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 1. ADMINISTRATION Part IV. Office of the Secretary of State Chapter 79. Corporations General Information and Correspondence 1 TAC sec.79.18 The Office of the Secretary of State adopts new sec.79.18 concerning the abandonment of a merger filed with a delayed effective date, with changes to the proposed text as published in the November 12, 1991, issue of the Texas Register (16 TexReg 7141). The only change to the rules as proposed was to substitute the word "inactive" in subsection (c)(B) for "non-active." The section was necessary to clarify the actions that the secretary of state will take to implement the delayed effective date provisions for mergers. Section 71.18 specifies that the computer records of the secretary of state will be changed at the time of filing when a merger is submitted with a delayed effective date or condition. In addition, the section explains what actions will be taken by the secretary of state to record an abandonment of the merger and what actions are required by the parties to the abandoned merger. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Business Corporation Act, Article 9.03, which provides the Office of the Secretary of State with the authority to enable the secretary to administer the Act and the carry out the duties imposed by the Act. sec.79.18. Mergers with Delayed Effective Dates. (a) Upon the filing of a merger with a delayed effective date, the computer records of the secretary of state will be changed to show the filing of the merger, the date of the filing, the future date on which the merger will be effective or a code indicating that the effectiveness is based on a future condition, and the name of the surviving entity or entities. In addition, at the time of such filing: (A) the status of any entities on file with the secretary of state merging out of existence will be changed from active to inactive; (B) the status of any entities, if any, to be created and filed with the secretary of state by the terms of the plan of merger shall appear in the active records of the secretary of state; and (C) any amendments to the articles of incorporation of the surviving entity or entities, if any, will be recorded in the records of the secretary of the state. (b) Upon filing of the merger: (A) the names of any entities on file with the secretary of state which are merging out of existence will not appear in the active records and will not be a bar to reservation or registration of an entity name or creation of an entity under a name which is the same as, deceptively similar to, or similar to the name of the merging entity; (B) the names of any entities to be created and filed with the secretary of state by the terms of the plan of merger will appear in the active records of the secretary of state and will be a bar to reservation or registration of any entity name or creation of an entity under a name which is the same as, deceptively similar to, or similar to the names of the entities to be created by the plan of merger; and (C) if the plan of merger provides for a change of name of any of the surviving entities on file with the secretary of state, the new names of the entities will appear in the active records of the secretary of state and will be a bar to reservation or registration of any entity name or creation of an entity under a name which is the same as, deceptively similar to, or similar to any new name of the entities as provided by the plan of merger. (c) If a plan of merger is abandoned in accordance with a statutory provision for abandonment, the secretary of state: (A) will change the status of the entities filed with the secretary of state which would have merged out of existence to active on the computer records of the agency and record the filing of the abandonment. If the names of these entities are not available, the entities must file articles of amendment or take other action to change the entity name or bring the name into compliance with applicable statutory provisions as a condition to acceptance of the abandonment; and (B) will change the status of all entities that would have created and filed with the secretary of state by the terms of the plan of merger to inactive on the computer records of the agency. 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 January 13, 1992. TRD-9200751 Lorna Wassdorf Special Assistant Office of the Secretary of State Effective date: February 7, 1992 Proposal publication date: December 13, 1991 For further information, please call: (512) 463-5586 TITLE 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 27. Aquaculture Regulations 4 TAC sec.sec.27.1-27.7, 27.21-27.25, 27.102 The Texas Department of Agriculture (TDA) adopts amendments to sec.sec.27. 