amended will provide sufficient information for the commission to monitor the activities of utilities in times of emergency. Texas Electric Cooperatives, Inc. (TEC), an association of electric distribution cooperatives, also objected to the one-hour outage reporting requirement. TEC contended that shortening the reportable outage requirement from four hours to one hour is not practical for electric cooperatives which serve in predominantly rural areas. TEC notes that the distance to be traveled by cooperative service crews responding to an outage is generally greater than for utilities serving in higher density, urban areas. As such, TEC suggests that the four-hour outage reporting requirement be retained for electric cooperatives. In the alternative, if the one hour requirement is applied to cooperatives, TEC recommends that the proposed criteria for a reportable event not be altered. The commission does not believe that cooperatives are sufficiently distinct to merit different treatment from larger utilities. For instance, portions of Texas Utilities' service territory are similar to that served by rural cooperatives. The one-hour outage reporting requirement will apply to all electric utilities. The commission has made no changes to the criteria for a reportable event. The Lower Colorado River Authority (LCRA) suggested language to clarify that the reporting requirements of sec.23.48(c)(2) apply only to service interruptions on systems owned or operated by the utility. The commission agrees with LCRA and has added the requested language. LCRA also suggested language to sec.23.48(e)(2) (A) and (B) that would require the information referred to in these subsections to be submitted only by utilities that directly serve end use customers. The commission agrees with this suggestion and has made the requested change. Southwestern Public Service Company (SPS) had several comments on the proposed amendments. SPS observed that the scope of the amendments to sec.23.48 was much narrower than the outage reporting guidelines issued by the commission in January 1991. These procedures outlined in the publication "Public Utility Commission of Texas Emergency Reporting Procedures" were intended to provide guidance for utilities until the amendments to sec.23.48 became final. The commission will revise these guidelines to be consistent with the final version of sec.23.48. SPS also noted that the rule as proposed would require multi-jurisdictional companies to report outages occurring outside their Texas service territories. SPS suggested that language be added to limit outage reporting requirements to outages occurring in Texas only. The commission agrees and has added language to clarify this point. SPS also suggested that since the commission already requires a number of reports to be filed in odd-numbered years that the emergency plan descriptions be submitted in even-numbered years. The commission believes this is a reasonable suggestion and has changed the rule to require the emergency plan descriptions to be filed by December 31, 1992 and every two years thereafter. Finally, SPS requested that the phrase "at the onset" in sec.23.48(e) (2)(B) be changed to "as soon as reasonably possible after the onset." The commission agrees in part with this suggestion. The commission notes, however, that there are circumstances (i.e., hurricanes) in which utilities will be able to contact the media, customers, and critical loads before an emergency. The commission has added the phrase "as soon as reasonably possible" to this subsection to provide a measure of flexibility on this requirement. Texas Utilities Electric (TU Electric) objected to the language in sec.23.48(e) (2)(B) requiring electric utilities to solicit help from cogenerators in times of emergency. TU Electric contended that this dictates the actions of utilities in times of emergency and recommends that this language be deleted from the rule. The commission does not intend to intrude upon the legitimate management prerogatives of utilities, but does believe that in times of emergency reasonable power supply options should be explored. The commission has therefore modified this portion of the rule to be permissive rather than mandatory. Texas Industrial Energy Consumers (TIEC) suggested that utilities be required to file copies of their emergency operations plans with the commission to allow the public an opportunity to comment on them. TIEC notes that the names and addresses of customers with in-house, life-sustaining equipment could be redacted from the public of the plans to remedy any privacy concerns of those customers. The commission disagrees with this suggestion. In addition to possible security concerns, such a procedure could also lead to disagreements over curtailment and restoration of service priorities. The commission does not intend, through these amendments, to dictate priorities for curtailment or restoration of utility service. Rather, the objective of this portion of the rule is to insure that utilities have in place a comprehensive plan for responding to and recovering from emergency situations. TIEC also suggested that the communications plan referenced in sec.23.48(e)(2) (B) should provide interruptible customers priority status in the notification process. TIEC reasons that, in many instances, interruptible customers would be a quick source of additional energy in times of emergency and should thus be given priority in the notification process. The commission acknowledges that, in certain instances, this may be the case, but notes that TIEC's suggestion intrudes on the legitimate management prerogatives of utilities. The commission does not believe such decisions should be established in a rule, but should be handled on a case-by-case basis. Finally, TIEC requested additional language requiring utilities to state how they intend to compensate non-utility generators that provide non-contract power during an emergency. The commission disagrees with this suggestion. Such decisions are more appropriately within the scope of utility management and should be addressed in the context of a rate case or avoided cost proceeding. Central and Southwest Services, Inc. supported the amendments and strongly recommended against having the details of the emergency plan available to the public. The commission agrees and believes that the rule as amended addresses this concern. Houston Lighting and Power supported the objectives of the amendments and offered no changes to amendments as proposed. Finally, Gulf States Utilities Company also supported the amendments and noted that the rule as proposed would be essentially unaffected by the Clean Air Act amendments of 1990. The State of Texas did not oppose the adoption of the amendments, but noted that under the Texas Disaster Act the governor is delegated the responsibility of planning and reacting to emergencies and disasters within this state. The State of Texas observed that the amendments to sec.23.48 were not inconsistent with the Texas Disaster Act as long as the commission did not seek to establish priorities for restoration of electric or telephone service. The commission has not attempted through this rule to dictate either curtailment priorities or priorities for the restoration of electric or telephone service. The commission specifically solicited comments regarding the impact of the 1990 amendments to the Clean Air Act on these amendments. Some utilities responded by noting that the Clean Air Act amendments would have little effect on this rule. At least one utility noted that it was too soon to tell what impact the amendments would have on sec.23.48. Several telephone utilities submitted comments. AT&T objected to the use of the term "telephone utilities" in the proposed rule. AT&T correctly noted that this term is not defined in the Public Utility Regulatory Act. Therefore, for purposes of this rule, the commission has defined the term telephone utilities. As suggested by AT&T sec.23.48(c)(1) will apply only to local exchange companies. If interexchange companies experience an outage, this in turn will affect local exchange companies. Local exchange companies are in a better position to report how such outages will affect their operations. As such local exchange companies will therefore be required to report outages lasting four or more hours affecting their operations as specified in sec.23.48(c)(1)(A)-(D). The commission notes that while the service interruption provision of sec.23. 48(c)(1) applies only to local exchange companies, the emergency operations plan requirement of 23.48(e)(1) will apply to all dominant telecommunications utilities. No commenter objected to this aspect of the amendments. The commission has added language to sec.23.48(e)(1) to clarify this point. Finally, with respect to emergency operations plans for telephone utilities, AT&T stated that to the extent applicable to interexchange companies, the rule would not require AT&T to adopt a Texas-specific emergency operations plan separate from its national plan already in place. The commission agrees with AT&T's interpretation of the rule. United Telephone Company of Texas, Inc., Southwestern Bell Telephone, and Central Telephone Company of Texas (Centel) all suggested that sec.23.48(c)(1)(D) be amended to require reporting outages affecting 500 or more access lines rather than outages affecting 20% or more of an exchange's access lines. These commenters pointed out that the proposed requirement was unreasonable when applied to small exchanges. In a similar vein, Texas Telephone Association (TTA) also objected to sec.23.48(c)(1)(D) and suggested language which expanded on the percentage approach proposed by the commission. TTA contended that sec.23.48(c)(1) (D) as proposed would require smaller exchanges to report outages affecting as few as six to ten access lines. TTA questioned whether reporting outages affecting so few customers was the intent of the proposal. The commission does not believe that either of the requested changes will solve the problem noted by these commenters. Whether the benchmark for a reportable outage is based on a percentage of an exchange's access lines or a particular number of access lines, there will be room for debate on the equity of the requirements established. The establishment of outage standards is, by necessity, an arbitrary exercise. The commission has attempted to mitigate this problem by establishing a standard which is equally applicable to all local exchange companies. An outage affecting 20% of an exchange's access lines is potentially significant regardless of the number of lines involved. Additionally, the commission notes that TTA's suggestion would be difficult to apply since it would require local exchange companies to maintain an exact count of the number of access lines served. The commission does not anticipate that this requirement will prove unduly burdensome on smaller local exchange companies. The commission believes that sec.23.48(c)(1)(D) as originally proposed provides a fair solution to the problem noted by the commenters. Southwestern Bell also suggested that sec.23.48(e) be clarified to state that only a general description of utilities' emergency operations plans would be made available to the public in order to avoid the possibility of sabotage. TTA expressed similar concerns that only a description of the emergency plans should be made available to the public. The commission agrees and has added language which clarifies this point. Centel disagreed with the requirement of allowing public review of its emergency operations plan. The commission shares Centel's concern, but notes that the rule requires only a general description of the plan to be made available to the public. The commission believes this should alleviate security concerns of utilities with respect to their emergency operations plans. Finally, the commission has added language to sec.23.48(e) to clarify that a utility's emergency operations plan will be made available for inspection by the commission or its staff upon request. The amendments are proposed under Texas Civil Statutes, Article 1446c sec.16 (a) and sec.28(a), which provide the Public Utility Commission of Texas with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction and to require utilities to report to it such information which it considers useful in the administration of the Public Utility Regulatory Act. sec.23.48. Continuity of Service. (a)-(b) (No change.) (c) Report to the commission. (1) Telephone utilities. The following guidelines are a minimum basis for reporting service interruptions. Any report interruption shall state the cause(s) of the interruption. Local exchange companies should use judgment in reporting major outages lasting less than four hours. Local exchange companies shall notify the commission in writing of interruptions in service lasting four or more hours affecting: (A) 50% of the toll circuits serving an exchange; (B) 50% of the extended area service circuits serving an exchange; (C) 50% of a central office; or (D) 20% or more of an exchange's lines. (2) Electric utilities. The commission shall be notified in writing of interruptions in service affecting the entire system or any major division of the system which is owned or operated by the utility lasting more than one hour. The notice shall also state the cause(s) of such interruptions. This subsection applies only to outages occurring within this state. (d) (No change.) (e) Emergency operations plan. By December 31, 1992, and every two years thereafter, each utility shall file with the commission a general description of its emergency operations plan. A general description of the plan shall also be made available at the utility's main office for inspection by the public. A complete copy of the plan shall be made available at the utility's main office for inspection by the commission or its staff upon request. (1) Telephone utilities.-Each emergency plan filed by a dominant telecommunications utility must include, but need not be limited to, the following: (A) a communications plan that describes the procedures for contacting the media, customers, and critical users (including, but not limited to, hospitals, police stations, fire stations, and critical city offices) as soon as reasonably possible either before or at the onset of an emergency. The communications plan should also: (i) address how the utility's telephone system and complaint handling procedures will be augmented during an emergency; (ii) identify key personnel and equipment that will be required to implement the plan when an emergency occurs; (B) priorities for restoration of service. (2) Electric Utilities. Each electric utility's emergency plan must include, but need not be limited to, the following: (A) a description of the registry of customers directly served by the utility with special in-house, major, life-sustaining equipment and the plan to identify and communicate with these customers; (B) a communications plan that describes the procedures for contacting the media and customers and critical loads directly served by the utility (including, but not limited to, hospitals, police stations, fire stations, and critical water and wastewater facilities) as soon as reasonably possible either before or at the onset of an electrical emergency. The communications plan should also address how the utility's telephone system and complaint handling procedures will be augmented during an emergency. Utilities should make every reasonable effort to solicit help from cogenerators during times of generation shortages to prevent interruptions in service; (C) curtailment priorities and procedures for shedding load and rotating black- outs; (D) priorities for restoration of service; (E) a summary of power plant weatherization plans and procedures; and storage capacity. (F) a summary of the utility's alternative fuel and storage capacity. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 6, 1991. TRD-9115525 Mary Ross McDonald Secretary of the Commission Public Utility Commission of Texas Effective date: December 31, 1991 Proposal publication date: June 28, 1991 For further information, please call: (512) 458-0100 TITLE 22. EXAMINING BOARDS Part XVIII. Texas State Board of Podiatry Examiners Chapter 371. Examinations 22 TAC sec.sec.371.1-371.3, 371.5-371.14 The Texas State Board of Podiatry Examiners adopts amendments to sec.sec.371. 1- 373.3 and 371.5-371.14, concerning examinations, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6374). Amendments to these rules were necessary due to new examination requirements. The amendments will require all persons to pass the PMLexis exam before they can apply to take the Texas Boards. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provides the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 2, 1991. TRD-9115503 Janie Alonzo Administrative Technician II Texas State Board of Podiatry Examiners Effective date: December 31, 1991 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-0145 Chapter 373. Identification of Practice 22 TAC sec.sec.373.1, 373.2, 373.6, 373.7 The Texas State Board of Podiatry Examiners adopts the repeal of sec.sec.373.1, 373.2, 373.6, and 373.7, concerning identification of practice, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6377). The board has determined that the sections being repealed in the chapter "Identification of Practice" are no longer needed. The sections being repealed are no longer applicable to the chapter "Identification of Practice." No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 4568(j) and 4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 2, 1991. TRD-9115504 Janie Alonzo Administrative Technician II Texas State Board of Podiatry Examiners Effective date: December 31, 1991 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-0145 22 TAC sec.sec.373.1, 373.2, 373.4, 373.6, 373.7 The Texas State Board of Podiatry Examiners adopts new sec.sec.373.1, 373.1, 373.4, 373.6, and 373.7, concerning identification of practice, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6378). The board anticipates with the adoption of these sections that the recipients of podiatric services will be able to identify the practitioner and the name under which he practices better. The new rules are more precise in that the recipients of podiatric services will be able to identify the practitioner and the name under which he practices. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 2, 1991. TRD-9115505 Janie Alonzo Administrative Technician II Texas State Board of Podiatry Examiners Effective date: December 31, 1991 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-0145 Chapter 375. Rules Governing Conduct 22 TAC sec.375.3 The Texas State Board of Podiatry Examiners adopts an amendment to sec.375.3, concerning rules governing conduct, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6379). The justification for the adoption of the amendment to this section is to better clarify how a podiatrist may advertise. The section will function by instructing the podiatrist what he can and cannot do when advertising his practice. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provides the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 2, 1991. TRD-9115506 Janie Alonzo Administrative Technician II Texas State Board of Podiatry Examiners Effective date: December 31, 1991 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-0145 22 TAC sec.375.12 The Texas State Board of Podiatry Examiners adopts the repeal of sec.375.12, concerning rules governing conduct, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6380). The board has determined that the section being repealed in the chapter "Rules Governing Conduct" is no longer needed. The section being repealed is no longer applicable to the chapter "Rules Governing Conduct." No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e) , which provides the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 2, 1991. TRD-9115507 Janie Alonzo Administrative Technician II Texas State Board of Podiatry Examiners Effective date: December 31, 1991 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-0145 Chapter 376. Violations and Penalties 22 TAC sec.sec.376.1-376.7 The Texas State Board of Podiatry Examiners adopts new sec.sec.376.1-376.7, concerning violations and penalties, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6380). The justification for the adoption of the new sections is that they indicate the types of penalties that can be assessed when a podiatrist is found to be in violation of the Podiatry Practice Act. The new sections will function by setting up what penalties can be assessed when a podiatrist is found to be in violation of the Podiatry Practice Act. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 2, 1991. TRD-9115508 Janie Alonzo Administrative Technician II Texas State Board of Podiatry Examiners Effective date: December 31, 1991 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-0145 Part XXXII. State Committee of Examiners for Speech-Language Pathology and Audiology Chapter 741. Speech-Language Pathologists and Audiologists Subchapter A. Introduction The State Committee of Examiners for Speech-Language Pathology and Audiology (committee), with the approval of the Texas Board of Health, adopts amendments to sec.sec.741.2, 741.12, 741.19, 741.41, 741.61, 741.63, 741.64, 741.81, 741.83, 741.84, 741.102, 741.122, 741.143, 741. 162, 741.163, and 741.181; the repeal of existing sec.741.25 and sec.741.26; and new sec.741.25 and sec.741.26. Sections 741.61, 741.63, 741.64, 741.84, 741.162, 741.163 and 741.181 are adopted with changes to the proposed text as published in the September 3, 1991, issue of the Texas Register (16 TexReg 4799). A correction of error was published in the October 1, 1991, issue of the Texas Register (16 TexReg 5417) for sec.741.64 and sec.741.162. Sections 741.2, 741.12, 741.19, 741.41, 741.81, 741.83, 741.102, 741.122, and 741.143; and repeal of and new sec.741.25 and sec.741.26 are adopted without changes and will not be republished. The sections concern speech-language pathology and audiology, and the purpose of the amendments is to change the amount assessed for late renewal penalty fees; establish requirements to implement legislation passed during the 72nd Legislature, 1991; establish on-site supervision requirements and denial of licenses based on adverse professional competence or conduct in another state; define the 60-day grace period and inactive status; delete unnecessary and obsolete language; and expand, clarify, and reorganize existing sections. The specific function of the amendments is to delete unnecessary language in definitions; allow appointment of non-committee members to subcommittees or ad hoc committees; include dissenting vote on motions in the minutes; establish requirement that supervisors are responsible for services provided by supportive personnel; require submission of college or university transcripts for all applicants when applying for license or intern registration; reorganize and expand intern guidelines to include an update of registration every six months and provide a method to determine if an applicant has sufficient coursework for a dual internship; revise requirements for the licensed associate to require the filing of a supervisory responsibility statement with a change of supervisors, establish requirements for alternate "on-site" supervision, expand supervisory responsibilities, provide a method to allow an unemployed associate to renew or retain a license without a penalty, clarify who may supervise a communication helper and delete obsolete language; clarify that a fee received from an inactive licensee within two years past date of expiration of a license will be considered as an application for renewal and that a licensee may not reapply for license within this period; provide current address and telephone number of Educational Testing Service; establish requirement that an applicant's request for license may be denied based on adverse professional competence or conduct in another state; define time frame of 60-day grace period and inactive status; establish requirement to comply with legislation passed during the 72nd Legislative Session concerning renewal of a license for individuals on active duty with the armed forces serving outside the State of Texas; expand, clarify, and reorganize continuing education requirements to include the number of continuing education hours required to renew or reactivate a license and clarify type of verification form acceptable; change the amount assessed for late renewal penalty fees; remove unnecessary language and equivalency requirement; and make editorial changes throughout these sections. Existing sec.741.25 and sec.741.26 are repealed to allow reorganization of these two sections as new sec.741.25 and sec.741.26. The new sections establish reimbursement for expenses and the policy regarding handicapped or disabled applicants. Concerning sec.741.162, a commenter stated that the recent amendment to the Texas Education Code, sec.57.491, should be included in this section. The amendment requires that beginning September 1, 1991, holders of professional/occupational licenses in Texas who are identified as defaulters on loans guaranteed by the Texas Guaranteed Student Loan Corporation (TGSLC) are not eligible for license renewal until they have entered into a repayment agreement with TGSLC. The committee agrees and has added subsection (a)(3) which includes language to this effect. Concerning sec.741.162(l), a commenter stated that this amendment covers legislation passed during the 72nd Legislative Session and the effective date of the legislation should be included in the subsection. The committee agrees and has made the change. Concerning sec.741.162(l)(6), a commenter stated that this amendment is vague regarding the requirement of additional continuing education hours. Since sec.741. 