1- 27.6, 27.21-27.25 and 27.102 and new sec.27.7. Sections 27.1, 27.2, and 27.6 are adopted with changes to the proposed text as published in the October 8, 1991, issue of the Texas Register (16 TexReg 5547). Sections 27.3-27.5, 27.7, 27.21-27.25 and 27.102 are adopted without changes and will not be republished. The amendments are adopted to make the department's aquaculture regulations consistent with the amended definitions and other new provisions of Senate Bill 977, 72nd Legislature, 1991, and to establish new license and renewal fees. New sec.27.7 is adopted to establish procedures for suspension of licenses. In order to clarify in sec.27.1 that all aquaculture facilities, both public and private, need aquaculture licenses, the department has added the definition of "aquaculture facility". The definition of "private facility" has been deleted, as a private facility would be included in the more general definition of "aquaculture facility". Also, to be consistent with the deletion of the definition of "private facility", the definition of "aquaculture or fish farming" has been changed. In sec.27.2 subsections (a) and (b) have been combined to clarify that all aquaculture facilities, both public and private, must be licensed to operate. In sec.27.6 subsection (a) has been changed to clarify that records must be kept only for those species regulated by a bag, possession or size limit. The amendments and new section, as adopted, make the sections consistent with amendments made by Senate Bill 977, 72nd Legislature, 1991; clarify record keeping and licensing requirements and procedures; establish new licensing and renewal fees; and provide for suspension of an aquaculture license by the department. Comments on the amendments and new section were received from the Texas Aquaculture Association. The association was generally supportive of the amendments and new section, but did request clarification of who was required to be licensed. The department made changes to sec.27.1 and sec.27.2 based upon the association's comments. The amendments and new section are adopted under the Texas Agriculture Code, Chapter 134, sec.134.005(a), which requires the department to adopt rules to carry out the aquaculture program. sec.27.1. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Aquaculture or fish farming-The business of producing and selling cultured species raised in aquaculture facilities. Aquaculture facility -A pond, tank, cage, or other structure capable of holding cultured species in confinement wholly within or on private land or water, or within or on permitted public land or water. Aquaculturist or fish farmer-Any person licensed to engage in aquaculture or fish farming. Cultured species -Aquatic plants or animals raised under conditions where at least a portion of their life cycle is controlled by an aquaculturist. Exotic species -A nonindigenous plant or animal not normally found in the public waters of this state. Owner-An aquaculturist operating a facility licensed by the department. sec.27.2. Aquaculture License Required. A person may not operate an aquaculture facility, including a facility engaged in the business of producing and selling cultured species for bait purposes, without first having acquired from the department an aquaculture license. sec.27.6. Records. (a) The holder of an aquaculture license or a fish farm vehicle license shall make and keep records on the licensed premises or vehicle showing purchases or other acquisitions, sales, and shipments of cultured species regulated by a bag, possession or size limit for a period of three years from such event. (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 January 16, 1992. TRD-9200785 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: February 7, 1992 Proposal publication date: October 8, 1991 For further information, please call: (512) 463-7583 4 TAC sec.sec.27.12-27.16 The Texas Department of Agriculture adopts the repeal of sec.sec.27.12-27.16 concerning fish farm regulations, without changes to the proposed text as published in the October 8, 1991, issue of the Texas Register (16 TexReg 5548). The sections are repealed to reflect the repeal of the Texas Agriculture Code sec.134.002(3) during the 72nd Legislative Session (1991), and to eliminate duplication of regulation of cultured fish processing plants by TDA and the Texas Department of Health. The repeal of sec.sec.27.12-27.16 deletes from Chapter 27 regulations concerning licensing of cultured fish processing plants by TDA and recordkeeping requirements imposed on such facilities by TDA. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Agriculture Code, Chapter 134, sec.134. 005(a) which provides the Texas Department of Agriculture with the authority to adopt rules to carry out the aquaculture program. 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 January 16, 1992. TRD-9200786 Dolores Alvardo Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: February 7, 1992 Proposal publication date: October 8, 1991 For further information, please call: (512) 463-7583 TITLE 7. BANKING AND SECURITIES Part VI. Credit Union Department Chapter 91. Chartering, Operations, Mergers, Liquidations Loans 7 TAC sec.91.701 The Credit Union Commission adopts an amendment to sec.91.701(d)(6), concerning the giving of prior notice for engaging in indirect financing of automobiles and other chattels, without changes to the proposed text as published in the December 10, 1991, issue of the Texas Register (16 TexReg 7067). The required notice enacted by the rule enables the department to better monitor credit unions becoming involved in indirect financing of collateral on loans. A credit union planning to engage in indirect financing will have to provide prior written notice of its plans to the department. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 2461-11.07, which provide the Credit Union Commission with the authority to adopt reasonable rules necessary for the administration of the Texas Credit Union Act. 