163 was revised, this section should also be changed to include that revision. The committee agrees and has made the changes. Concerning sec.741.163(1), a commenter asked that the committee define the term "related." The committee agrees and has expanded paragraph (1)(B) to define the term. Concerning sec.741.181, a commenter stated that this section does not state that an examination fee must be paid. The committee agrees and has added paragraph (19) which contains language addressing this concern. The committee also made minor editorial changes to sec. sec.741.61(5), 741.63(c), 741.64(a)(3), 741.64(g)(1), 741.84(g)(1), 741.162(a), and 741.181 for clarification. No groups, agencies, or organizations submitted comments. Individuals who commented were neither for or against the sections in their entirety; however, they had questions, concerns, and recommendations. 25 TAC sec.741.2 The amendment is adopted under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Committee of Examiners for Speech-Language Pathology and Audiology, subject to the approval of the Texas Board of Health, with the authority to adopt rules concerning the licensing and regulation of speech language pathologists and audiologists. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1991. TRD-9115535 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: December 31, 1991 Proposal publication date: September 3, 1991 For further information, please call: (512) 459-2935 Subchapter B. The Committee 22 TAC sec.sec.741.12, 741.19, 741.25, 741.26 The amendments are adopted under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Committee of Examiners for Speech-Language Pathology and Audiology, subject to the approval of the Texas Board of Health, with the authority to adopt rules concerning the licensing and regulation of speech- language pathologists and audiologists. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1991. TRD-9115536 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: December 31, 1991 Proposal publication date: September 3, 1991 For further information, please call: (512) 459-2935 22 TAC sec.741.25, sec.741.26 The repeals are adopted under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Committee of Examiners for Speech-Language Pathology and Audiology, subject to the approval of the Texas Board of Health, with the authority to adopt rules concerning the licensing and regulation of speech language pathologists and audiologists. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1991. TRD-9115537 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: December 31, 1991 Proposal publication date: September 3, 1991 For further information, please call: (512) 459-2935 Subchapter C. The Practice of Speech-Language Pathology and Audiology 25 TAC sec.741.41 The amendment is adopted under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Committee of Examiners for Speech-Language Pathology and Audiology, subject to the approval of the Texas Board of Health, with the authority to adopt rules concerning the licensing and regulation of speech- language pathologists and audiologists. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1991. TRD-9115538 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: December 31, 1991 Proposal publication date: September 3, 1991 For further information, please call: (512) 459-2935 Subchapter D. Academic Requirements for Examination and Licensure for Speech- Language Pathologists 25 TAC sec.sec.741.61, 741.63, 741. 64 The amendments are adopted under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Committee of Examiners for Speech-Language Pathology and Audiology, subject to the approval of the Texas Board of Health, with the authority to adopt rules concerning the licensing and regulation of speech- language pathologists and audiologists. sec.741.61. Purpose. The purpose of this section is to delineate the academic requirements for examination and licensure of speech-language pathologists. (1) An applicant must possess at least a master's degree with a major in speech- language pathology from an accredited or approved college or university. (2) An applicant must submit transcripts showing successful completion of at least 30 semester hours in courses acceptable toward a graduate degree by the college or university in which they were taken. At least 21 graduate hours must be within the professional area of speech-language pathology and at least six graduate hours in audiology. Three semester hours in audiology must be in habilitative or rehabilitative procedures with speech and language problems associated with hearing impairment, and three semester hours must be in the study of the pathologies of the auditory system and assessment of auditory disorders. (3) (No change.) (4) Original transcripts shall be required to process an application for licensure or internship approval. Certified copies of transcripts shall be considered originals. Transcripts shall be reviewed as follows. (A)-(C) (No change.) (D) The committee shall not accept an undergraduate level course taken by an applicant to meet academic requirements for licensure at the graduate level unless the applicant's transcript clearly shows that the course was awarded graduate credit by the college or university from which the graduate degree was granted. (E)-(G) (No change.) (5) An applicant must have completed a minimum of 300 clock hours of supervised clinical experience with individuals who present a variety of communication disorders. (A) Clinical experience may include clinical practicum. (B) Clinical practicum may be considered to be the supervised, direct experience during academic training which includes evaluation and management of individuals with speech, language, and/or hearing problems. (C) This experience must have been obtained within a training institution, or in one of its cooperating programs, under the supervision of an individual holding a valid license to practice speech-language pathology. (D) While pursuing this course of study, the applicant shall be designated as a trainee in speech-language pathology. (6) An applicant must have obtained the equivalent of nine months of full-time, 40 hours weekly, supervised professional experience in which bona fide clinical work has been accomplished in speech-language pathology. (A) While pursuing this professional employment experience, the applicant shall be designated as an intern in speech-language pathology. (B) This internship must begin within two years after the academic and clinical experience requirements have been met and must be completed within a maximum period of 36 consecutive months once initiated. (C) This work must be done under the supervision of an individual who holds a master's degree in speech-language pathology and a valid license to practice speech-language pathology in the State of Texas. (D) Prior to the beginning of an intern's required, supervised professional experience, the intern form must be filed with the executive secretary in the office of the committee. (i) This document is to be completed and signed by the licensed supervising professional and must be updated every six months. (ii) Licensees who supervise interns are responsible for the services to the client that may be performed by the intern. The supervising professional must ensure that all services provided are in compliance with this chapter. (iii) Original transcripts of the intern's college or university course work with verification of degree(s) awarded are required at the time of submission of the intern form. (iv) The committee shall not consider an individual an intern until the intern form is approved. The office must be notified of any change in the supervisory arrangement and a new form must be filed. (v) Until licensed, the intern must continue to be supervised if the intern is practicing speech-language pathology. (vi) Upon acceptance of the intern form, the executive secretary shall provide a letter of registration to be placed in the intern's personnel file. (7) A person who possesses a master's degree with a major in audiology and is pursuing an internship in speech-language pathology may begin this nine month supervised professional experience in accordance with paragraph (6) of this section, if the committee has an original transcript showing completion of a master's degree with a major in audiology on file and a letter from the department head of the college or university stating that the individual has completed enough hours to establish a graduate level major in speech-language pathology. (8) A supervisor of an intern must show proof of having earned at least a master's degree with a major in speech-language pathology from an accredited college or university by submitting an original or photocopy of the transcript. sec.741.63. Special Conditions for Licensure of Speech-Language Pathologists. (a) The committee may waive the examination and grant licensure to a speech- language pathologist who holds a license from another state, provided that the license represents professional standards considered by the committee to be equivalent to those set forth in the Act. The applicant must submit an original college or university transcript of all course work and degrees. (b) The committee may waive the examination and grant licensure to an applicant who holds the Certificate of Clinical Competence of the American Speech- Language-Hearing Association in Speech-Language Pathology. The applicant must submit an original college or university transcript of all course work and degrees. (c) Transcripts shall be reviewed as in sec.741. 61(4) of this title (relating to Purpose). sec.741.64. Requirements for a Licensed Associate in Speech-Language Pathology. (a) The term "associate" will be used to designate an aide who provides services and support of clinical programs of speech-language pathology, who is supervised by a licensed speech-language pathologist, who has received the training specified as follows, and who holds a current and valid license as a licensed associate in speech-language pathology. The following are established as minimum requirements to function as a licensed associate in speech-language pathology: (1) a baccalaureate degree as shown on an original transcript filed with the committee; (2) (No change.) (3) the filing of original transcripts which shall be reviewed as in sec.741.61(4) of this title (relating to Purpose); and (4) a supervisory responsibility statement submitted upon application and each subsequent renewal or with a change of supervisor. (b) Although the supervisor may delegate specific clinical tasks to an associate, the responsibility to the client for all services provided cannot be delegated. The supervisor must ensure that all services provided are in compliance with this chapter. The associate may execute specific components of the clinical speech, language, and/or hearing program if the supervisor determines that the associate has received the training and has the skill to accomplish that task, and the supervisor provides sufficient supervision to ensure appropriate completion of the task assigned to the associate. The supervisor must keep job descriptions and performance records; these must be current and must be made available to the committee within 30 days of the date of the committee's request for such records. (1) Examples of duties which associates may be assigned include the following: (A)-(E) (No change.) (2)-(4) (No change.) (c)-(f) (No change.) (g) Direct supervision of speech-language pathology duties assigned to the associate shall be provided by a licensed speech-language pathologist. A copy of the supervisor's college or university transcript must be filed with the committee at the time the supervisory responsibility statement is filed. (1) Following on-the-job training, the associate's initial client contact shall be directly supervised. Thereafter, the minimum supervision requirements for an associate by the supervisor shall be no less than two hours a week, at least half of which is direct on-site supervision at the location where the associate is employed. If an alternative arrangement is needed, the supervisor must submit a proposed plan for review by the committee or the appropriate subcommittee to determine if the plan is acceptable. Indirect methods of supervision such as audio and/or video tape recording, telephone communication, numerical data, or other means of reporting may be utilized. (2) Supervisory records shall be maintained by the supervisor which verify regularly scheduled monitoring, assessment, and evaluation of associate and client performance. Such documentation may be requested by the committee. (h) (No change.) (i) An associate may renew a license even though the associate does not have a supervisor. However, the associate may not practice until a supervisor is obtained and a new supervisory responsibility statement is approved by the committee office. (j) The requirements and duties of a communication helper are as follows. (1)-(2) (No change.) (3) A communication helper may work under direction of an associate if the associate is supervised as required by subsection (g) of this section. (4)-(5) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1991. TRD-9115539 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: December 31, 1991 Proposal publication date: September 3, 1991 For further information, please call: (512) 459-2935 Subchapter E. Academic Requirements for Examination and Licensure for Audiologists 25 TAC sec.sec.741.81, 741.83, 741.84 The amendments are adopted under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Committee of Examiners for Speech-Language Pathology and Audiology, subject to the approval of the Texas Board of Health, with the authority to adopt rules concerning the licensing and regulation of speech- language pathologists and audiologists. sec.741.84. Requirements for a Licensed Associate in Audiology. (a) The term "associate" will be used to designate an aide who provide services and support of clinical programs of audiology, who is supervised by a licensed audiologist, who has received the training specified as follows, and who holds a current and valid license as a licensed associate in audiology. The following are established as minimum requirements to function as a licensed associate in audiology: (1) a baccalaureate degree as shown on an original transcript; (2) (No change.) (3) the filing of original transcripts which shall be reviewed as in sec.741.81(4) of this title (relating to Purpose); and (4) a supervisory responsibility statement submitted upon application and each subsequent renewal or with a change of supervisor. (b) Although the supervisor may delegate specific clinical tasks to an associate, the responsibility to the client for all services provided cannot be delegated. The supervisor must ensure that all services provided are in compliance with this chapter. The associate may execute specific components of the clinical speech, language, and/or hearing program if the supervisor determines that the associate has received the training and has the skill to accomplish that task, and the supervisor provides sufficient supervision to ensure appropriate completion of the task assigned to the associate. The supervisor must keep job descriptions and performance records; these must be current and must be made available to the committee within 30 days of the date of the committee's request for such records. (1) Examples of duties which associates may be assigned include the following. (A)-(E) (No change.) (2)-(4) (No change.) (c)-(f) (No change.) (g) Direct supervision of audiology duties assigned to the associate shall be provided by a licensed audiologist. A copy of the supervisor's college or university transcript must be filed with the committee at the time the supervisory responsibility statement is filed. (1) Following on-the-job training, the associate's initial client contact shall be directly supervised. Thereafter, the minimum supervision requirements for an associate by the supervisor shall be no less than two hours a week, at least half of which is direct on-site supervision at the location where the associate is employed. If an alternative arrangement is needed, the supervisor must submit a proposed plan for review by the committee or the appropriate subcommittee to determine if the plan is acceptable. Indirect methods of supervision such as audio and/or video tape recording, telephone communication, numerical data, or other means of reporting may be utilized. (2) Supervisory records shall be maintained by the supervisor which verify regularly scheduled monitoring, assessment, and evaluation of associate and client performance. Such documentation may be requested by the committee. (h) (No change.) (i) An associate may renew a license even though the associate does not have a supervisor. However, the associate may not practice until a supervisor is obtained and a new supervisory responsibility statement is approved by the committee office. (j) The requirements and duties of a communication helper are as follows. (1)-(2) (No change.) (3) A communication helper may work under direction of an associate if the associate is supervised as required by subsection (g) of this section. (4)-(5) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1991. TRD-9115540 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: December 31, 1991 Proposal publication date: September 3, 1991 For further information, please call: (512) 459-2935 Subchapter F. Application Procedures 25 TAC sec.741.102 The amendment is adopted under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Committee of Examiners for Speech-Language Pathology and Audiology, subject to the approval of the Texas Board of Health, with the authority to adopt rules concerning the licensing and regulation of speech- language pathologists and audiologists. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1991. TRD-9115541 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: December 31, 1991 Proposal publication date: September 3, 1991 For further information, please call: (512) 459-2935 Subchapter G. Licensure Examinations 25 TAC sec.741.122 The amendment is adopted under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Committee of Examiners for Speech-Language Pathology and Audiology, subject to the approval of the Texas Board of Health, with the authority to adopt rules concerning the licensing and regulation of speech- language pathologists and audiologists. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1991. TRD-9115542 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: December 31, 1991 Proposal publication date: September 3, 1991 For further information, please call: (512) 459-2935 Subchapter H. Licensing 25 TAC sec.741.143 The amendment is adopted under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Committee of Examiners for Speech-Language Pathology and Audiology, subject to the approval of the Texas Board of Health, with the authority to adopt rules concerning the licensing and regulation of speech- language pathologists and audiologists. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1991. TRD-9115543 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: December 31, 1991 Proposal publication date: September 3, 1991 For further information, please call: (512) 459-2935 Subchapter I. License Renewal 25 TAC sec.741.162, sec.741.163 The amendments are adopted under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Committee of Examiners for Speech-Language Pathology and Audiology, subject to the approval of the Texas Board of Health, with the authority to adopt rules concerning the licensing and regulation of speech- languagepathologists and audiologists. sec.741.162. General. (a) Each licensee is responsible for license renewal before the expiration date. The committee shall use the following system for license renewals. (1) (No change.) (2) Each licensee shall annually pay the nonrefundable fee for license renewal. The executive secretary shall not consider a license to be renewed until the completed license renewal form, proof of earned continuing education, and the renewal fee have been mailed to the committee office. The postmarked date is the date of mailing. (3) The committee shall deny renewals pursuant to the Education Code, sec.57.491, relating to defaults on guaranteed student loans. (b) Renewal of a license is contingent on the applicant meeting uniform continuing education requirements established by the committee; however, continuing education hours are not required for the first renewal. Any continuing education hours earned prior to the first renewal date will not accrue under sec.741.163(5) of this title (relating to Requirements for Continuing Professional Education). After a license is renewed for the first time, the licensee must begin earning approved continuing education hours. (c) A 60-day grace period, after the date of expiration of a license, shall be allowed for payment of the renewal fee. A licensee may continue to practice during the grace period and must follow all requirements of the Act and this chapter. (1) If the licensee earned continuing education hours as required by sec.741.163 of this title (relating to Requirements for Continuing Professional Education) prior to expiration of the license, no additional continuing education hours are required for renewal of the license. (2) If the licensee failed to meet the requirement of paragraph (1) of this subsection, the licensee must earn 10, 15 if dual, continuing education hours during the 60-day grace period in order to renew the license during the grace period. (3) If a licensee earned or accrued fewer than the required continuing education hours (10, or 15 if dual) prior to expiration of the license, those hours will not be available for credit for renewal. (4) After expiration of the grace period, the committee may renew each license in accordance with subsection (g) of this section. (d) At least 45 days prior to the expiration date of an individual's license, the executive secretary shall send notice to the licensee of the expiration date of the license, the amount of the renewal fee due, the number of continuing education hours required for renewal, and a license renewal form which the licensee must complete and return to the committee with the required fee. A licensed associate is also required to provide an updated supervisory responsibility statement signed by the associate's current licensed supervisor. (e) The licensee is required to provide current addresses and telephone numbers, employment information, and other information on the license renewal form. The committee is not responsible for lost, misdirected, or undelivered renewal forms and fees if sent to the address last reported to the committee. (f) The committee shall issue a license verification card to a licensee who has met all requirements for renewal. The licensee must display the license verification card with the certificate. (g) At the end of the 60-day grace period, a license will be placed in an inactive status and will remain in this status until renewed or deleted in accordance with this subsection. An inactive licensee may not practice or represent himself or herself as a speech-language pathologist or audiologist. (1) Requests. A licensee may submit, prior to expiration of the 60-day grace period, a written request for inactive status to the committee office specifying the reason for the request. Failure to earn continuing education hours is not an acceptable reason. (2) Penalties upon renewal. (A) If a licensee wishes to reactivate the license at the end of the first or the second year of inactive status, the licensee: (i) must request reactivation in writing prior to the end of the first or second year of inactive status; (ii) must pay a penalty fee as follows: (I) if inactive status was requested under paragraph (1) of this subsection, a penalty fee equal to all accrued renewal fees must be paid; or (II) if inactive status was not requested under paragraph (1) of this subsection, the late renewal penalty fee must be paid; and (iii) must furnish proof of having earned, during the inactive period, at least 10 continuing education hours. Dual licensees must submit proof of having earned, during the inactive period, at least 15 hours of continuing education. A person who has at least 10 continuing education hours, or at least 15 continuing education hours for holders of dual licenses, accrued under sec.741.163(5) of this title (relating to Requirements for Continuing Professional Education) for renewal shall be deemed to have met this requirement. (B) If a licensee chooses to reactivate the license at a time different from the first or second year renewal date, the licensee: (i) must pay the late renewal penalty fee; and (ii) must meet one of the following requirements: (I) if reactivated before the end of the first year, no additional continuing education hours need to be earned if the licensee has completed at least 10 continuing education hours, or at least 15 hours for holders of dual licenses, prior to expiration of the license and could have renewed the license; (II) if reactivated before the end of the first year, no continuing education hours need to be earned if the licensee is reactivating an initial license; (III) if reactivated before the end of the first year and if the licensee has not earned at least 10 continuing education hours, or at least 15 continuing education hours for holders of dual licenses, prior to expiration of the license and could not have renewed the license, the licensee must earn at least 10 continuing education hours, or at least 15 continuing education hours for holders of dual licenses, during the inactive period. The hours must be earned before reactivation will be granted. A person who has accrued at least 10 continuing education hours, or at least 15 continuing education hours for holders of dual licenses, under sec.741.163(5) of this title (relating to Requirements for Continuing Professional Education) for renewal shall be deemed to have met this requirement; or (IV) if reactivated after the end of the first year but before the end of the second year, the licensee must furnish proof of having earned, during the inactive period, at least 10 continuing education hours. Dual licensees must submit proof of having earned, during the inactive period, at least 15 hours of continuing education. A person who has accrued at least 10 continuing education hours, or at least 15 continuing education hours for holders of dual licenses, under sec.741.163(5) of this title (relating to Requirements for Continuing Professional Education) for renewal shall be deemed to have met this requirement. (3) Deleted license following inactive status. A license that is not reactivated within the two year period after expiration may not be renewed, and the license may not be restored, reissued, or reinstated thereafter, but that person may reapply for and obtain a new license if requirements of this Act are met. (h) A suspended license is subject to expiration and may be renewed as provided in this subchapter; however, the renewal does not entitle the licensee to engage in the licensed activity or in any other activity or conduct in violation of the order or judgment by which the license was suspended, until such time as the license is fully reinstated. (i) A license revoked on disciplinary grounds is subject to expiration as provided in the Act, but it may not be renewed. If it is reinstated after its expiration, the licensee, as a condition of reinstatement, shall pay a reinstatement fee in an amount equal to the renewal fee in effect, plus the delinquency fee, if any, accrued at the time of the license revocation. (j) If an individual allows his or her license to expire and that individual applies for licensure between the date of expiration of his or her license and two years after the date of expiration, the application for licensure shall be an application for renewal under subsection (g)(2) of this section. (k) An individual who fails to renew a license within two years after the date of its expiration may not renew it, and it may not be restored, reissued, or reinstated thereafter. That individual must apply for a new license and meet the criteria for licensure current at that time. (l) If a licensee fails to timely renew his or her license on or after August 1, 1990, because the licensee is or was on active duty with the armed forces of the United States of America serving outside the State of Texas, the licensee may renew the license pursuant to this subsection. (1) Renewal of the license may be requested by the licensee, the licensee's spouse, or an individual having power of attorney from the licensee. The renewal form shall include a current address and telephone number for the individual requesting the renewal. (2) Renewal may be requested before or after expiration of the license. (3) A copy of the official orders or other official military documentation showing that the licensee is or was on active duty serving outside the State of Texas shall be filed with the committee along with the renewal form. (4) A copy of the power of attorney from the licensee shall be filed with the committee along with the renewal form if the individual having the power of attorney executes any of the documents required in this subsection. (5) A licensee renewing under this subsection shall pay the applicable renewal fee, but not the reinstatement fee or any penalty fee. (6) A licensee renewing under this subsection shall submit proof of any clock hours of continuing education earned prior to being called to active duty serving outside the State of Texas, and no further continuing education hours shall be required for renewal. sec.741.163. Requirements for Continuing Professional Education. Continuing professional education requirements must be met for renewal of license. (1) Continuing professional education in speech-language pathology and audiology consists of a series of planned individual learning experiences beyond the basic educational program which has led to a degree or qualifies one for licensure. (A) Continuing professional education must be in the following areas: (i) basic communication processes; (ii) speech-language pathology; (iii) audiology; or (iv) an area of study related to clauses (i), (ii), or (iii) of this subparagraph. (B) Continuing education hours under subparagraph (A)(iv) shall be considered if the licensee submits a description of the continuing education activity. Review by the committee or the appropriate subcommittee to determine that the activity is in a related area may require the submission of additional information. Any continuing education hours earned in a related area must further the knowledge of speech-language pathology or audiology or enhance service delivery. Prior approval may be requested. (2)-(3) (No change.) (4) Ten clock hours (one SAW) will be required for yearly renewal; provided, however, 15 clock hours (1.5 CEUs) will be required for holders of dual licenses. (5) (No change.) (6) If a licensee successfully completes course work from an accredited college or university, that course work may be accepted for continuing education credit. The licensee must submit an original transcript and complete a statement that this was a continuing education experience. Ten continuing education clock hours or one continuing education unit equals one semester hour of course work. (7)-(8) (No change.) (9) The committee will provide a list of approved continuing education sponsors which will be revised and updated periodically. Approved sponsors will be designated by the committee. Any continuing education activity must be provided by an approved sponsor. (10) The committee office will accept a letter or form bearing a valid signature or verification as authorized by the continuing education sponsor as proof of completion of a valid continuing education experience. Unauthorized signatures or verification will not be accepted. (11) Evidence of the acquisition of continuing education credit shall be submitted to the committee together with the license renewal form and fee at the time of renewal. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1991. TRD-9115544 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: December 31, 1991 Proposal publication date: September 3, 1991 For further information, please call: (512) 459-2935 Subchapter J. Fees and Late Renewal Penalties 25 TAC sec.741.181 The amendment is adopted under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Committee of Examiners for Speech-Language Pathology and Audiology, subject to the approval of the Texas Board of Health, with the authority to adopt rules concerning the licensing and regulation of speech- languagepathologists and audiologists. sec.741.181. Schedule of Fees and Late Renewal Penalties. The purpose of this section is to establish a schedule of fees and penalties to provide the funds to support the activities of the committee as follows: (1)-(16) (No change.) (17) late renewal penalty-$50 (if renewing from end of the 60-day grace period to the first renewal date after expiration) or $100 (if renewing after first renewal date until second renewal date after expiration) plus all accrued renewal fees; (18) any licensee attaining the age of 65 years shall have their license renewal fee waived; and (19) examination fee-the amount charged pursuant to the current contract between the committee and the department's designee administering the examination. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1991. TRD-9115545 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: December 31, 1991 Proposal publication date: September 3, 1991 For further information, please call: (512) 459-2935 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 31. Special Supplemental Food Program for Women, Infants and Children (WIC) 25 TAC sec.31.2, sec.31.3 The Texas Department of Health (department) adopts under federal mandate amendments to sec.31.2 and sec.31.3, concerning the Special Supplemental Food Program for Women, Infants, and Children (WIC). Section 31.2 adopts by reference the WIC State Plan of Operations and sec.31.3 adopts by reference the WIC Policy and Procedure Manual. The amendments modify the text of the sections and also the materials which are adopted by reference in each section. Concerning the amendment to sec.31.2, federal regulations in Title 7, Code of Federal Regulations, Part 246, require the United States Department of Agriculture (USDA) to approve an annual update of the WIC State Plan of Operations. The amendment covers the annual update for the fiscal year 1992 which was approved by the USDA effective October 1, 1991. The update covers the outline of the state agency's goals and objectives for improving program operations; the affirmative action plan; and local agency identification-WIC project information. Concerning the amendment to sec.31.3, the Policy and Procedure Manual complements the WIC State Plan of Operations. The Manual incorporates all of the requirements of the federal regulations and federal management circulars into state policies and procedures. This manual is provided to and serves as the operating manual for the local health agencies which are under contract with the department to provide WIC services. The changes to the manual become effective when the federal regulations and federal circulars become effective and are incorporated into policies that are approved by USDA. The latest federal requirements which are being incorporated into the Policy and Procedure Manual by the amendment to sec.31.3 became effective on October 1, 1991, and cover criteria for identifying nutritional risk conditions, the nutrition education plan, and administrative disqualification/termination of vendors. The amendments are adopted under federal mandate for the following reasons. Under federal and state enabling legislation (The Federal Child Nutrition Act of 1966, Title 42, United States Code, sec.1786; and the Texas Omnibus Hunger Act of 1985, Acts 1985, 69th Legislature, Chapter 150, Title II), the WIC program is 96% federally funded and governed by federal regulations. Funds are made available to the department by federal grant. The federal statute (42 United States Code sec.1786), federal regulations (7 Code of Federal Regulation Part 246) , and the federal grant (Federal-State Special Supplemental Food Program Agreement) authorize the USDA to make the funds available to the department to administer the WIC Program in the State of Texas, provided that the department administers the program in accordance with the federal regulations. Therefore, the department under federal mandate adopts the amendments effective on October 1, 1991. The amendments are adopted under the following statutes and regulations which provide the Board of Health with the authority to adopt rules covering the Special Supplemental Food Program for Women, Infants, and Children: Texas Health and Safety Code, sec.12.001; the Texas Omnibus Hunger Act of 1985, Acts 1985, 69th Legislature, Chapter 150, Title II; Texas Human Resources Code, Chapter 33; the Child Nutrition Act of 1966, Title 42, United States Code, sec.1786; the Commodity Distribution Reforms Act and WIC amendments of 1987 (Public Law 100- 237); and Title 7, Code of Federal Regulations, Part 246. sec.31.2. WIC State Plan of Operations. (a) The Texas Department of Health adopts by reference the United States Department of Agriculture regulations on the Special Supplemental Food Program for Women, Infants, and Children (WIC). The regulations are contained in the Federal Register publication titled, "Special Supplemental Food Program for Women, Infants, and Children" dated February 13, 1985, as amended in October, 1991. (b) (No change.) sec.31.3. WIC Policy and Procedure Manual. (a) The Texas Department of Health (department) adopts by reference the publication titled, "WIC Policy and Procedure Manual", as amended in October, 1991. This policy and procedure manual has been developed by the department's WIC Program and approved by the United State Department of Agriculture. (b) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1991. TRD-9115533 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: October 1, 1991 For further information, please call: (512) 458-7444 Chapter 37. Maternal and Child Health Services. Medicaid Case Management Services for High Risk Pregnant Women and High Risk Infants. 25 TAC sec.sec.37.81-37.86 The Texas Department of Health (department) adopts new sec.sec.37.81-37.86 concerning Medicaid Case Management Services for High Risk Pregnant Women and High Risk Infants, with changes to the proposed text as published in the October 8, 1991, issue of the Texas Register (16 TexReg 5549). The new sections cover medicaid case management services for high risk pregnant women and high risk infants, and implement the provisions of 71st Legislature, 1989. Senate Bill 1678 amends the Human Resources Code, sec.22.0031, by requiring the Texas Department of Human Services (TDHS) to develop a program for the case management of high risk pregnant women and high risk infants. The department has coordinated with the TDHS on the development of such a case management program. To be eligible to apply to TDHS to be enrolled as a Medicaid case management provider, the applicant must first be approved by the department. Once approved by the department, provider applications will be forwarded to TDHS to initiate the enrollment process. The new sections describe the department's approval process and cover definitions, a description of case management services, provider qualifications, the application and review process, and documents adopted by reference. The following comments were received concerning the proposed new sections. Comment: Concerning sec.37.82 on the definition of an applicant, a commenter suggested that the definition of an applicant be expanded to include hospitals and physicians. Response: The department disagrees because the definition states that it is not limited to the organizations listed; therefore, their participation is implied if they can meet the qualifications for a community-based case management program. Comment: Concerning sec.37.82 on definitions, a commenter suggested that a definition of case management be added. Response: The department agrees and has added the definition. Comment: Concerning sec.37.82 on definitions, a commenter suggested that the department assure comprehensive case management services for the individual and the family. Response: The department agrees and has included family needs in the definition of case management. Comment: Concerning sec.37.82 on the definition of a case management contact, a commenter suggested a change in the wording to more clearly define what constitutes a case management contact. Response: The department agrees and has changed the wording in the definition of a case management contact to make it more clear. Comment: Concerning sec.37.82 on the definition of case management services, a commenter suggested that nutritional services be added to the list of case management services. Response: The department agrees and has added nutritional services to the list. Comment: Concerning sec.37.82 on the definition of a case manager, a commenter suggested adding academic requirements to the definition. Response: The department disagrees since academic requirements are implied for licensure or certification in this State. Comment: Concerning sec.37.82 on the definition of a case manager, a commenter suggested that social workers who have not been certified be included as a case management provider if that social worker functions under the supervision of a certified social worker. Response: The department disagrees since certification, like registered nurse licensure, implies professional competency. Comment: Concerning sec.37.82 on the definition of community based, several commenters suggested that community based services can be provided in the home. Response: The department agrees and has added the individual's home to the definition of community based. Comment: Concerning sec.37.82, a commenter suggested adding a definition of a family. Response: The department agrees and has added the definition of a family. Comment: Concerning sec.37.82 on outreach activities, a commenter suggested adding the word "solicit" to the definition. Response: The department disagrees since it may imply coercion. Comment: Concerning sec.37.82 on the definition of preventive services, several comments suggested that family planning and women, infants and children (WIC) services be added to the list of preventive services. Response: The department agrees that family planning should be added to the list. The department disagrees that WIC should be added since there are health- related eligibility requirements for WIC services. However, the department has added nutritional supplementation to the list which may include WIC services. Comment: Concerning sec.37.82 on the definition of primary services, a commenter suggested a minor change in the wording to more clearly define primary services. Response: The department agrees and has made the change. Comment: Concerning sec.37.82 on tertiary services, a commenter suggested a minor change in the wording to more clearly define tertiary services. Response: The department agrees and has made the change. Comment: Concerning sec.37.83 on the description of case management services, a commenter suggested adding nutritional and developmental services to the list. Response: The department agrees and has added both nutritional and developmental services. Comment: Concerning sec.37.83 on the description of case management services, a commenter suggested reordering the sentences and eliminating redundant language in order to provide clarity. Response: The department agrees and has made the changes to make the description of case management services more clear. Comment: Concerning sec.37.83 on the description of case management services and the frequency of case management contacts, a commenter suggested adding the family's needs in determining the frequency of case management contacts. Response: The department agrees and has added the family's needs as a determining factor for the frequency of case management contacts. Comment: Concerning sec.37.83 on the description of case management services, a commenter suggested changing the monitoring schedule to schedules recommended in this section as a way of clarifying the frequency of case management contacts. Response: The department agrees and has made the change. Comment: Concerning sec.37.83 on the description of case management services, a commenter suggested that proposed paragraphs (1)-(7) be similarly presented to include statements about schedule(s) for service(s) and whether all, some, or none of the services are billable as case management contacts. Response: The department agrees and has added language concerning appropriate billable services. Comment: Concerning sec.37.83 on the purpose of case management services, a commenter suggested a change in the purpose to include the improvement of the health and well being of mothers and children through preventive and comprehensive care. Response: The department agrees and has added the appropriate language. Comment: Concerning sec.37.83 on the initial intake, a commenter suggested adding the words preliminary needs assessment to differentiate the initial intake from the comprehensive needs assessment. Response: The department agrees and has added the appropriate words. Comment: Concerning sec.37.83 on the comprehensive needs assessment, a commenter suggested adding a home visit in order to assess the physical and social environment for consideration in developing the service plan. Response: The department agrees and has added the provision. Comment: Concerning sec.37.83 on the comprehensive needs assessment and reassessment, a commenter suggested that a minimum of two home visits be required. Response: The department disagrees and has left the necessity of a home visit to the provider's discretion. Comment: Concerning sec.37.83 (3) and (4) on the service plan development and documentation, a commenter suggested combining the two paragraphs into paragraph (3) and appropriately renumbering the remaining paragraphs. Response: The department agrees and has made the necessary changes to combine the service plan development and documentation into paragraph (3), now titled, "Service plan." Comment: Concerning sec.37.83 on the service plan, a commenter suggested adding the requirement that the service plan is developed in a face-to-face contact. Response: The department agrees and has added the requirement. Comment: Concerning sec.37.83 on the service plan, a commenter expressed concern that there is a requirement that the family would unnecessarily have to return for visits when the services could be done the same day. Response: The department agrees and has added that when more than one service can occur at the same encounter, it is expected that each service be completed at the same encounter and billed as a single contact. Comment: Concerning sec.37.83 on monitoring, a commenter suggested changing the order and suggested other grammatical modifications for clarity. Response: The department agrees and has made the modifications, changed the order, and renumbered accordingly. Comment: Concerning sec.37.84 regarding provider qualifications, several comments were received concerning applicants participating in case management service provision without adequate coordination of services, i.e. duplication of service. Response: The department agrees and has added, to the application process, the requirement that the applicant define the scope of case management services as it relates to other case management providers within their service area. Comment: Concerning sec.37.84 on provider qualification, a commenter suggested putting limitations on who is eligible to become a provider. Response: The department disagrees because anyone who meets the case management provider requirements may apply to be a provider. Comment: Concerning sec.37.84 on provider qualifications, a commenter suggested removing the word "designated" as it implies lock-in or no freedom of choice. Response: The department agrees and has removed the word "designated." Comment: Concerning sec.37.84, a commenter suggested adding language regarding the referral of patients not eligible or no longer eligible for Medicaid case management services. Response: The department agrees and has added the statement that patients not eligible or no longer eligible for medicaid case management services must be referred to an appropriate provider if the applicant does not provide these services. Comment: Concerning sec.37.84 and sec.37.86 on the term "case management standards," a commenter suggested changing the word "standards" to "guidelines", as standards connote an absolute, and guidelines imply more flexibility in implementation. Response: The department agrees and has changed the term "case management standards" to "case management guidelines". In addition to the previously mentioned changes, the department has made a number of editorial changes for the purpose of clarification in sec.sec.37.81, 37.82, 37.83, and 37.84. Comments were received from the department's Maternal and Child Health Advisory Committee and Texas Tech Health Sciences Center in Amarillo. The commenters were neither for or against the sections in their entirety; however, as previously stated, they had questions and concerns and offered suggestions regarding changes. The new sections are being adopted under the Human Resources Code, sec.22.0031, which authorizes the Department of Human Services to enter into contracts with appropriate entities, such as the Department of Health, to conduct a program of case management for high risk pregnant women and high risk infants; the Health and Safety Code, Chapter 32, the State Appropriations Act, and Social Security Act, Title V, which provide the Department of Health with authority to provide services to women and infants; and the Health and Safety Code, sec.12.001, which provides the Board of Health with authority to adopt rules to implement Texas Department of Health duties and functions. The new sections will affect sec.22. 