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 January 17, 1992. TRD-9200897 John R. Hale Commissioner Credit Union Department Effective date: February 11, 1992 Proposal publication date: December 10, 1991 For further information, please call: (512) 837-9236 TITLE 22. EXAMINING BOARDS Part XX. Texas Board of Private Investigators and Private Security Agencies Chapter 460. Application Processing and Refunds 22 TAC sec.460.1 The Texas Board of Private Investigators and Private Security Agencies adopts the repeal of sec.460.1 concerning processing of applications for a license, without changes to the proposed text as published in the October 18, 1991, issue of the Texas Register (16 TexReg 5813). The board has determined that repeal of this section is in the public interest and is necessary to comply with the Administrative Procedures Act, Texas Civil Statutes, Article 6252-13b.1, sec.3, which sets forth specific guide-lines for the processing of applications. The repeal of this section will delete procedures which are not in conformance with the Administrative Procedures Act, Texas Civil Statutes, Article 6252- 13b.1, sec.3. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 4413 (29bb), which provide the Texas Board of Private Investigators and Private Security Agencies with the authority to promulgate all rules and regulations necessary in carrying out the provisions of this Act. 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 January 9, 1992. TRD-9200627 Clema D. Sanders Executive Director Texas Board of Private Investigators and Private Security Agencies Effective date: February 5, 1992 Proposal publication date: October 18, 1992 For further information, please call: (512) 463-5545 The Texas Board of Private Investigators and Private Security Agencies adopts new sec.460.1 concerning acceptance for filing; defective applications, without changes to the proposed text as published in the October 18, 1991, issue of the Texas Register (16 TexReg 5813). The board has determined that adoption of this section is in the public interest and is necessary to comply with the Administrative Procedures Act, Texas Civil Statutes, Article 6252-13b.1, sec.3, which sets forth specific guidelines for the processing of applications. The new section sets forth guidelines for the acceptance of, processing of, and time limitations on applications. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 4413 (29bb), sec.11, which provide the Texas Board of Private Investigators and Private Security Agencies with the authority to promulgate all rules and regulations necessary in carrying out the provisions of this Act. 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 January 9, 1992. TRD-9200628 Clema D. Sanders Executive Director Texas Board of Private Investigators and Private Security Agencies Effective date: February 5, 1992 Proposal publication date: October 18, 1991 For further information, please call: (512) 463-5545 Part XXIII. Texas Real Estate Commission Chapter 535. Provisions of the Real Estate License Act Licenses 22 TAC sec.535.95 The Texas Real Estate Commission adopts new sec.535.95, concerning license renewals, with changes to the proposed text as published in the November 29, 1991, issue of the Texas Register (16 TexReg 6900). The new section is necessary for the commission to comply with House Bill 1393, 72nd Legislature, 1991, which requires state agencies issuing licenses to adopt rules to exempt a licensee from increased fees or other penalties for failure to renew a license if the licensee was on active duty in the United States armed forces serving outside the State of Texas. On final adoption the section was revised to clarify that copies of official orders or other official documentation must be furnished by the licensee to show active duty outside the state and that any real estate salesman annual education requirements would be deferred until the next renewal of the license. The new section is also necessary for the commission to comply with the Texas Education Code, sec.57.491, which requires adoption of any rules necessary to carry out the commission's duties with regard to licensees who have defaulted on a loan or repayment agreement with the Texas Guaranteed Student Loan Corporation (TGSLC). The new section requires the commission to provide notice and an opportunity for a hearing before declining to renew a license under the provisions of the Texas Education Code. The commission is also required by the new section to advise licensees in renewal notices and license application forms that default on a loan guaranteed by the TGSLC may prevent a subsequent renewal of a license. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which provide the Texas Real Estate Commission with the authority to make and enforce all rules and regulations necessary for the performance of its duties. sec.535.95. Miscellaneous Provisions Concerning License Renewals. (a) A licensee on active duty in the United States armed forces serving outside the State of Texas may renew an expired license without being subject to any increase in fee, any education or experience requirements, or examination if the licensee: (1) provides a copy of official orders or other official documentation acceptable to the commission showing that the licensee was on active duty outside the state during the licensee's last renewal period; (2) applies for the renewal within 90 days after the licensee's active duty ends; and (3) pays the renewal application fee in effect when the previous license expired. (b) Salesman annual education (SAE) requirements that would have been imposed for a timely renewal shall be deferred under this section to the next renewal of the license. (c) Renewals of licenses issued by the commission are subject to the policies established by the Texas Education Code, sec.57.491. Before the commission declines to renew a license due to a default on a loan guaranteed by Texas Guaranteed Student Loan Corporation (TGSLC), a default on a repayment agreement with TGSLC, or a failure to enter a repayment agreement with TGSLC, the commission shall give notice and provide an opportunity for a hearing in accordance with the provisions of Texas Civil Statutes, Article 6252-13a, sec.18. The commission shall advise licensees in renewal notices and license application forms that default on a loan guaranteed by the TGSLC may prevent a subsequent renewal of a license. 