0031 of the Human Resources Code. sec.37.81. Introduction. The purpose of these sections is to establish criteria and procedures which the Texas Department of Health (department) will follow concerning Medicaid case management for high risk pregnant women and high risk infants. Federal law (Social Security Act, Title XIX) authorizes states to provide case management as a distinct service under the Medicaid program. Case management services may be targeted to specific populations. Also, Senate Bill 1678, 71st Legislature, 1989, requires the Texas Department of Human Services (TDHS), the single state agency responsible for the administration of the Medicaid program in Texas, to establish a program for the case management of high risk pregnant women and high risk infants to age one and to contract with other public entities to implement the program. The department and TDHS have entered into such a contract agreement. The department provies health services to women and children in Texas under authority of the Health and afety Code, Chapter 32. The State Appropriations Act; and the Social Security Act, Title V. To be eligible to apply to TDHS to be enrolled as a Medicaid case management provider, the applicant must first be approved by the department. Once approved, their application will be forwarded to TDHS to initiate the enrollment process. These sections cover definitions, case management services, provider qualifications, the application and review process and documents adopted by reference. sec.37.82. Definitions. The following words and terms, when used in this undesignated head, shall have the following meanings, unless the context clearly indicates otherwise. Applicant-An agency, organization, or individual applying to the Texas Department of Health (department) to provide case management services which includes, but is not limited to, local health departments, community health centers, public health regions, contractors with the early childhood intervention (ECI) program, contractors with the chronically ill and disabled children's (CIDC) program, medical schools, and contractors with the department currently providing community-based case management services. Application process -An application and instructions issued by the department to potential applicants for approval to deliver case management services and the ensuing review and disposition of the application. Board-The Texas Board of Health. Case management -An assessment of an individual's/family's overall service needs and the development, implementation, and monitoring of a plan for meeting those needs. Case management contact-A face-to-face or telephone contact by a case manager with an eligible individual or parent(s) (in the case of an infant), that must include at least an assessment or reassessment of an individual's needs, an evaluation of progress in meeting those needs, and the development or modification of plans to meet unmet needs. Case management provider-An applicant approved by the department who meets the provider requirements outlined in these sections. Case management services-Services which will assist eligible individuals to access and utilize needed medical, nutritional, social, educational, developmental, and other health services. Case manager-A registered nurse licensed to practice nursing in Texas with a minimum of one year of experience in community health nursing or a social worker certified in Texas with a minimum of one year experience in health and/or human services. CIDC-The Chronically Ill and Disabled Children's Program. Commissioner-The Commissioner of Health. Community-based-Case management services that are to be provided in or near the individual's/family's community and/or home, and not be solely based in an institution. Community education -The provision of public information regarding the availability and the importance of case management services, medical services, and other health and human services. Community health nursing-Services provided by a registered nurse in an agency such as a health department, a regional health clinic, a community health center, or a school, and to individuals, families, and the community which include health promotion, health maintenance, health education, and the prevention and early detection of disease. Department-The Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. ECI-The Early Childhood Intervention Program. Eligible individual -An individual eligible for case management services under these sections. An eligible individual must be: (A) a pregnant woman who meets one or more of the criteria for high risk pregnant women, as described in sec.37.86 of this title (relating to Documents Adopted by Reference). Eligibility continues through the 59th day postpartum; or (B) an infant (a child less than 365 days of age) who meets one or more of the criteria for high risk infants, as described in sec.37.86; and (C) enrolled as a Medicaid recipient. Family-A basic unit in society having as its nucleus one or more adults living together and cooperating in the care and rearing of their own or adopted children, or a person or persons acting as the family of an individual, a foster family, or identifiable support person(s). Health care provider-A provider of preventive, primary, and/or tertiary medical services, as these terms are defined in sec.37.82 of this title (relating to Definitions). High risk infant -A child under the age of one year who meets one or more of the criteria as described in sec.37.86. High risk pregnant woman-A pregnant woman who meets one or more of the criteria as described in sec.37.86. Outreach activities -Activities designed to inform potential eligible individuals of the availability and the importance of case management, medical services, and other health and human services. Parent-A parent, a legal guardian, a person acting as a parent of surrogate parent, or a representative of the Texas Department of Human Services (TDHS) when the child is under managing conservatorship of TDHS. Preventive services -Services that include health counseling and education, immunizations, wellness care, nutritional supplementation, family planning, and screening. Primary services -Services that include care for minor illnesses and injuries, and abnormalities found through screening. Region-A public health region of the Texas Department of Health. State-The State of Texas. Tertiary services -Services that include care for major illnesses and injuries, and chronic or disabling conditions. WIC-The department's Women, Infant, and Children's Nutrition Program. sec.37.83. Case Management Services. (a) Case management services are provided to assist eligible individuals, as defined in sec.37.82 of this title (relating to Definitions), to access and utilize needed medical, nutritional, social, educational, developmental, and other appropriate health services. The purposes of these services are to improve the health and well-being of mothers and children through preventive and comprehensive care in order to reduce morbidity and mortality of pregnant women and infants, to encourage the use of cost-effective medical care, and to discourage over-utilization and duplication of costly services. (b) Case management is a dynamic and ongoing process which involves case managers and other personnel in a number of activities. For the purposes of these sections, not all of these activities are billable. The only activities which are billable are reasonably spaced case management contacts provided by case managers to an eligible individual as defined in sec.37.82 and this section. The frequency of case management contacts will vary according to the individual's/family's needs, but in general should occur in accordance with the schedule(s) recommended in sec.37.83 of this title (relating to Case Management Services). The case management services system includes the following. (1) Initial in-take. The initial in-take consists of the initial contact with the individual, or parent(s) in the case of an infant, to conduct a risk assessment to include a preliminary needs assessment in order to evaluate an individual's eligibility and need for health care and case management services and whether or not a particular individual or parent(s) desires to receive case management services. This process is to be documented in writing. The initial in-take conducted by the case manager with the individual/parent(s) is a billable case management contact. (2) Comprehensive needs assessment. A formal, written, comprehensive needs assessment is developed by the case manager in a face-to- face interview with the eligible individual or parent(s). The process includes a review of formal evaluations performed by other professionals. The case manager may need to make a home visit in order to assess the physical and social environment for consideration in developing the service plan. The comprehensive needs assessment conducted by the case manager with the individual/parent(s) is a billable case management contact. At a minimum, the assessment must include: (A) medical needs; (B) social/family needs; (C) nutritional needs; (D) educational and vocational needs; (E) developmental needs (for infants); and (F) health care transportation needs. (3) Service plan. A formal, written, comprehensive service plan shall be developed by the case manager in a face-to-face contact with the eligible individual or parent(s). The service plan development by the case manager with the individual/parent(s) is a billable case management contact. When more than one of these services (initial assessment, comprehensive needs assessment and/or service plan development) can occur at the same encounter, it is expected that they be completed at that encounter and billed as a single contact. The service plan must: (A) address the specific needs of the individual/family as identified in the comprehensive needs assessment; (B) establish priorities among the needs identified and document a procedure formulated to address those needs; (C) outline the responsibilities of the case manager, the individual, appropriate family members, and other pertinent persons; (D) provide eligible individuals or their parent(s) with information and direction that will enable them to successfully access and utilize the needed services identified by the plan; and (E) must include, at a minimum, documentation of: (i) the persons involved in the development of the service plan; (ii) measurable goals to be achieved through the provision of services; (iii) all services to be provided, including medical, nutritional, social, educational, developmental, health care, transportation, and other appropriate services; (iv) referral to other programs including WIC; and (v) schedules for the case manager to monitor the service plan and to perform a formal reassessment. (4) Service plan implementation. Through negotiation, the case manager shall assist the individual and the service provider(s) in planning and program development that will meet the needs of high risk pregnant women and/or high risk infants. The case manager will arrange for the delivery of appropriate services to the individual based on the formal needs assessment. Service implementation may involve telephone calls, face-to-face contacts and home visits the case manager, a designated assistant to the case manager, or other health care provider. Activities conducted to implement the service plan will be documented in writing. Only telephone or face-to-face contacts provided by the case manager to the individual and/or parent(s) as defined in sec.37.82 will constitute a billable case management contact. (5) Monitoring. Monitoring may involve telephone calls, face-to-face encounters, and/or home visits by the case manager, a designated assistant to the case manager, or other health care provider. Each monitoring encounter, whether face-to-face or by telephone, must be documented in writing. Only face- to-face or telephone contacts between the case manager and the individual or parent(s) will constitute a billable case management contact as defined in sec.37.82. (A) The case manager will monitor the service plan to determine: (i) what services have or have not been delivered; (ii) whether the services were delivered as scheduled; (iii) whether the services were consistent with the individual's service plan; and (iv) whether modifications to the service plan or a change of service provider(s) are required. (B) The recommended schedule, unless modified for an individual's need(s) is: (i) for pregnant women: (I) monthly during pregnancy; (II) within five days postpartum; and (III) within one month postpartum; and (ii) for infants: (I) one contact during the first two weeks after hospital discharge; and (II) monthly thereafter. (6) Reassessment. A formal reassessment of the individual's needs and progress must be conducted by the case manager with the individual/parent(s) and must be documented in writing. At the reassessment, the case manager and the individual/parent(s) will determine if modifications to the service plan are necessary and if the level of involvement by the case manager should be adjusted. Reassessment will also include determining whether or not case management services need to be continued. Following initial assessment, reassessment must occur at least once during pregnancy and once during the first year of the infant's life. A reassessment conducted by the case manager with the individual/parent(s) is a billable case management contact. sec.37.84. Provider Qualifications. The case management provider must meet the following requirements established by the Texas Department of Health (department) in order to become a provider of Medicaid case management services for high risk pregnant women and/or high risk infants. The applicant must: (1) meet applicable state and federal laws governing the participation of providers in the Medicaid program; (2) agree to sign a Medicaid provider agreement with the single state agency (Texas Department of Human Services); (3) be a provider of health services to women of child bearing age and/or children, with evidence of referral relationships with preventive, primary, and tertiary care providers, agencies, or centers within the nearest geographic area and must: (A) provide information regarding the health services which they provide and how long they have been providing them; (B) develop and/or maintain a comprehensive referral resource directory which contains the names, addresses, and telephone numbers of referral providers of health and human services including, but not limited to: WIC, family planning, prenatal services, child health services, ECI, CIDC, primary care, physicians, hospitals, etc.; (C) make available a copy of this directory upon request; (D) submit with the application, a plan for updating the directory on a regular basis; and (E) submit copies of referral agreements with other agencies/providers with the application; (4) be able to participate in the case management system for women of child bearing age, infants, and children with medically at risk or diagnosed conditions and must: (A) develop and maintain a case management program which assists eligible individuals to access and utilize needed medical, social, educational, nutritional, transportation and other health and human services; (B) incorporate an evaluation component into the program which assesses the health outcomes of high risk pregnant women and/or high risk infants; (C) determine, when the individual or family needs extend beyond a single program or service, which case manager will assume the comprehensive case management role for meeting those needs; and (D) refer individual(s) not eligible or no longer eligible for Medicaid case management services to appropriate providers, if applicant does not provide these services; (5) have the ability to participate in the regional case management system, that is, participate with area regional and local health departments, other area case management providers, and the department so that appropriate referral and tracking of clients occurs and must: (A) develop and maintain a case management system in cooperation and coordination with local health departments, the public health region and other case management providers; (B) submit with the application, letters of agreement which define the scope of case management services of each entity; (C) participate in at least two regional case management meetings a year; (D) report to the department, through the region, problems in implementing case management services; (E) agree to comply with data collection requirements established by the department; and (F) share information with the department for referral and tracking of individuals; (6) have a case management system which is community based as evidenced by outreach activities, home visits, the provision of community education, and utilization of qualified local health education programs and must: (A) provide services in a location convenient to the individual which may be in the individual's home; (B) provide information regarding locations of case management service delivery; and (C) submit requested reports to the department which detail outreach activities and community education offerings; (7) have a case management system which utilizes registered nurses and/or social workers as case managers and must: (A) employ registered nurses and/or social workers who must meet, at a minimum, the case manager qualifications as outlined in these rules; (B) submit the type and number of staff employed who will be performing case management services; and (C) assure that the case managers: (i) complete an orientation program provided by the department within 90 days of the approval of the application, or within 90 days of employment for new case managers; (ii) assume responsibility for all case management services provided to eligible individuals; (8) have a case management system which reduces barriers to service for eligible individuals by: (A) providing assistance in: (i) completing applications; and (iii) arranging for transportation for health care services, etc.; and (B) employing a sufficient number of staff available to assist eligible individuals to access health and human services according to the number of eligible individuals that the applicant is proposing to serve; (9) comply with all department and TDHS reporting requirements, including participation in cost studies and must: (A) agree to submit all data required by TDH and TDHS; (B) submit the HCFA 1500 billing form to the agent of the TDHS within the required time period; and (C) participate in cost studies; (10) agree to monitoring and evaluation reviews by the department and TDHS which will be used to determine the applicant's continued participation as a case management provider; and (11) implement and maintain service standards and procedures to ensure that case management services are: (A) provided through an identifiable component of an organization that is vested with responsibility to provide case management services; and (B) delivered through a system which is based on the department's written guidelines for case management,and standards for maternity, child health, and family planning services. sec.37.85. Application and Review Process. The application and review process is as follows. (1) Applications to become a Medicaid case management provider for high risk pregnant women and/or high risk infants may be obtained by contacting the Texas Department of Health, Bureau of Maternal and Child Health, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7700. (2) Applications are to be typed and must be accompanied by all required supporting documentation. An original and one copy of the application are to be submitted to the Bureau of Maternal and Child Health at the address described in paragraph (1) of this section. (3) Incomplete applications will not be considered and will be returned to the applicant. (4) All complete applications will be reviewed by department staff. The review process will be completed within 45 days following receipt of a completed application. (5) Applicants meeting all provider requirements will be approved by the department. Approved applicants will be notified in writing by the department, and the applications will then be forwarded to TDHS to initiate the enrollment process. (6) Applicants who are disapproved will be given written notification of the reasons for disapproval. (7) An applicant who has been disapproved by the department may appeal the decision by submitting a revised application which addresses the findings noted in their disapproval notice. The revised application is to be submitted to the Bureau of Maternal and Child Health, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7700. The applicant will be notified in writing of the department's decision. sec.37.86. Documents Adopted by Reference. (a) The department adopts by reference the following department publications: (1) High Risk Conditions for Pregnant Women and Infants for Case Management; (2) Provider Application; (3) Maternity, Family Planning, and Child Health Standards; and (4) Case Management Guidelines for Women and Children. (b) Copies may be obtained from the Texas Department of Health, Bureau of Maternal and Child Health, 1100 West 49th Street, Austin, Texas 78756, and are available for public inspection during regular working hours. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1991. TRD-9115534 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: December 31, 1991 Proposal publication date: October 8, 1991 For further information, please call: (512) 458-7700 Chapter 98. HIV and STD Control Subchapter A. Texas HIV Services Grant Program General Provisions The Texas Department of Health (department) adopts the repeal of existing sec.98.7 and sec.98.9, and adopts new sec.98.7, concerning the Texas HIV Services Grant Program; and adopts the repeal of existing sec.98.67 and sec.98.69, and adopts new sec.98.67, concerning the HIV Education Grant Program. New sec.98.7 and sec.98.67 are adopted with changes to the proposed text as published in the October 8, 1991 issue of the Texas Register (16 TexReg 5552). Repealed sec.sec.98.7, 98.9, 98.67, and 98.69, are adopted without changes and will not be republished. The repeals and new sections update, clarify, and consolidate the provisions concerning the advisory committees. New sec.98.7 replaces existing sec.98.7 and sec.98.9 by consolidating into one section the purposes, functions, membership, terms of office, procedures, and recommendations of the State HIV Services Advisory Committee. Likewise, new sec.98.67 replaces existing sec.98.67 and sec.98. 69 by consolidating into one section the purposes, functions, membership, terms of office, procedures, and recommendations of the State HIV Education, Prevention, and Risk Reduction Advisory Committee. In addition, one of the membership requirments for the State HIV Education, Prevention anbd Risk Reduction Advisory Committee has been modified. Concerning sec.98.67(d)(3), the department received one comment which was that the Windham School System is not located in Windham. Instead, the Windham School System is the school district for the Texas Department of Criminal Justice, and its administrative offices are located in Huntsville. The department agrees with the comment and has clarified sec.98.67(d)(3) accordingly. In addition, the department has made editorial changes to sec.98.7(c) for clarification purposes. 25 TAC sec.98.7, sec.98.9 The repealed sections are being adopted under the Health and Safety Code (code), sec.sec.85.031-85.044, which provides the Board of Health with the authority to establish an advisory committee to assist the board in the implementation of the state HIV Services Grant Program and the HIV Education Grant Program; sec.11.016, which provides the Board of Health with the authority to appoint advisory committees; and sec.12.001, which provides the board with the authority to adopt rules to implement its duties. The repeal and new sections will affect the Code, sec.85.044. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1991. TRD-9115529 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: December 31, 1991 Proposal publication date: October 8, 1991 For further information, please call: (512) 458-7463 25 TAC sec.98.7 The new section is adopted under the Health and Safety Code (code), sec.sec.85.031-85.044, which provides the Texas Board of Health with the authority to establish an advisory committee to assist the board in the implementation of the state HIV Services Grant Program and the HIV Education Grant Program; sec.11.016, which provides the Texas Board of Health with the authority to appoint advisory committees; and sec.12.001, which provides the board with the authority to adopt rules to implement its duties. The repeal and new sections will affect sec.85.044 of the code. sec.98.7 HIV Services Advisory Committee. (a) Purpose. The HIV Services Advisory Committee (committee) is created for the purpose of advising and assisting the Texas Board of Health (board) and the Texas Department of Health (department) in planning and administering a comprehensive system of AIDS/HIV services in the state of Texas. (b) Committee responsibilities. The responsibilities of the committee will include the: (1) evaluation of existing services and unmet needs in developing AIDS/HIV grant services networks; (2) review of the goals and targets of the request for proposal (RFP) application packets; (3) evaluation of ongoing program efforts; (4) definition of both short-range and long-range goals and objectives for the AIDS/HIV Services Grant Program; and (5) development of review criteria and standards for the AIDS/HIV Services Grant Program. (c) Committee recommendations. The program committee may identify and recommend to the department essential elements of service that should be considered in general or regional service development. The department shall consider the committee recommendations during the development of provider contracts required in sec.98.22 of this title (relating to Provider Application; Selection; Contract Process). (d) Membership. The board shall appoint a 15 member statewide HIV Services Advisory Committee representative of a: (1) social worker with extensive knowledge of case management in AIDS/HIV; (2) registered nurse with considerable expertise in caring for AIDS/HIV; (3) physician actively engaged in medical management of AIDS/HIV; (4) volunteer worker regularly involved for at least one year in an AIDS/HIV service agency; (5) nursing home representative with first hand knowledge of AIDS/HIV care in the long term care setting; (6) family member of a person with AIDS/HIV; (7) financial evaluator with experience in developing cost-of-care analyses in the medical setting; (8) hospital administrator from a facility providing care to substantial numbers of AIDS/HIV clients in out-patient and in-patient areas; (9) Texas Department of Human Services representative with broad experience in obtaining services for the AIDS/HIV client; (10) mental health representative involved in providing comprehensive emotional guidance to numerous clients with AIDS/HIV; (12) home health representative with expertise in providing care in the home for those with AIDS/HIV; (13) Hospice representative with broad experience in working with terminally ill persons with AIDS; (14) person with AIDS/HIV; and (15) minority representative with interest and experience working with minority groups in relation to AIDS/HIV. (e) Term. The members shall serve staggered three-year terms with five members' terms expiring every year in January. Initial appointments for one, two, and three-year terms will be determined by lottery. Members may be reappointed by the board to consecutive terms. (f) Officers. The officers of the committee shall consist of a chairperson and a vice-chairperson and shall be selected at the committee's first regular meeting each year by the committee's membership. Officers shall serve one-year terms but terms will be extended until the first regular meeting of the committee in the new year and officers shall be eligible for re-election for one additional term. The chairperson will be the presiding officer of the committee. The vice chairperson shall assume the authority and duties of the chairperson in his or her absence. (g) Subcommittees. The subcommittees of the committee shall be ad hoc; shall be appointed from the membership by the chairperson; and shall assume such powers and responsibilities as delegated to them by the chairperson. (h) Meetings. (1) Open meeting requirements. The committee shall post and hold all meetings in accordance with the Texas Open Meetings Act, Texas Civil Statutes, Article 6252- 17. (2) Regular meetings. The full committee shall meet at least two times per year. Notice of time, date, place, and purpose of regular meetings shall be provided to the members, by mail or telephone or both, at least seven days in advance of each meeting. (3) Special meetings. Special meetings of the committee shall be held as needed and called by the chairperson. Notice of the time, date, place, and purpose of special meetings shall be provided to the members, by mail or telephone or both, at least seven days in advance of each meeting. (4) Quorum. A majority of the committee's members constitutes a quorum for the transaction of business at any meeting. A majority is defined as more than one- half of the committee's membership. The committee may act only by majority vote of its members present and voting. Each member shall be entitled to one vote. (5) Attendance. A record of attendance at each meeting shall be made. If a member misses two consecutive meetings, written notice shall be given to the member. A third consecutive absence from a regular meeting shall be sufficient grounds for membership termination by the board. (6) Parliamentary procedure. Parliamentary procedures for all committee or subcommittee meetings are conducted in accordance with the latest edition of Roberts Rules of Order, except that the chairperson may vote on any action as any other member of the committee. (7) Conflict of interest. Any committee member having a potential conflict of interest between his/her professional affiliations and subject matter presented to the committee shall refrain from chairing the discussion and/or voting on the issue. (8) Minutes. Minutes of all committee meetings will be prepared and transmitted to the membership for their review prior to subsequent meetings. (9) Public participation. All requests from the public to participate in committee meetings shall be submitted to the committee chairperson. The agenda for each committee meeting shall include one or more items providing for public participation. The chairperson may limit, as necessary, the time for each spokesperson appearing before the committee. Written comments are encouraged and may be submitted to the committee for its consideration. The committee on its initiative may ask for public participation as needed and requested. Designation of time for public participation will be included on the agenda. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1991. TRD-9115530 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: December 31, 1991 Proposal publication date: October 8, 1991 For further information, please call: (512) 458-7463 Subchapter B. HIV Education Grant Program General Provisions 25 TAC sec.98.67, sec.98.69 The repealed sections are being adopted under the Health and Safety Code (code), sec.85.044, which provides the Board of Health with the authority to establish an advisory committee to assist the board in the implementation of the state HIV Services Grant Program and the HIV Education Grant Program; sec.11.016, which provides the Board of Health with the authority to appoint advisory committees; and sec.12.001, which provides the board with the authority to adopt rules to implement its duties. The repeal and new sections will affect the Code, sec.85.044. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1991. TRD-9115531 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: December 31, 1991 Proposal publication date: October 8, 1991 For further information, please call: (512) 458-7463 25 TAC sec.98.67 The new section is adopted under the Health and Safety Code (code), sec.85.044, which provides the Texas Board of Health with the authority to establish an advisory committee to assist the board in the implementation of the state HIV Services Grant Program and the HIV Education Grant Program; sec.11.016, which provides the Board of Health with the authority to appoint advisory committees; and sec.12.001, which provides the board with the authority to adopt rules to implement its duties. The repeal and new sections will affect sec.85.044 of the Code. sec.98.67. State HIV Education, Prevention, and Risk Reduction Advisory Committee. (a) Purpose. The purpose of the State HIV Education, Prevention, and Risk Reduction Advisory Committee (committee) is to assist the Texas Board of Health (board) and the Texas Department of Health (department) in the development of procedures and guidelines for the HIV Education Grant Program to provide HIV education, prevention, and risk reduction services at the community level. (b) Committee responsibilities. The responsibilities of the committee include the: (1) evaluation of existing education programs and unmet needs; (2) review of the goals and targets of the request for proposal (RFP) application/renewal packets; (3) evaluation of ongoing program efforts; (4) definition of both short-range and long-range goals and objectives for the AIDS/HIV Education Program; and (5) development of review criteria and standards for AIDS/HIV Education Program. (c) Committee recommendations. The department shall consider committee recommendations during the development of provider contracts, as required in sec.98.82 of this title (relating to Provider Application - Selection - Contract Process). (d) Membership. The board shall appoint a member statewide AIDS/HIV Education, Prevention, and Risk Reduction Advisory Committee which is representative of: (1) a community-based youth outreach program; (2) the Texas Youth Commission; (3) the Texas Department of Criminal Justice Internal School System (Windham school system); (4) a community-based drug treatment/outreach program; (5) the planned parenthood/family planning program representative; (6) a local health department; (7) a community-based program to reach gay/bisexual men; (8) the Texas Association of Retarded Citizens; (9) a member of the religious community (clergy); (10) a community-based organization for hearing impaired; (11) a PTA representative; (12) a parent; (13) a teacher/principal/HIV educator/HIV counsellor; (14) a community-based organization to reach Hispanics; and (15) a community-based organization to reach blacks. (e) Term. The members shall serve staggered three-year terms with five members' terms expiring each year in January. Initial appointments for one, two, and three year terms will be determined by lottery. Members may be reappointed by the board to consecutive terms. (f) Officers. The officers of the committee shall consist of a chairperson and a vice-chairperson and shall be selected at the committee's first regular meeting each year by the committee's membership. Officers shall serve one-year terms and shall be eligible for re-election for one additional term. The chairperson shall be the presiding officer of the committee. The vice-chairperson shall assume the authority and duties of the chairperson in his or her absence. (g) Subcommittees. The subcommittees of the committee shall be ad hoc, shall be appointed from the membership by the chairperson, and shall assume such powers and responsibilities as delegated to them by the chairperson. (h) Meetings. (1) Open meeting requirements. The committee shall post and hold all meetings in accordance with the Texas Open Meetings Act, Texas Civil Statutes, Article 6252- 17. (2) Regular meetings. The full committee shall meet at least two times per year. Notice of time, date, place, and purpose of regular meetings shall be provided to the members, by mail or telephone or both, at least seven days in advance of each meeting. (3) Special meetings. Special meetings of the committee shall be held as needed and called by the chairperson. Notice of the time, date, place, and purpose of special meetings shall be provided to the members, by mail or telephone or both, at least seven days in advance of each meeting. (4) Quorum. A majority of the committee's members constitutes a quorum for the transaction of business at any meeting. A majority is defined as more than one- half of the committee's membership. The committee may act only by majority vote of its members present and voting. Each member shall be entitled to one vote. (5) Attendance. A record of attendance at each meeting shall be made. The board shall be notified of members who miss two consecutive meetings. A third consecutive absence from a regular meeting shall be sufficient grounds for membership termination by the board. (6) Parliamentary procedures. Parliamentary procedures for all committee or subcommittee meetings are conducted in accordance with the latest edition of Roberts Rules of Order, except that the chairperson may vote on any action as any other member of the committee. (7) Conflict of interest. Any committee member having a potential conflict of interest between his/her professional affiliations and subject matter presented to the committee shall refrain from chairing the discussion and/or voting on the issue. (8) Minutes. Minutes of all committee meetings will be prepared and transmitted to the membership for their review prior to subsequent meetings. (9) Public participation. All requests from the public to participate in the committee meetings shall be submitted to the committee chairperson. The agenda for each committee meeting shall include one or more items providing for public participation. The chairperson may limit, as necessary, the time for each spokesperson appearing before the committee. Written comments are encouraged and may be submitted to the committee for their consideration. The committee on its initiative may ask for public participation as needed and requested. Designation of time for public participation will be included as an agenda item. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1991. TRD-9115532 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: December 31, 1991 Proposal publication date: October 8, 1991 For further information, please call: (512) 458-7463 Chapter 145. Long-Term Care Subchapter E. Procedures on Long-Term Care Facilities 25 TAC sec.145.88 The Texas Department of Health (department) adopts an amendment to sec.145.88, concerning long-term care procedures, with changes to the proposed text as published in the September 3, 1991, issue of the Texas Register (16 TexReg 4822). Section 145.88 concerns reports of abuse and neglect under the Health and Safety Code, Chapter 242, Subchapter E, and the amendment changes the definition of abuse and neglect to be uniform with definitions previously adopted by the Board of Health for nurse aides and currently proposed by the Department of Human Services in 40 TAC sec.19.101 for nursing facilities. The specific elements in the definitions also appear in final federal regulations issued September 26, 1991. The amendment updates and clarifies the determinations of abuse and neglect and coincides with regulations and guidelines and requirements in the Texas Penal Code. A commenter requested that the definition for verbal abuse be deleted and that the same definition be used for mental/psychological abuse and verbal abuse. After reviewing final federal regulations, which contain a specific reference to verbal abuse, and after consulting with legal counsel, the department does not agree with the comment and, therefore, has not changed the proposed amendment. Another commenter recommended that under the general definition for abuse the word "mistreatment" should be changed to "actions" for consistency with the definition of abuse in the department's nurse aide registry and training program rules and with the proposed definitions in the requirements for long-term care nursing facility licensure and Medicaid certification. The department agrees and has made the change. The Texas Health Care Association was the only association commenting on the proposed amendment. The association generally supported the amendment but had some recommendations for change. The amendment is adopted under the Health and Safety Code, sec.242.037, which provides the Texas Board of Health (board) with authority to adopt minimum standards for long term care facilities; and sec.12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.145.88. Reports of Abuse and Neglect under Health Safety Code, Chapter 242, Subchapter E. (a)-(g) (No change.) (h) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Abuse-Any act, failure to act, or incitement to act done willfully, knowingly, or recklessly through words or physical action which causes or could cause mental or physical injury or harm or death to a resident. This includes verbal, sexual, mental/psychological, physical abuse (including corporal punishment), involuntary seclusion, or any other action within this definition. (A) Verbal abuse-The use of any oral, written, or gestured language that includes disparaging or derogatory terms to a resident or within the resident's hearing distance, regardless of the resident's age, ability to comprehend, or disability. (B) Sexual abuse-Any touching or exposure of the anus, breast, or any part of the genitals of a resident without the voluntary, informed consent of the resident, and with the intent to arouse or gratify the sexual desire of any person, and includes, but is not limited to, sexual harassment, sexual coercion, or sexual assault. (C) Physical abuse-Physical action within the definition of abuse in this paragraph which includes, but is not limited to, hitting, slapping, pinching, and kicking. It also includes controlling behavior through corporal punishment. (D) Involuntary seclusion-The separation of a resident from others or from his or her room against his or her will or the will of his or her legal representative. Temporary monitored separation from other residents will not be considered involuntary seclusion and may be permitted if used as a therapeutic intervention as determined by professional staff and consistent with the resident's plan of care. (E) Mental/psychological abuse-The mistreatment within the definition of abuse in this paragraph which does not result in physical harm and includes, but is not limited to, humiliation, harassment, threats of punishment, deprivation, or intimidation. (2) Neglect-A deprivation of life's necessities of food, water, or shelter; or a failure of an individual to provide services, treatment, or care to a resident which causes or could cause mental or physical injury or harm or death to the resident. (i)-(m) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 9, 1991. TRD-9115464 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: December 30, 1991 Proposal publication date: September 3, 1991 For further information, please call: (512) 458-7709 Subchapter B. Minimum Standards for Nursing Homes 25 TAC sec.145.97 The Texas Department of Health (department) adopts an amendment to sec.145.97, concerning the reporting of resident death information, with changes to the proposed text as published in the October 8, 1991, issue of the Texas Register (16 Tex Reg 5555). The section concerns reporting of resident death information and the amendment implements provisions of House Bill 1984 passed by the 72nd Legislature, 1991. This legislation simplified reporting procedures of resident death in long-term care facilities by eliminating the requirement to report information already available from the death certificates. The legislation also provides that the department will produce statistical reports concerning resident deaths. Concerning subsection (b), a commenter stated that the language did not exactly follow the new reporting form required by House Bill 1984. The department agrees and has re-written the sentence to correspond with the form and the exact language in the law. Concerning subsection (c), two commenters stated that licensed institutions should have to make available only the historical statistics provided to them by the department. The department agrees and has re-written the subsection to reflect this change. Concerning subsection (d), a commenter stated that personal care facilities are no longer included in the Health and Safety Code, Chapter 242 and, therefore, are no longer covered under sec.145.97. The department agrees and has deleted the reference to personal care facilities from subsection (d). Concerning subsection (d)(3), a commenter stated that the type of facility referenced was limited to those serving persons with mental retardation. The reference should include facilities who serve persons with related conditions. The department agreed and has made the change. Concerning subsection (e), a commenter stated that statistical information concerning deaths among the elderly and in specific institutions should be made available to the public "upon request." The department agrees and has added the additional wording. Written comments were received from the Texas Association of Homes for the Aged and from the Texas Health Care Association. Verbal comments were also received from the department's Advisory Committee for Nursing Facility Affairs and department staff. The commenters generally were for the amendment but required clarification in certain areas. The amendment is adopted under the Health and Safety Code (Code), sec.242.037, which provides the Texas Board of Health (board) with the authority to adopt minimum standards for long-term care facilities; sec.242.134, which provides the board with certain responsibilities concerning the reporting of resident deaths in long term care facilities; and sec.12.001 which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. The amendment affects sec.242.134 of the Code. sec.145.97. Reporting of Resident Death Information. (a) (No change.) (b) The department shall prepare a standard form that shall be completed by the institution and submitted to the Bureau of Long-Term Care within 10 working days after the last day of the month in which a resident death occurs. The form shall include: (1) (No change.) (2) social security number of the deceased; (3) date of death; and (4) name and address of the institution. (c) These reports are confidential under the Health and Safety Code, sec.242.134; however, licensed institutions shall make available historical statistics provided to them by the department and shall provide the statistics if requested by the applicants for admission or their representative. In addition, data may be taken from the reports as noted in subsection (e) of this section. (d) For purposes of this section, institutions include: (1) nursing homes; (2) custodial care homes; (3) facilities serving persons with mental retardation and related conditions in Texas; and (4) maternity homes. (e) The department shall produce statistical information of official causes of death to determine patterns and trends of incidents of death among the elderly and in specific institutions and make this information available to the public upon request. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 9, 1991. TRD-9115465 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: February 1, 1992 Proposal publication date: October 8, 1991 For further information, please call: (512) 458-7709 Chapter 289. Occupational Health and Radiation Control Texas Regulations for Control of Radiation 25 TAC sec.289.116 The Texas Department of Health (department) adopts an amendment to sec.289. 