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 January 17, 1992. TRD-9200865 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: February 11, 1992 Proposal publication date: November 29, 1991 For further information, please call: (512) 465-3900 Licensed Real Estate Inspectors 22 TAC sec.535.212 The Texas Real Estate Commission adopts new sec.535.212, concerning the education and experience requirements for a license as a real estate inspector or inspector-in-training, with changes to the proposed text as published in the November 5, 1991, issue of the Texas Register (16 TexReg 6258). The new section is necessary to establish guidelines for the acceptance of core real estate inspection courses to satisfy the education requirements specified in Texas Civil Statutes, Article 6573a, sec.23(d). On final adoption, the section was revised to clarify that the commission may approve a provider and the provider's courses in the manner set out for real estate core courses in sec.535.66, or the commission may accept for licensing purposes courses which are offered by other providers, such as those approved and regulated by other agencies of this state. The section also was revised to extend acceptance to courses offered by a unit of federal, state, or local government and to set a minimum class length at two hours on the recommendation of the Texas Real Estate Inspector Committee, an advisory committee of real estate inspectors which developed the proposed rule. The new section also provides guidelines for measuring experience required by law for a license. No changes were made in those provisions of the new section relating to satisfaction of experience requirements. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which provide the Texas Real Estate Commission with the authority to make and enforce all rules and regulations necessary for the performance of its duties. sec.535.212. Education and Experience Requirements for a License. (a) The commission shall accept a course of study to satisfy educational requirements for licensing if the course meets the requirements of this section. (b) The commission may accept courses submitted by applicants for a real estate inspector-in-training or a real estate inspector license upon a determination of the commission that: (1) the course was devoted to a subject or subjects named in the Real Estate License Act (the Act), sec.23(a)(3); and (2) the course was offered by an accredited college or university, by a school accredited by the commission or by a real estate or inspector regulatory agency of another state, by a professional trade association, or by a unit of federal, state, or local government, or the course was approved and regulated by an agency of this state. (c) After November 1, 1991, a course must also meet the following requirements. (1) The applicant must have received in a classroom presentation the hours of instruction for which credit was given. (2) The applicant must have successfully completed a final examination for course credit. (3) If the course was offered by a trade association, the course must have been approved and regulated by an agency of this state. (d) For the purposes of this section, a professional trade association is a nonprofit, cooperative, and voluntarily joined association of business or professional competitors that is designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting the common interest of its members. (e) The commission may require an applicant to furnish materials such as course outlines, syllabi, course descriptions, or official transcripts to verify course content or credit. The minimum class length shall be no less than two hours. (f) Correspondence courses may be accepted by the commission under the following conditions. (1) The course must have been offered by an accredited college or university which offers correspondence programs in other disciplines. (2) Successful completion of a written examination administered to positively identified students at a location and by an official approved by the college or university must be required for course credit. (3) The content and length of the course must meet the requirements established by this section. (g) The commission shall periodically publish guidelines as to the acceptability of courses which have been approved by the commission. Except as may be specifically provided to the contrary in this section, the review and acceptance of courses or the approval of providers and courses submitted to satisfy educational requirements for inspector licensing shall be conducted by the commission, in the manner prescribed by sec.535.61 of this title (relating to Examinations) and sec.535.66 of this title (relating to Educational Programs: Accreditation). (h) Course providers other than those approved by the commission may obtain a determination of the acceptability of a course by submitting the following items to the commission: (1) a course description; (2) a copy of any textbook, course outline, syllabus, or other written course material provided to students; and (3) a copy of the written final examination which measures a student's mastery