116, with changes to the proposed text as published in the July 26, 1991, issue of the Texas Register (16 TexReg 4055), and also with changes to the material which the section adopts by reference. Section 289.116 adopts by reference Part 32 of the Texas Regulations for Control of Radiation (TRCR) , titled "Use of Radiation Machines in the Healing Arts and Veterinary Medicine. " The amendment is to Part 32 and clarifies the preventive maintenance schedule for all human diagnostic x-ray systems. Presently, Part 32 requires each registrant to perform, or cause to be performed, the schedule of maintenance provided by the manufacturer. The amendment requires, as a minimum, an annual check of specific maintenance items and replaces the existing section on maintenance schedules described in Part 32.20(h) with a new Part 32.20(h). Commenters suggested that the length of time to correct deficiencies and make repairs may be inadequate. The department agrees and has increased the time limit. Commenters suggested that the frequency for testing be changed. The department agrees and has changed the rule to reflect a frequency based upon the inspection intervals in TRCR Appendix 11-C. Commenters suggested that the Medical Physics Practice Act, Texas Civil Statutes, Senate Bill 521, 72nd Legislature, 1991, which became effective on September 1, 1991, may require that maintenance checks be performed by a licensed medical physicist. The department's response is that the department's Professional Licensing and Certification Division is responsible for implementing the Medical Physics Practice Act; accordingly, the comment has been sent to the division for its consideration. Commenters objected to the portion of the amendment that required annual calibration of instruments used to determine compliance with this part. The department agrees and has changed the calibration interval to 24 months. One commenter wanted elimination of inspections to verify compliance with the maintenance schedule. The department's response is that to ensure maintenance is performed and appropriate corrections or repairs are made, verification by inspection is necessary. Therefore, the department made no change to the rule as the result of the comment. One commenter requested that a committee of practicing medical physicists be appointed to go over the proposed amendment line by line. The department's response is that the amendment was published in the Texas Register as required by law and comments were invited at that time; the amendment was mailed to persons on an "interested persons" mailing list maintained by the department; and, prior to publication, draft versions of the amendment were mailed to those persons, so that input was solicited in the early stages of the amendment development. Accordingly, the department made no change as a result of the comment. Commenters requested clarification of the amendment concerning timers when the manufacturers specifications were not available. The department agrees and has changed the rule accordingly. One commenter questioned the requirement to calibrate all mA stations on machines. The current rule does not require calibration at every setting. Therefore the department has made no change. One commenter pointed out an error on units on linearity. In response, the department made the necessary corrections. Commenters suggested different wording be used in the sections on kVp.The department agrees and has made clarifying changes. One commenter felt the parameters for checking kVp would be too stringent for many systems and the parameters for mammography were too lenient. The department's response is that the American Association of Physicists in Medicine recommends an accuracy of 5 kVp or 5.0%, whichever is smaller. The department chose to require the percentage as a parameter and 2 kVp for mammography because of the need for greater accuracy on mammographic units. The department made no change to the rule as a result of the comments. One commenter questioned the need for the requirement for checking collimation on systems which do not incorporate numerical indicators. The department's response is that the requirement is necessary because the rule must be written to include the widest spectrum of users and types of equipment in use. Therefore, the department made no change to the rule as a result of the comment. One commenter questioned the requirement to check automatic collimation if it is not used. The department's response is that it believes that if a machine is operational, all components of that machine should function properly. The department made no change to the rule as a result of the comment. Commenters questioned the annual requirement for entrance level exposure limit checks which would have to be performed by a medical physicist. The department agrees and has deleted the requirement for medical and dental radiographic x-ray systems. The requirement remains in effect for mammographic units. One commenter requested that a registrant have an option to comply with the current maintenance schedule or the proposed maintenance schedule. The department's response is that the intent of this amendment is was to clarify the confusion caused by the variation in manufacturers' recommendations and to include non-certified x-ray units. Such intent would be negated by allowing compliance with either rule. The department made no change to the rule as a result of the comment. One commenter requested clarification of the requirement for the mammographic back-up timer. The department agrees and has modified the requirement for clarity. One commenter requested that mammographic units be inspected on a semi-annual basis rather than annually. The department's response is that medicare requires and intends to conduct annual inspections. The American College of Radiology intends to conduct random inspections of mammographic programs approved by them. Therefore, the department feels annual inspections are adequate at this time and made no change to the rules as a result of the comment. One commenter requested that the department require a recheck of any discrepancies. The department's response is that any discrepancies and corrections thereof will be checked during the next scheduled inspection by the department. Therefore, the department made no change to the rule as a result of the comment. Comments were received from MASI Healthcare Services, Dermatologic Radiotherapy Society, Scott & White Memorial Hospital, Hendrick Medical Center, Baylor College of Medicine, Texas Dental Association, The University of Texas Health Science Center at Houston Medical School Department of Radiology, Hermann Hospital, Hillcrest Baptist Medical Center, Center for Devices and Radiological Health, and El Paso Cancer Treatment Center. The majority of commenters supported the amendments; however, they raised questions and concerns and offered suggestions regarding changes. Two commenters were against the amendment in its entirety. The amendment is adopted under the Health and Safety Code, Chapter 401, which provides the Texas Board of Health with authority to adopt rules concerning the regulation of radioactive materials and other sources of radiation; and sec.12. 001, which authorizes the board to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.289.116. Use of Radiation Machines in the Healing Arts and Veterinary Medicine. (a) The Texas Department of Health adopts by reference Part 32, "Use of Radiation Machines in the Healing Arts and Veterinary Medicine" of the department's document titled Texas Regulations for Control of Radiation, as amended in January, 1992. (b) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 9, 1991. TRD-9115466 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 1, 1992 Proposal publication date: July 22, 1991 For further information, please call: (512) 835-7000 Chapter 325. Solid Waste Management Subchapter E. Permit Procedures and Design Criteria Application Review Process 25 TAC sec.325.93 The Texas Department of Health (department) adopts an amendment to sec.325. 93, concerning permit procedure and design criteria, with a change to the proposed text as published in the September 10, 1991, issue of the Texas Register (16 TexReg 4895). The section concerns the scheduling and preparation for a public hearing regarding the application review process. The amendment updates the municipal solid waste management regulations so as to make them consistent with the requirements in Senate Bill 1099, 72nd Legislature, 1991. The bill became effective on September 1, 1991, and establishes changes concerning the number of persons required to be notified by mail of any scheduled public hearing on an application for a permit for a solid waste facility, and the way such notifications are to be provided. Mailed notifications will be required regardless of the type of solid waste facility permit being sought. Previously, the requirement for mailed notifications applied only to landfill sites. The bill also reduces from three-quarters mile to one-half mile the distance from the boundaries of a solid waste site, or proposed site. This distance determines which residents, businesses, and property owners are required to be provided mailed notices of hearings. At a public hearing conducted on the proposed amendment, a commenter suggested that some description be added to subsection (c) concerning the method by which certification would be provided. The department agrees and has added a single additional sentence to the subsection. The department did not receive any other comments on the proposed amendment. No agency, group or association commented on the amendment. One individual commented. He was generally for the proposed amendment, but offered the previously mentioned suggestion for clarity. The amendment is adopted under the Health and Safety Code, sec.361.024, which provides the Texas Board of Health with the authority to adopt rules to manage and control municipal solid waste; sec.12.001, which provides the Texas Board of Health authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the commissioner of health; and Senate Bill 1099, 72nd Legislature, 1991, concerning the scheduling and preparation of a public hearing regarding the application review process. sec.325.93. Scheduling and Preparation for a Public Hearing. (a)-(b) (No change.) (c) Prior to the public hearing for any solid waste management facility, the applicant is required to mail a notice of the public hearing to individuals. The applicant shall notify each residential or business address and each owner of real property located within one-half mile from the property line of the proposed solid waste management facility listed in the real property appraisal records of the appraisal district in which the solid waste management facility is sought to be permitted as of the date the department rules the application for a permit administratively complete. To provide documentation of this date, a letter of administrative completeness will be forwarded to the applicant by the chief of the bureau or his department representatives stating the date that the application was ruled to be administratively complete. This will allow the applicant time to research the real property appraisal records of the appraisal district involved and have a mailing list ready by the date that notices are required to be mailed. The notices shall be deposited with the United States Postal Service not more than 45 days nor less than 30 days before the date of the public hearing. The notices shall be mailed by regular first class mail. Within 20 days after mailing of notices, the applicant shall certify to the department that the mailings were deposited with the United States Postal Service as required by this subsection. Certification shall be in the form of a letter signed by the applicant's authorized representative, stating the number of mailings that were sent by first class mail to residential and business addresses within one-half mile of the proposed solid waste management facility or the existing solid waste management facility for which an expansion is proposed, and the date on which such notices were deposited with the United States Postal Service. Acceptance of the certification creates a rebuttable presumption that the applicant has complied with this subsection . (d) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 9, 1991. TRD-9115472 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 1, 1992 Proposal publication date: September 10, 1991 For further information, please call: (512) 458-7271 Subchapter O. Guidelines for Regional and Local Solid Waste Management Plans. 25 TAC sec.sec.325.561, 325.563, 325.567, 325.568 The Texas Department of Health (department) adopts amendments to sec.sec.325. 561, 325.563, 325.567, and 325.568. Section 325.563 is adopted with changes to the proposed text as published in the September 3, 1991, issue of the Texas Register (16 TexReg 4823). Sections 325.561, 325.567, and 325.568 are adopted without changes and will not be republished. The sections cover guidelines for regional and local solid waste management plans, and the amendments implement the requirements of Senate Bill 1519, 71st Texas Legislature, 1989, and Senate Bill 1340, House Bill 69, House Bill 1022, and House Bill 1581, 72nd Texas Legislature, 1991, concerning solid waste management. The amendments cover purpose and scope, regional and local plan requirements, financial assistance for local and regional plans, and approved state, regional, and local solid waste management plans. The department received no comments at the public hearing on the proposal and one commenter sent two comments to the department during the comment period. Concerning sec.325.561(b)(5)(C), the commenter requested a definition for the phrase "technically suitable site" and suggested that further interpretation of the phrase "allow a local government to justify the need" would be helpful. The department's response is that, if it would be helpful, department staff are willing to discuss with any interested person in some detail the proper meaning and intent of these two phrases. The department, however, does not believe that further definitions are required and has made no change to the proposed amendment. Concerning sec.325.563(a)(3)(N), the commenter suggested that the proposed deleted wording "the need for" should be retained. The department agrees and has reinserted the wording into the subparagraph. Also, for clarity, the department has added these same words in sec.325.563(b)(3)(K). The only commenter was the North Central Texas Council of Governments. The commenter was neither for or against the amendments in their entirity; however the commenter offered comments and suggestions for change as previously discussed. The amendments are adopted under the Solid Waste Disposal Act, Health and Safety Code, sec.361.024, which provides the Texas Board of Health with the authority to adopt rules to manage and control municipal solid waste; the Comprehensive Municipal Solid Waste Management, Resource Recovery, and Conservation Act, Health and Safety Code, sec.363.021 which provides the Texas Board of Health with the authority to adopt rules to implement the Act; Health and Safety Code, sec.12.001 which provides the Texas of Board Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the commissioner of health; and Senate Bill 1519, 71st Legislature, 1989; Senate Bill 1340, House Bills 69, 1022, and 1581, 72nd Legislature, 1991, concerning solid waste management. sec.325.563. Regional and Local Plan Requirements. (a) Regional plans. A regional plan identifies the problems, goals, objectives, and recommended actions for solid waste management over a long-range period for the entire planning region. (1) (No change.) (2) Planning periods. The regional planning process shall address solid waste management over a long-range period. Long range is considered to be a period of at least 20 years. The maximum planning period addressed by the plan shall be stated on the plan cover and title page and at other appropriate locations within the body of the plan. The regional plan shall use the four planning periods listed in subparagraphs (A)-(D) of this paragraph as appropriate for the information presented: (A)-(C) (No change.) (D) long-range planning period, 11 to 20 years or longer, with information in the least detail. (3) Plan content. A regional plan shall be the result of a planning process related to the proper management of solid waste in the planning region. The process shall include identification of problems and collection and evaluation of the data necessary to provide a written public statement of goals and objectives and actions recommended to accomplish those goals and objectives. The regional plan shall include: (A)-(B) (No change.) (C) description of current and planned solid waste management activities in the region; (D) description and assessment of the adequacy of existing resource recovery, storage, transportation, treatment, and disposal facilities and practices, and programs for the collection and disposal of household hazardous wastes; (E) assessment of current source reduction and waste minimization efforts, including sludge, and efforts to reuse or recycle waste; (F) identification of additional opportunities for source reduction and waste minimization, and reuse or recycling of waste; (G) recommendations for encouraging and achieving a greater degree of source reduction and waste minimization, and reuse or recycling of waste; (H) identification of public and private management agencies and responsibilities; (I) identification of solid waste management problems and establishment of priorities for addressing those problems; (J) planning areas and agencies with common solid waste management problems which could be addressed through joint action; (K) identification of incentives and barriers for source reduction and waste minimization, and resource recovery, including identification of potential markets; (L) regional goals and objectives, including recycling rate goals; (M) advantages and disadvantages of alternative actions; and (N) the recommended plan of action and associated timetable, for achieving regional goals and objectives, including: recycling rate goals; source reduction and waste minimization; composting programs for yard wastes and related organic wastes; household hazardous waste collection and disposal programs; and the need for new or expanded facilities and practices. (4) (No change.) (b) Local plans. A local plan addresses specific short-and long-range problems and actions related to solid waste management within the jurisdiction of one or more local governments and may be developed regardless of whether a regional plan has been developed which will affect the local planning area. (1) (No change.) (2) Planning periods. The local planning process shall address specific short- and long-range problems and actions in solid waste management. The maximum planning period addressed by the plan shall be stated on the plan cover and title page and at other appropriate locations within the body of the plan. The local plan should use the planning periods listed in subparagraphs (A)-(D) of this paragraph as appropriate for the information presented: (A)-(C) (No change.) (D) long-range planning period, 11 to 20 years or longer. (3) Plan content. A local plan shall be the result of a planning process that is related to the proper management of solid waste in the local planning area. The process shall include identification of problems and collection and evaluation of the data necessary to provide a written public statement of goals and objectives and the actions recommended to accomplish those goals and objectives. The local plan shall include: (A) -(B) (No change.) (C) description of current and planned solid waste management activities in the local planning area; (D) description and assessment of the adequacy of existing resource recovery, storage, transportation, treatment, and disposal facilities and practices, including programs for the collection and disposal of household hazardous wastes; (E) identification of the short-and long-range solid waste management problems within the local planning area; (F) assessment of current source reduction and waste minimization efforts for solid waste, including sludge, and efforts to reuse or recycle waste; (G) identification of additional opportunities for source reduction and waste minimization, and reuse or recycling of waste; (H) recommendations for encouraging and achieving a greater degree of source reduction and waste minimization, and reuse or recycling of waste; (I) local goals and objectives associated with management problems, including recycling rate goals; (J) advantages and disadvantages of alternative actions; and (K) the recommended plan of action and associated timetable for accomplishing the goals and objectives, including: recycling rate goals; source reduction and waste minimization; composting programs for yard wastes and related organic wastes; household hazardous waste collection programs; and the need for new or expanded facilities or practices. (4) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 9, 1991. TRD-9115470 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 1, 1992 Proposal publication date: September 3, 1991 For further information, please call: (512) 458-7271 Subchapter Y. Medical Waste Management Transporters of Medical Waste 25 TAC sec.325.1005 The Texas Department of Health (department) adopts an amendment to sec.325. 1005, with changes to the proposed text as published in the October 4, 1991, issue of the Texas Register (16 TexReg 5484). The section concerns transportation of medical waste, and the rule changes will provide less costly methods of providing financial responsibility for transporters of medical waste. This will enable small businesses to register as transporters and provide collection and transportation services in compliance with the rules covering medical waste management. Transporters of untreated medical waste will be required to provide evidence of financial responsibility through a pollution liability insurance policy or an irrevocable letter of credit in an amount determined by the number and type of transport vehicles used. The following comments were received concerning the proposed sections: COMMENT: A commenter opposed the proposed changes, but requested that if the department found it necessary to change the rules to accommodate smaller companies, that they be allowed to continue to meet the requirements by carrying pollution liability insurance in lieu of an irrevocable letter of credit. RESPONSE: The department agrees. Since several transporters registered with the department operate in more than one state, the department has modified subsection (j) to allow the use of a $1 million pollution liability insurance policy to satisfy the financial responsibility requirement. COMMENT: A commenter objected to restriction of the evidence of responsibility to only an irrevocable letter of credit and requested that the options allowed in the original rules be retained. The commenter cited the allowed use of several mechanisms by the Environmental Protection Agency and the Texas Water Commission. Among the mechanisms cited were: financial test, corporate guarantee, insurance, letter of credit, surety bond, or trust fund. RESPONSE: The department disagrees. A trust fund may be appropriate for a fixed facility with a multiple year permit, but for a one-year license, the amount deposited in the fund must be equal to the total requirement and the cost cannot be spread over several years. This method is too expensive for smaller companies, is considered inappropriate for transporters, and will not be allowed. Surety or performance bonds have proven unsatisfactory in other programs in the department and will not be allowed. Financial tests and corporate guarantees may be appropriate for a fixed facility or facilities, but the department does not consider them suitable for transporters. COMMENT: A commenter objected to the reduction of the financial responsibility requirements because of an applicant's size. Currently, registered transporters have met the requirements at considerable expense. The commenter also cited a lack of enforcement action by the department with respect to some small transporters who were alleged to be operating without a registration. The commenter also cited regulations promulgated by the United States Department of Transportation (DOT) concerning transportation of hazardous materials which will require a $1 million MS-90 pollution liability rider on insurance. This would increase to $5 million if the federal rules require placarding of the vehicles. RESPONSE: The department disagrees. The applicability of federal DOT rules to transporters operating only intra-state will have to be clarified at a later date. If the DOT rules require $1 million pollution liability coverage and if the DOT rules are applicable to intra-state transporters, then the department may have to revise the rules. In addition to the previously stated changes, the department has made a number of editorial changes for the purpose of clarification in sec.325.1005. Comments were recieved from All Med-Disposal, Inc.,; Eccor, Inc.,; Medical Environmental Disposal, Inc.,; Meditrak, Inc.,; and National Medical Waste of Texas. Three commenters opposed various parts of the amendment; however offered suggestions for clarity. Two commenters were in favor of the amendments The amendments are adopted under the Health and Safety Code (Code), sec.361. 024, which authorizes the Texas Board of Health to adopt rules to manage municipal solid waste, and sec.12.001, which provides the Texas Board of Health with authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the commissioner of health. The amendment affects the Code, sec. sec.361.001- 361.012. sec.325.1005. Transporters of Medical Waste. (a)-(i) (No change.) (j) Each transporter shall, unless otherwise exempted, excluded, or prohibited by law, provide evidence of financial responsibility as follows: (1) (No change.) (2) a combined, single-limit automobile liability insurance policy with limits of at least $1 million per accident; and (3) either a pollution liability policy with a flat limit of $1 million; or (4) an irrevocable letter of credit as follows. (A) Each transporter shall provide an irrevocable letter of credit from a recognized financial institution payable to the Texas Department of Health (department) in the following amount: (i) if the transporter registers three or less self-contained trucks or transport vehicles (not tractor-trailer units), a letter for $10,000; (ii) if the transporter registers more than three self-contained trucks or transporter vehicles (not tractor-trailer units), a letter for $35,000; (iii) if the transporter registers three or less tractor-trailer vehicles, a letter for $25,000; or (iv) if the transporter registers more than three tractor-trailer vehicles, a letter for $50,000. (B) Requests for registration or renewal received after the effective date of this paragraph shall comply with the provisions of this paragraph. Transporters registered with the department prior to the effective date of this paragraph may comply with the requirements of this subsection or comply with the requirements in effect at the time of their registration until their renewal date. (k)-(r) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 9, 1991. TRD-9115468 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: December 30, 1991 Proposal publication date: October 4, 1991 For further information, please call: (512) 458-7271 Subchapter Z. Waste Minimization and Recyclable Materials Used Oil Collection Management and Recycling 25 TAC sec.sec.325.1141-325.1152 The Texas Department of Health (department) adopts new sec.sec.325.1141-325. 1152. New sec.sec.325.1141-325.1150 are adopted with changes to the proposed text as published in the October 8, 1991, issue of the Texas Register (16 TexReg 5559). Sections 325.1151-325.1152 are adopted without changes and will not be republished. The new sections concern used oil collection, management and recycling and implement Senate Bill 1340, 72nd Legislature, 1991, which amended the Solid Waste Disposal Act, Health and Safety Code, by adding new Chapter 371. The new sections cover the areas of purpose and applicability; definitions; notice by retail dealers; collection facilities; limitation of liability; registration of persons transporting, marketing, or recycling used oil; prohibition of certain actions, including penalties; criminal and civil penalties; injunctive relief; and venue of suits for injunctive relief. The department received comments at six public hearings held throughout the state on the proposed amendments. The department also received written comments during the official comment period. A summary of the comments and the department's responses are as follows. Concerning sec.325.1141 and sec.324.1142, a commenter recommended that the terms "used oil marketers" and "practice of marketing used oil" be added to the purpose and applicability sections of the rules since such persons and activities are covered throughout the sections. The department agrees and has added appropriate language. Concerning sec.325.1142 specifically, and all the sections generally, several commenters questioned whether the department had authority to regulate all used oil or just used automotive oil generated by municipal solid waste generators or consumers. The department's response is that Senate Bill 1340 authorizes the department to regulate used automotive oil which is generated by private citizens who change their own oil, plus all used automotive oil generated by businesses that service their own or other persons' automobiles, buses, or trucks. To clarify this point, the department has added the word "automotive" to sec.sec.325.1142, 325.1145, and 325.1147. Concerning sec.325.1143, regarding the definition of "public used oil collection center", a commenter stated that the definition seems to require that a facility meet a total of three separate operating requirements to be considered a "center", while Senate Bill 1340 simply requires that any one of the three conditions be met. The department agrees that further clarity is required and has modified the definition. Concerning sec.325.1143, regarding the definition of "public used oil collection center, a commenter recommended that the words "small quantities" are confusing and should be deleted. The department's response is that the definition is worded almost exactly as it appears in Senate Bill 1340. In studying the definition found in the bill (particularly the part of the definition that refers to publicly sponsored facilities), the department believes that the words "small quantities" refer not to the total amount of oil collected, but rather to the amount accepted from any one private citizen. Accordingly, the department has retained the wording. Concerning sec.325.1143, regarding the definition of "Recycling", a commenter recommended that burning used oil for its energy value be considered as an acceptable recycling method and, therefore, be included in the definition. The department's response is that even though the burning of used automotive oil for energy recovery is an acceptable practice, the department does not consider such use to be the highest or best use for such material. Accordingly, the department has not accepted the recommendation. Concerning sec.325.1143, regarding the definition of "Used oil", a commenter recommended that the definition be changed to better reflect the fact that not all used oil is recyclable. The department's response is that it has determined that the definition, as proposed, does not state or imply that all used oil is recyclable. Accordingly, the department has not accepted the recommendation. Concerning sec.325.1143 generally, a commenter recommended that the department define the words "marketing" and "marketer". The department's response is that it will study the recommendation by considering proper definitions for these words and possibly include them in future amendments to the definitions. Concerning sec.325.1144, a commenter asked how soon retail dealers would be required to have in place the signs provided by the department. In response, the department has added to the section an effective date of March 1, 1992, which should be sufficient time for the department to prepare the signs and for retailers to request, receive, and properly install them. Concerning sec.325.1145, a commenter recommended that the title of this section be changed from "Collection Facilities" to "Used Oil Collection Centers" so as to clarify which organizations and businesses are subject to the requirements of the section. The department agrees and has renamed the section. Concerning sec.325.1145(b), a commenter suggested that a provision be added to the subsection stating that it is a violation for the public to abandon (deliver) even small quantities of used oil at any business not displaying a sign that the business is a public used oil collection center. The department disagrees because it is possible that some businesses which register as used oil collection centers and receive used oil from some, but not all, members of the public may not want to display signs that the businesses are public used oil collection centers. To clarify this point, the department has modified the provision concerning the posting of signs. Concerning sec.325.1145(b), a commenter suggested that a special logo be adopted for use on public used oil collection center signs. The department's response is that it will study this recommendation, but presently does not believe a requirement for a special logo needs to be in the subsection. Concerning sec.325.1145(c), several commenters suggested that no fee for public used oil collection center registration be charged. The department's response is that the subsection does not require a registration fee. Concerning sec.325.1145(c), a commenter recommended that a separate report on persons delivering "do-it-yourself used oil" to a public used oil collection center not be required. The department's response is that the subsection does not require that any particular information concerning the identities of such persons be gathered or reported; however, the subsection does require that once each year the public used oil collection center operator report to the department the amount or quantity of used automative oil that has been accepted from the public annually. This reporting responsibility is required in Senate Bill 1340 and has been retained in the subsection. Concerning sec.325.1145(d), several commenters questioned the need for a 30-day notice prior to discontinuing service as a public used oil collection center. The department agrees with the comments and has modified the subsection to require only that the notice be filed within 30 days after the center stops accepting used automotive oil from the public. Concerning sec.325.1145(e), a commenter indicated that underground storage tanks which are subject to United States Environmental Protection Agency standards for leak detection, corrective action, and retrofitting are not sufficiently addressed in the proposed subsection. Another commenter questioned whether the subsection would allow public used oil collection centers to place do-it- yourself used automotive oil in underground tanks. The department's response is that it does not intend in these sections to prohibit the use of existing underground storage tanks at automotive service facilities from receiving used oil from private citizens, nor does the department propose to ban new underground oil storage tanks that meet installation and operational requirements of the Texas Water Commission. However, the department has modified sec.325.1145(e)(5) by combining the provisions in proposed paragraphs (5) and (9) into the final sec.325.1145(e)(5) to indicate that owners/operators of public used oil collection centers are subject to various state and local regulations with respect to their storage tanks. Concerning sec.325.1145(e)(6)-(8), several commenters questioned the reason and necessity for the requirements relating to concrete pads or impervious surfaces, secondary containment capacity, three inches of sand lining for all storage areas, and all welded construction for certain storage tanks and associated piping. The commenters expressed a concern that the proposed requirements would simply serve to discourage businesses that change automotive oil from serving as collection centers and, therefore, were contrary to the overall intent of the sections. Several of the commenters emphasized that the proposed requirements applied only to businesses that might agree to voluntarily serve as public used oil collection centers, and not to all used oil storage facilities. One commenter suggested that the secondary containment requirement should not apply to small containers (for example, drums), but only to above-ground tanks. The department agrees that such requirements might serve to unduly discourage businesses from participation in the do-it-yourself oil collection program, and has concluded that if these or similar restrictions are placed in effect they should apply to all facilities that store used oil and not only to public used oil collection centers. Accordingly, the department has deleted sec.325.1145(e)(6)-(8). Concerning sec.325.1146, several commenters recommended that the section include a provision for department assistance (either personnel or funding) to enable the clean-up and/or proper disposal of any "hazardous materials" placed at registered public used oil collection centers without consent of the center operator. The department's response is that it is aware of the added risks that may confront those businesses which, as a result of posting signs attesting to their willingness to accept used automotive oil and implement other fairly visible recycling practices, might conceivably tempt some individuals to engage in illegal dumping. According to the Health and Safety Code, sec.361.062, the department is required to transfer to the Texas Water Commission 25 percent of the fees collected, to be deposited into the used oil recycling fund. These transferred funds are specifically for the purpose of restoring the environmental quality of sites that the commission identifies as having been contaminated through improper used oil management practices. Whether these transferred funds or other monies might be used to cover disposal costs of illegally placed "hazardous materials" has not yet been determined. The department, at present, has no jurisdiction over hazardous materials or hazardous waste. To the extent that the "hazardous materials" may be originating from households, the department, through various legislatively required assistance grant programs, will be helping local communities establish and operate household hazardous waste collection centers. The creation of these centers, together with newly planned citizen education programs, should help reduce the number of incidents of illegal dumping by private citizens. Accordingly, the department has made no change to sec.325.1146 as a result of the comments. Concerning sec.325.1147(c), a commenter stated that the provision is unclear as to whether the transporting and storage requirements are limited to those persons who are required to register with the department or whether the requirements apply more broadly. The department agrees and has appropriately clarified the subsection by deleting all of the paragraphs, replacing some of them with new subsections (d)-(g), renumbering proposed subsections (d) and (e), and revising the remaining language. Concerning sec.325.1147(c)(7), numerous comments were received. Several commenters suggested that the liability described in sec.325.1146 could be significantly reduced if the paragraph would require drivers, prior to pick-up, to test used oil for halogens. Several commenters questioned what type of equipment was available for drivers and what limits the driver should be willing to accept. Other commenters pointed out that if the do-it-yourself individuals were somehow found to be responsible for the contamination of an entire tank or container of used oil, recyclers and marketers might reject the shipment, refuse to buy the oil for the price previously determined, or even charge the center operator for accepting the oil. Another commenter recommended that the department establish standards consistent with EPA's halogen criteria, as published in 40 Code of Federal Regulations, sec.266.4(c), and that the department's rules be changed so as to require the transporter to accept used oil with halogen levels below 1,000 ppm. The department's response to all of the comments is that it understands the concerns raised, and after much consideration, has determined for the time being to delete sec.327.1147(c)(7) and all references to driver testing for halogens. Concerning sec.325.1147(c), a commenter questioned whether a private citizen transporting do-it-yourself used oil to a collection center was required to use a manifest. In response, the department has clarified subsection (a) by making it applicable only to those individuals who annually transport 500 gallons or more of used automotive oil. Concerning sec.325.1147(c), several commenters expressed concern that a "hazardous waste" manifest not be required to be used when shipping used oil. One commenter suggested that a special "used oil manifest" be developed. Other commenters suggested that perhaps a bill of lading would be more appropriate than a manifest form. The department's response is that the manifests being envisioned by the department for this program would not be the same as those used for hazardous waste. While essentially all transporters, marketers and recyclers will have I.D. numbers that can be used on manifest forms (as a result of their required registration), many used oil generators will not. The used automotive oil manifest forms that the department proposes to use will not require that the used oil generator be identified on the manifest by department issued I.D. number. Accordingly, the department has made no change to the subsection as a result of these comments. Concerning sec.325.1148, a commenter noted that EPA and the Texas Water Commission have already granted certain individuals, by way of permits, the right to discharge de minimis amounts of oil to receiving streams and/or publicly-owned treatment works (POTWs). Several commenters recommended rewording the subsection to allow for permitted discharges or activities. The department's response is that that sec.325.1148 is primarily directed to citizens as opposed to operators of used oil collection centers, marketers or recyclers. However, since it does apply to all persons, the department has revised the section to reflect the fact that such discharges or activities, if conducted in accordance with a valid permit, would not be a violation. Concerning sec.325.1148(b)(2), a commenter recommended that an exemption should be granted for minor spills in which absorbent materials are utilized and mixtures of absorbent and used oil result. Another commenter suggested that oil filters, oily rags, oil-contaminated soil and the like be excluded from the specific requirements of this paragraph. The department's response is that the practice of properly and correctly using an absorbent or rag in the clean-up of a waste oil spill would not constitute a violation of this paragraph. Accordingly, the department has made no change to the paragraph as a result of these comments. Concerning sec.325.1148(b)(3), a commenter stated that federal regulations allow a conditionally exempt small quantity generator to mix his waste with used oil, provided the mixture is burned for energy recovery in accordance with 40 Code of Federal Regulations, Part 266, Subpart E, sec.261.5(j). The commenter suggested that the prohibition against mixing used oil with hazardous waste should not necessarily apply to everyone. The department's response is that Senate Bill 1340, which is the basis for the prohibition, refers mainly to private citizens who might, in addition to generating do-it-yourself used automotive oil, generate certain hazardous household wastes which currently are exempt from the Resource Conservation and Recovery Act. In fact, such materials are not even defined as "hazardous waste". Accordingly, the department has made no change to the paragraph as a result of this comment. Concerning sec.325.1150(c), a commenter noted that the proposed penalty exclusions appeared to be broader (i.e., to include failure to register in addition failure to report) than what was intended by Senate Bill 1340. The department agrees and has appropriately revised subsection (c) . Several commenters questioned whether oil filters were covered by any of the requirements of the proposed sections. The department's response is that it has not specifically included oil filters in these sections, but intends, shortly, in another subchapter of this chapter, to adopt other special processing and disposal requirements for filters. The department also is planning to address the problem of oil filter disposal for do-it-yourself individuals through various public education and assistance grant programs being established for the purpose of encouraging local governments to set up do-it-yourself used oil collection centers. A commenter noted that the proposed sections make no mention of the two cent per quart fee on new oil or the allowed one percent retention fee for dealers. The department's response is that rules concerning the collection of fees for the used oil recycling fund are the responsibility of the State Comptroller's Office and, therefore, are not included in these sections. Other commenters expressed concern that too little of the burden for accepting and handling do-it-yourself used automotive oil was being placed on the retailers of off-premises used oil. The department's response is that it understands the expressed concern, but finds that Senate Bill 1340 provides no authority for the department to require that retailers carry a larger share of the burden and, therefore, has not included additional requirements in the sections. In addition to changes made to the sections as a result of public comments, the department has made several editorial changes for clarification purposes to sec.sec.325.1141-325.1142, 325.1144-325.1149. Companies, groups, and associations which submitted comments during the public hearings or in writing included the following: Texas Railroad Commission; Texas Oil Marketers Association; National Association of Independent Lubes (NAIL) ; Mobil Oil Corporation; Texas Mid-Continent Oil and Gas Association; Texas Water Commission; Exxon Company, U.S.A.; Texas Waste Oil and Filter Recycling Committee; El Paso Natural Gas Company; A-1 Lee Oil Service, Inc. d.b.a. Davis' Texas Legacy Company; StarEnterprise; Texas Retailers Association; Convenient Automotive Services Institute (CASI); Fleet Maintenance of Texas; Fortis International, Inc., and Pennzoil Company. None of the commenters were for or against the proposed new sections in their entirety but they had questions, concerns, and recommendations. The new sections are adopted under the Health and Safety Code, sec.371.028, which provides the Texas Board of Health with the authority to adopt rules concerning used oil collection, management and recycling; sec.361.011, which establishes the department's jurisdiction over municipal solid waste management; sec.361.024, which provides the board with the authority to adopt rules to manage and control municipal solid waste; and sec.12.001 which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.325.1141. Purpose. The intent of the sections in this undesignated head is to implement the provisions of the Health and Safety Code, Chapter 371, sec. sec.371.001-371.062, which relate to the collection, management, and recycling of do-it-yourself (DIY) used automotive oil. These sections also establish appropriate registration, storage, shipping, recordkeeping, and reporting requirements for transporters, marketers, and recyclers of used automotive oil. sec.325.1142. Applicability. The sections in this undesignated head are applicable to persons involved in collecting, transporting, marketing, recycling, or disposal of used automotive oil that is subject to regulation by the department in accordance with sec.325.3 of this title (relating to Applicability). sec.325.1143. Definitions. The following words, terms, and abbreviations, when used in the sections in this undesignated head, shall have the following meanings, unless the context clearly indicates otherwise. Other definitions pertinent to these and other sections are contained in the sec.325.5 of this title (relating to Definitions). Automotive oil -Any lubricating oils intended for use in an internal combustion engine, crankcase, transmission, gear box, or differential for an automobile, bus, or truck. Do-it-yourself (DIY) used oil-Used oil that is generated by a person who changes the person's own automotive oil. Generator-A person whose act or process produces used oil. Public used oil collection center-A facility which accepts do-it-yourself used oil. Such centers include: (A) automotive service facilities that in the course of business accept, for recycling, small quantities of used oil from private citizens; (B) facilities that store used oil in above ground tanks and that in the course of business accept, for recycling, small quantities of used oil from private citizens; and (C) publicly sponsored collection facilities that are designated and authorized by the Texas Department of Health (department) to accept, for recycling, small quantities of used oil from private citizens. Reclaiming-The act of using methods, other than rerefining, to remove insoluble impurities from used oil and making the used oil suitable for further use as a lubricant or petroleum product. The term includes settling, heating, dehydration, filtration, or centrifuging. Recycling-The act of: (A) preparing used oil for reuse as a petroleum product by rerefining, reclaiming, or other means; or (B) using used oil as a lubricant or petroleum product instead of using a petroleum product made from new oil. Rerefining-The act of applying refining processes to used oil to produce high-quality base stocks for lubricants or other petroleum products. Used oil-Any oil that has been refined from crude oil or a synthetic oil that, as a result of use, storage, or handling, has become unsuitable for its original purpose because of impurities or the loss of original properties, but that may be suitable for further use and is recyclable. sec.325.1144. Public Notice by Retail Dealer. Effective March 1, 1992, a retail dealer who annually sells directly to the public more than 500 gallons of automotive oil in containers for use off-premises shall post in a prominent place a sign provided by the Texas Department of Health (department) informing the public that improper disposal of used oil is prohibited by law. The sign shall prominently display the toll-free telephone number of the state used oil information center. Written requests for department provided signs should be sent to the Texas Department of Health, Bureau of Solid Waste Management, 1100 West 49th Street, Austin, Texas 78756-3199. sec.325.1145. Used Oil Collection Centers. (a) All businesses that change automotive oil for the public and all appropriate government agencies are encouraged to serve as public used oil collection centers. (b) Public used oil collection centers are encouraged to post and maintain durable and legible signs identifying the site as a public used oil collection center. (c) A public used oil collection center annually shall: (1) register with the Texas Department of Health (department), using forms provided by the department; and (2) report to the department concerning the amount of used automotive oil collected by the center from the public, using forms available from the department. (d) A public used oil collection center shall notify the department in writing within 30 days following the abandonment or closure of the used oil collection center or the cessation of accepting used automotive oil from private citizens. (e) Operation and maintenance procedures at public used oil collection centers shall be as follows. (1) Center operators shall, at all times, utilize good housekeeping procedures, including regular inspections of all above-ground tanks and containers. Operator conducted inspection programs shall be designed to spot problems with respect to the integrity of tanks or containers, uncover problems that could result in an unauthorized release of used oil, and ensure that immediate clean up of any leakage is undertaken. (2) In the event of a spill, center operators shall follow standard spill response and clean up procedures, to ensure that the spill is contained and cleaned up as quickly as possible. (3) All tanks and containers used to store used oil shall be clearly labeled with the phrase "USED OIL". (4) A tank or container used for storage of used oil that is found to be leaking or in poor condition shall be removed from service, ensuring that only serviceable tanks or containers are provided for used oil storage. (5) Public used oil collection center owners and operators shall ensure that the locations of all used oil tanks and containers comply with applicable local ordinances and codes, as well as with applicable state and federal regulations and safety requirements. (f) A representative of