of the course. (i) For the purpose of determining the number of inspections required for a license, the commission shall consider an improvement to real property to be any unit which is capable of being separately rented, leased, or sold. An inspection report for such a unit which includes the structural and equipment/systems components of the unit shall constitute a single inspection. Half credit shall be given for an inspection limited to structural components only or equipment/systems only; provided, no more than 80% of the inspections submitted for experience credit may be limited to structural only or equipment/systems only. A single report which covers two or more units shall be considered a single inspection. Applicants who claim experience for oral inspection reports must be able to verify that an inspection was performed by file memoranda or other documentation. Inspectors-in-training and inspectors may not receive experience credit for an inspection performed by an apprentice under their supervision. 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 January 17, 1992. TRD-9200864 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: February 11, 1992 Proposal publication date: November 5, 1991 For further information, please call: (512) 465-3900 Licensed Real Estate Inspectors 22 TAC sec.535.216, sec.535.218 The Texas Real Estate Commission adopts new sec.535.216 and sec.535.218, concerning licensed real estate inspectors, without changes to the proposed text as published in the November 29, 1991, issue of the Texas Register (16 TexReg 6901). New sec.535.216 establishes a procedure for renewing a license or registration issued to a real estate inspector under the provisions of Texas Civil Statutes, Article 6573a, sec.23(f). The new section is necessary to provide an orderly process for renewal of licenses and registrations. The new section also clarifies that renewal applications filed after expiration of the license or registration are subject to an increased fee under the law and that an applicant whose license has expired must receive a new license or registration certificate in order to resume practice. New sec.535.218 relates to the continuing education required for renewal of an inspector or inspector-in-training license. The section is necessary to establish guidelines for the acceptance of continuing education courses. Courses would be subject to sec.535.212, which permits courses offered by a variety of providers to be accepted by the commission. Courses must be completed during the 12-month period immediately preceding the expiration date of the license, and credit cannot be given twice for the same course within the 12-month period. The section also requires an inspector who files a renewal application after expiration to complete any continuing education that would have been required for a timely renewal. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which provide the Texas Real Estate Commission with the authority to make and enforce all rules and regulations necessary for the performance of its duties. 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 January 17, 1992. TRD-9200866 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: February 11, 1992 Proposal publication date: November 29, 1991 For further information, please call: (512) 465-3900 TITLE 25. HEALTH SERVICES Part VIII. Interagency Council on Early Childhood Intervention Chapter 621. Early Childhood Intervention Program Early Childhood Intervention Service Delivery The Interagency Council on Early Childhood Intervention (ECI) adopts amendments to sec.sec.621.22-621.26, 621.28, 621.41, 621.42, and 621.44, concerning the Early Childhood Intervention Program. Sections 621.22-621.25 and 621.41 are adopted with changes to the proposed text as published in the August 9, 1991, issue of the Texas Register (16 TexReg 4328). Sections 621.26, 621.28, 621.42, and 621.44 are adopted without changes and will not be republished. The amendments correct citations, clarify language, improve consistency, and modify language to reflect more respect for the dignity of individuals with developmental delays. The following comments were received during the comment period. COMMENT: Several commenters requested that a definition of "child find" be added to state regulations. RESPONSE: The Council concurs and added a definition which is consistent with federal regulations. COMMENT: In the definition of "Council" the Public Law number "99-457" has been changed by reauthorization to Public Law number "101-476". RESPONSE: The Council concurs and has amended Public Law number 99-457 in the definition and in all sections where the Public Law number is used. COMMENT: Several commenters requested that a definition of "public health clinic" be added to state regulations. RESPONSE: The Council concurs and added a definition of "public health clinic". COMMENT: The definition of "Texas Department of Mental Health and Mental Retardation (TDMHMR)" has been changed by the Texas State Legislature to "Texas Mental Health and Mental Retardation (TXMHMR)". RESPONSE: The Council concurs and has changed the definition and in all sections where "Texas Department of Mental Health and Mental Retardation (TDMHMR) " is used. COMMENT: In the definition of "Family Educational Rights and Privacy Act of 1994", the date of adoption is incorrect. RESPONSE: The Council agrees that the date is incorrect and it has been changed to "1974". COMMENT: One commenter stated that in the definitions of "Developmental delay" and "Evaluation" the language is not consistent with the