the department may, during normal business hours, or by appointment, enter any place, building, or premise of a collection center for the purpose of inspecting the facility. sec.325.1146. Limitation of Liability. (a) A person may not recover from the owner, operator, or lessor of a registered public used oil collection center any damages or costs of response actions at another location resulting from a release or threatened release of used oil collected at the center if: (1) the owner, operator, or lessor of the collection center does not mix the used oil collected with any hazardous waste or polychlorinated biphenyls (PCBs); (2) the owner, operator, or lessor of the collection center does not accept used oil that the owner, operator, or lessor knows contains hazardous waste or PCBs; and (3) the collection center is in compliance with management standards adopted by the Texas Department of Health. (b) For purposes of this section, the owner, operator, or lessor of a public used oil collection center may presume that a quantity of less than five gallons of used oil accepted at any one time from any member of the public is not mixed with a hazardous waste or PCBs, provided that the owner, operator, or lessor acts in good faith. (c) This section applies only to activities directly related to the collection of used oil by a public used oil collection center. This section does not apply to grossly negligent activities related to the operation of a used oil collection center. (d) This section does not affect or modify the obligations or liability of any person other than the owner, operator, or lessor of the collection center under any other provisions of state or federal law, including common law, for injury or damage resulting from a release of used oil or hazardous substances. (e) This section does not affect or modify the obligations or liability of any owner, operator, or lessor of a collection center with regard to services other than accepting used oil from the public. sec.325.1147. Registration and Other Requirements for Persons Involved in the Transportation, Marketing, or Recycling of Used Oil. (a) Any person who transports or plans to transport over public highways of this state more than 500 gallons of used automotive oil annually, who markets or plans to market more than 500 gallons of used automotive oil annually, or who recycles or plans to recycle more than 10,000 gallons of used automotive oil annually shall register annually with the department in accordance with this section, utilizing registration forms prescribed by the department. (b) All persons transporting, marketing, or recycling used automotive oil who are required to register shall: (1) report annually the sources of used oil transported, marketed, or recycled during the preceding year, the quantity of used oil received, the date of receipt, and the destination or end use of the used oil; (2) provide evidence of familiarity with applicable state laws and rules and management procedures applicable to used oil transportation, marketing, or recycling; (3) provide proof of liability insurance or other evidence of financial responsibility for any liability that may be incurred in transporting, marketing, or recycling used oil; and (4) have necessary federal, state, and local permits as required. (c) Trucks transporting used automotive oil, that in accordance with subsection (f) of this section is required to be accompanied by a manifest, must comply with all applicable United States Department of Transportation (DOT) regulations, including any applicable placarding and insurance requirements. (d) Underground tanks utilized for the storage of used automotive oil must comply with applicable Texas Water Commission regulations. (e) The locations of all used automotive oil storage tanks must comply with state and local zoning, building, and fire codes. (f) All shipments of used oil, conducted by persons required under subsection (a) of this section to register with the department as used oil transporters, must be manifested, utilizing manifest forms provided or prescribed by the department. (g) All manifests shall be retained for a minimum of three years. (h) A representative of the department may, during normal business hours, or by appointment, enter any place, building or premise of a transporter, marketer or recycler of used oil for the purpose of inspecting the facilities and/or equipment for compliance with these sections. (i) A utility or industrial generator of used oil that transports its own used oil from one generator-owned or generator-operated facility to another or that recycles its own used oil for use in its operations is not required to register or report under this section. sec.325.1148. Prohibited Actions; Penalties. (a) A person may not collect, transport, store, recycle, use, discharge, or dispose of used automotive oil in any manner that endangers the public health or welfare or endangers or damages the environment. (b) A person commits an offense if, without benefit of a valid permit authorizing the particular action, the person: (1) intentionally discharges used automotive oil into a sewer, drainage system, septic tank, surface water or groundwater, watercourse, or marine water; (2) knowingly mixes or commingles used automotive oil with solid waste that is to be disposed of in landfills or directly disposes of used oil on land or in landfills; (3) intentionally mixes or commingles used automotive oil with hazardous waste or other hazardous substances or polychlorinated biphenyls (PCBs); (4) transports, markets, or recycles used automotive oil within the state: (A) without first complying with the registration requirements of sec.325.1147 of this title (relating to Registration and Other Requirements for Persons Involved in the Transportation, Marketing, or Recycling of Used Oil); and/or (B) in violation of any operational requirement contained in sec.325.1147; (5) applies used automotive oil to roads or land for dust suppression, weed abatement, or other similar uses that introduce used oil into the environment; or (6) violates an order of the Texas Department of Health to cease and desist any activity prohibited by this section or any rule applicable to a prohibited activity. (c) It is an exception to the application of subsection (b) of this section if a person unknowingly disposes into a landfill any used oil that has not been properly segregated or separated by the generator from other solid wastes. (d) It is an exception to the application of subsection (b)(2) of this section if the mixing or commingling of used oil with solid waste that is to be disposed of in landfills is incident to and the unavoidable result of the mechanical shredding of motor vehicles, appliances, or other items of scrap, used, or obsolete metals. sec.325.1149. Criminal Penalties. (a) Except as provided by subsection (b) of this section, an offense under sec.325.1148 of this title (relating to Prohibited Actions; Penalties) is a Class C misdemeanor. (b) If it is shown on the trial of an offense under sec.325.1148 of this title that the defendant has previously been convicted of an offense under sec. 325. 1148 the offense is a Class A misdemeanor. sec.325.1150. Civil Penalties. (a) Except as provided by subsection (c) of this section, a person who violates any requirements in this undesignated head is liable for a civil penalty of not less than $100 or more than $500 for each act of violation and for each day of violation. (b) A civil penalty recovered in a suit brought by a local government under this section shall be divided equally between the state and the local government that brought the suit. The state shall deposit its recovery to the credit of the used oil recycling fund. (c) The penalty imposed by this section does not apply to failure to file a report under sec.325.1145(c)(2) of this title (relating to Used Oil Collection Centers) or sec.325.1147(b)(1) of this title (relating to Registration and Other Requirements for Persons Involved in the Transportation, Marketing, or Recycling of Used Oil). (d) The Texas Department of Health, a local government in whose jurisdiction the violation occurs, or the state may bring suit to recover a penalty under this section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 9, 1991. TRD-9115467 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 1, 1992 Proposal publication date: October 8, 1991 For further information, please call: (512) 458-7271 TITLE 28. INSURANCE Part II. Texas Workers' Compensation Commission Chapter 110. General Provisions-Required Notice of Coverage Subchapter B. Employer Notices 28 TAC sec.110.106 The Texas Workers' Compensation Commission adopts an amendment to sec.110. 106, concerning notice of coverage status required to be given to new employees, with changes to the proposed text as published in the September 13, 1991, issue of the Texas Register (16 TexReg 5054). The amendment adds a definition of "new employee" that tracks federal law and regulations requiring filing of tax and immigration status information to exclude those employees not considered to be "new employees" by the federal government, and deletes the requirement of personal notice for employees recruited in Texas to work outside Texas, if the notice is posted at the place of hire and the actual workplace. The amendment is adopted pursuant to a rule- making petition submitted on behalf of certain employers, for the purpose of reducing the expense of administering the notice provisions of the section as originally adopted. The section is changed to more accurately cite the titles of the federal forms required to be filed for new employees. Public comment was received in writing. One commenter suggested more accurately citing the federal forms. The commissioners agree, and amend the section accordingly, as noted previously. One commenter suggested defining "new employee" to exclude an employee recruited in Texas to work outside Texas if the recruit is hired and completes the federal forms outside Texas, since "there is no need of coverage" to be given to such an employee. The commissioners disagree with this suggestion, and retain the requirement of notice of coverage status to recruits, since Texas Civil Statutes, Article 8308-3.15 expressly covers a recruit who has significant contacts with Texas within one year following the date of hire. One commenter suggested changing subsection (d)(2) to define the requirements for posting notice of coverage as those established by the Act. The commissioners disagree with this suggestion and retain the specific requirement of posting both at the place of hire and the workplace. This is to increase the likelihood of actual notice to Texas recruits, who will no longer receive personal notice. Comments against the amended section were received from Southwestern Bell Telephone and the law firm of Thelen, Marrin, Johnson & Bridges. No comments were specifically in favor of the proposed section were received. The amendment is adopted under Texas Civil Statutes, Article 8308-2.09(a), which authorize the commissioners to adopt rules necessary to implement and enforce the Texas Workers' Compensation Act. sec.110.106. Employer's Notice to New Employees. (a)-(b) (No change.) (c) For the purposes of this rule, the term "new employee" means an employee who: (1) is required by federal law to complete both a W-4 form and an I-9 form; or (2) has a break in service with an employer and is required by federal law to complete a W-4 form on the first day the employee reports back to duty for the employer. (d) For the purposes of this rule, the term "new employee" excludes an employee recruited in Texas to perform services outside Texas if: (1) the place of hire is outside Texas; and (2) the notice of coverage is posted at conspicuous locations at the place of hire and at the place of business where the employee performs the services as necessary to provide reasonable notice to the employee. (e) The commission strongly encourages each employer to keep a copy of the notice provided to each employee under this rule. The copy may be signed and dated by the employer and the new employee. (f) An employer who does not furnish the notice required by this rule may be assessed an administrative penalty, not to exceed $500, under the Texas Workers' Compensation Act, sec.3.24. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1991. TRD-9115553 Susan M. Kelley General Counsel Texas Workers' Compensation Commission Effective date: December 31, 1991 Proposal publication date: September 13, 1991 For further information, please call: (512) 440-3972 Chapter 143. Dispute Resolution-Review by the Appeals Panel 28 TAC sec.143.3 The Texas Workers' Compensation Commission adopts an amendment to sec.143.3, concerning procedures for requesting review of a hearing officer's decision by the commission's appeals panel, with changes to the proposed text as published in the September 27, 1991, issue of the Texas Register (16 TexReg 5317). The amendment, which establishes a presumed date of receipt of the request, is necessary because the date of receipt, by law, establishes a time frame for action by the appeals panel. The section is changed by adding clarifying language in subsection (c)(1); and, in subsection (c)(2), by tying the presumed date of receipt of the request for appeal to the date of receipt of the hearing officer's decision, instead of the date of mailing. Public comment was received in writing. The commenter generally endorsed the five-day time period for presuming delivery through the United States mail. The commenter suggested permitting delivery of the request by fax, in addition to personal delivery and United States mail. The commissioners disagree with this suggestion for two reasons. First, the appeals panel wishes to maintain legal standards similar to those of the courts, and the courts do not accept filing by fax. Second, faxing would not provide any more time to prepare the request, since the rule, as amended, would allow a party to mail the instrument on the last day provided by law, and still be presumed to have filed timely if it is received five days later. Comment against the proposed section was received from the Alliance of American Insurers. No comments specifically in favor of the proposed section were received. The amendment is adopted under Texas Civil Statutes, Article 8308-2.09(a), which authorize the commissioners to adopt rules necessary to implement and enforce the Texas Workers' Compensation Act. sec.143.3. Requesting the Appeals Panel to Review the Decision of the Hearing Officer. (a)-(b) (No change.) (c) A request made under this section shall be presumed to be timely filed or timely served if it is: (1) mailed on or before the 15th day after the date of receipt of the hearing officer's decision, as provided in subsection (a) of this section; and (2) received by the commission or other party not later than the 20th day after the date of receipt of the hearing officer's decision. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 27, 1991. TRD-9115552 Susan M. Kelley General Counsel Texas Workers' Compensation Commission Effective date: December 31, 1991 Proposal publication date: September 27, 1991 For further information, please call: (512) 440-3972 Chapter 144. Dispute Resolution-Arbitration Subchapter A. Procedures 28 TAC sec.sec.144.1-144.16 The Texas Workers' Compensation Commission adopts new sec. sec.144.1-144.16, concerning arbitration. Sections 144.4 and 144.5 are adopted with changes to the proposed text as published in the October 1, 1991, issue of the Texas Register (16 TexReg 5387). Sections 144.1-144.3, and 144.6-144.16 are adopted without changes and will not be republished. The new sections are necessary to provide procedures for parties seeking to resolve workers' compensation disputes by binding arbitration. As required by the Texas Workers' Compensation Act, arbitration will be available as an alternative to the benefit contested case hearing as of January 1, 1992, for disputes involving insures occurring on or after January 1, 1991. New sec.144.1 defines the duties and scope of authority of commission arbitrators. New sec.144.2 prohibits ex parte communications between the arbitrator and any party to the arbitration proceeding except on procedural matters, and establishes a penalty for noncompliance. New sec.144.3 requires a party to deliver copies of all documents filed with the arbitrator to all other parties, defines three acceptable manners of delivery, and requires proof of delivery to be sent to the arbitrator. New sec.144.4 prescribes the procedure and time limit for notifying the commission of a mutual agreement to elect arbitration instead of a benefit contested case hearing; permits a party to file a response to the benefit review officer's report; and provides that the election is binding and irrevocable. The section is changed by amending subsection (d) to explain more clearly the consequences of electing to engage in arbitration. New sec.144.5 describes procedures for delineating the disputes to be arbitrated, i.e., those identified as unresolved in the benefit review officer's report, and those submitted by unanimous consent. The section is changed by deleting the provision in subsections (b)(4) and (d) for unilateral submission of disputed issues by permission of the arbitrator. New sec.144.6 describes procedures for the commission to assign an arbitrator and notify the parties, and prescribes procedures and time limits for striking an assigned arbitrator. New sec.144.7 requires the arbitrator to schedule the arbitration proceeding to be held within 30 days of assignment, to notify the parties in writing, and, absent a determination of good cause, to conduct the arbitration within 75 miles of the claimant's residence at the time of injury. New sec.144.8 permits the arbitrator to use certain expediting procedures. New sec.144.9 requires each party, no later than seven days before the arbitration, to exchange with the other party and file with the arbitrator all documentary evidence and a proposal for resolving the disputed issues; and establishes a penalty for noncompliance. New sec.144.10 permits the parties to enter into stipulations, and to resolve disputes by agreement or settlement. New sec.144.11 prescribes the procedure for requesting a continuance not to exceed 30 days, requires proof of good cause, and limits continuances to one per party. New sec.144.12 establishes an administrative penalty for failing to attend an arbitration proceeding without good cause. New sec.144.13 defines the rights of the parties, including the right to be present; the right to have all relevant evidence hears; the right to present one's position on each disputed issue; the right to be represented; the right to call and cross-examine witnesses; and the right, under certain conditions, to have a stenographic record made. New sec.144.14 describes the usual order of proceedings during the arbitration. New sec.144.15 requires the arbitrator, within seven 1st of the 1st day of the proceeding, to enter the final award and send it to the parties; provides that the award is a final, binding order of the commission; and permits the arbitrator to retain jurisdiction for 20 days after the award date to correct clerical errors. New sec.144.16 permits a party or the employer to request, and receive at cost, a copy of the arbitrator's audiotape record. Public comment was received in writing. Concerning both sec.144.4 and sec.144.5, one commenter suggested changing the term "disputes" to "issues" or "disputed" issues," the terms used in the Act. The commenter noted that, although not entirely clear, the legislature may have intended "issues" to be defined more broadly than "disputes." The commission disagrees with the suggested changes, since sec.140.1 of this title (relating to Definitions), defines the term "benefit dispute" as "a disputed issue arising under the Texas Workers' Compensation Act (the Act) in a workers' compensation claim regarding compensability or eligibility for, or the amount of, income or death benefits." The commission notes that the definitions used in these sections should relate to the same definitions used in other forms of dispute resolution. Concerning sec.144.4, one commenter suggested changing subsection (d) of the section by inserting after "irrevocable" the statutory language "for the resolution of all disputes arising out of the claims that are under the jurisdiction of the commission." The commission disagrees with this suggestion, noting that there is no need to reiterate the statute in the rule; the commission does agree that the subsection should more clearly state the irrevocability of the election to engage in arbitration, and has amended it as noted previously. Concerning the provision in sec.144.5, relating to unilateral submission of new disputes with the permission of the arbitrator, one commenter suggested additionally requiring the arbitrator to "consider the effects of such a determination on the rights of the other party." The commission disagrees with this comment, noting that the arbitration process is to be used to resolve disputes which were previously unresolved in the benefits review conference, according to the statute. Another commenter suggested deleting all provisions for unilateral submission, noting that "the whole idea of the process of arbitration rests on mutual agreement. To allow a party to present disputes not previously agreed upon defeats the philosophy upon which arbitration is based." The commission agrees with the comment, and amends the section to delete proposed subsection (b)(4) and (d) of this section. Comments against sec.144.4 were received from the Texas Association of Business, and against sec.144.5, from the Alliance of American Insurers and the Texas Association of Business. No comments specifically in favor of the proposed sections were received. The new sections are adopted under Texas Civil Statutes, Article 8303-2.09(a), which authorize the commission to adopt rules necessary to implement and enforce the Texas Workers' Compensation Act, and 8308-6.24(c), which mandate adoption of rules for arbitration consistent with generally recognized arbitration principles and procedures. sec.144.4. Election to Engage in Arbitration. (a) Following a benefit review conference where one or more disputed benefit issue(s) remain unresolved, the parties may mutually agree to engage in arbitration on those issues. (b) Parties agreeing to engage in arbitration must complete and sign a commission-prescribed form, and file it with the Arbitration Section of the Division of Hearings not later than the 20th day after the last day of the benefit review conference. (c) A party may submit a response to the disputes identified as unresolved in the benefit review officer's report. The response shall: (1) be in writing; (2) describe and explain the party's position on the unresolved dispute or disputes; (3) be sent to the commission no later than 20 days after receiving the benefit review officer's report; and (4) be delivered to all other parties, as provided by sec.144.3 of this title (relating to Delivery of Copies of Documents). (d) Except as provided by sec.144.10 of this title (relating to Stipulations, Agreements, and Settlements), the decision to proceed with arbitration in place of a contested case hearing, once filed with the commission, is binding and irrevocable for the resolution of all disputes arising out of the claims that are under the jurisdiction of the commission. sec.144.5. Statement of Disputes. (a) Statement of disputes. The statement of disputes is a written description of the benefit dispute or disputes to be considered by the arbitrator. A dispute not expressly included in the statement of disputes will not be considered by the arbitrator. (b) Statement of disputes after a benefit review conference. The statement of disputes for an arbitration proceeding conducted after a benefit review conference includes: (1) the benefit review officer's report, identifying the disputes remaining unresolved at the close of the benefit review conference; (2) the parties' responses to the benefit review officer's report, if any; and (3) additional disputes by unanimous consent, as provided by subsection (c) of this section. (c) Additional disputes by unanimous consent. Parties may, by unanimous consent, submit for inclusion in the statement of disputes one or more disputes not identified as unresolved in the benefit review officer's report. Additional disputes submitted by consent shall: (1) be made in writing; (2) identify the dispute, and each party's position on it; (3) be signed by all parties; (4) be sent to the commission no later than 10 days before the arbitration proceeding; and (5) explain why the issue was not raised earlier. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1991. TRD-9115554 Susan M. Kelley General Counsel Texas Workers' Compensation Commission Effective date: December 31, 1991 Proposal publication date: October 1, 1991 For further information, please call: (512) 440-3972 TITLE 31. NATURAL RESOURCES Part II. Texas Parks and Wildlife Department Chapter 61. Design and Construction Beach Cleaning and Maintenance Assistance Program 31 TAC sec.sec.61.41-61.67 (Editor's Note: House Bill 1135, 72nd Legislature, 1991, transferred the administration of beach cleaning funds from the Texas Parks and Wildlife Department to the General Land Office.