language that was added in other sections. RESPONSE: The Council agrees and has changed the language in the definitions and in all sections where it is used. COMMENT: Concerning sec.621.22, a commenter suggested that the definition of "Interdisciplinary Team" should be revised to apply to all times in which a team is required. The current definition applies only to the individualized family service plan (IFSP) team. RESPONSE: The Council concurs and has changed the definition. COMMENT: Concerning sec.621.22, a commenter requested that the term "service coordinator" be used in all sections where "case manager" is currently used. RESPONSE: The Council concurs, and has changed the term to "service coordinator" in the definition and in all sections where "case manager" is used. COMMENT: In the definition of "Services" an editorial change was requested to correct the reference "sec.621.23 (d)(4)" to reflect a change in the section structure. RESPONSE: The Council agrees and has corrected the reference in the definition and in all sections where the reference is used. COMMENT: Concerning the definition of "Surrogate Parent", one commenter stated that the last phrase in the definition is not understandable and it appeared to relate to legal custody issues. RESPONSE: The Council agrees and has changed the definition to clarify the rules. COMMENT: The Council requested an editorial change to replace the phrase "handicapped children" with "children with developmental delays" to be consistent through out the rules. RESPONSE: The rules have been changed in all sections where the phrase "handicapped children" was used. COMMENT: Concerning sec.621.23 (1)(D)(i)(II), five commenters suggested that a broader group of professionals be listed as qualified to identify attachment disorders. Commenters stated that individuals with Masters in Social Work should be listed as qualified professionals to identify attachment disorders. Three commenters said that qualified personnel should include social workers, counselors, special educators, early childhood specialists, child life specialists, and other related therapists/specialists who have demonstrated at least 100 hours of infant family mental health training theory and practice and family mental health training in theory and practice and who have had ongoing supervision. RESPONSE: The Council concurs that there are other qualified professionals who can identify "attachment disorders." The list included in the rules is not exhaustive. No change in proposed rules. COMMENT: Concerning sec.621.23(1)(D)(ii)(v), a commenter stated that severe attachment disorders should not be omitted from the eligibility criteria. One commenter stated that "attachment disorders" should be listed under "atypical behavior" and not under "medical diagnosis." RESPONSE: The Council agrees that severe attachment disorders should be listed under atypical behaviors as a criteria for eligibility. This has been specified in the fiscal year 92 policy manual. No change in proposed rule. COMMENT: Concerning sec.621.23(1)(D)(ii)(VII), three commenters expressed concern that infants who were prenatally exposed to drugs or alcohol would not be eligible to receive services if "prenatal exposure to cocaine and crack" and "fetal alcohol syndrome" were removed from the list of medical diagnoses contained in the rules. COMMENT: Another commenter stated that excluding "infants prenatally exposed to cocaine and crack" because it was not a medical diagnosis would make it difficult to classify many infants who need services as eligible. The commenter was concerned that many infants needing services would not qualify under the "atypical behavior" category and therefore would not be able to receive services until a delay was identified. The commenter was concerned that this action was inconsistent with ECI's value of prevention and early intervention. RESPONSE: The Council shares the commenters' concerns that all infants are admitted to ECI as early as possible. "Fetal alcohol syndrome" is a medical diagnosis under International Classification of Disease Volume 9 (ICD-9) and was not removed from the listing of criteria in the rules. In the future the diagnosis of "drug withdrawal syndrome" and "drug addiction" will be added to the listing in the rules since they represent medical diagnoses under ICD-9. The intent of this policy clarification was not to change the eligibility criteria to exclude infants who have a diagnosis related to prenatal exposure. "Prenatal exposure" is not a diagnosis and in a future posting should be removed from this category in the rules. The Council believes that all children prenatally exposed to drugs who are in need of services could be classified under one of the diagnoses or one of the "atypical behavior" categories by a qualified professional and therefore be eligible for services. COMMENT: Concerning sec.621.23 (4)(A), two commenters requested that ECI reduce the requirements for physical examinations and allow a nurse to perform a nursing assessment to meet the health admission requirement. One commenter felt that it was difficult getting families to keep appointments for physical examinations and that pediatric nurse practitioners were difficult to locate and required high salaries. RESPONSE: The Council does not feel that a nursing assessment can be substituted for the physical examination requirement. In order to ensure that the highest standard in the state is applied, the Council has determined that only an advanced pediatric nurse practioner/clinician or a registered nurse in a public health clinic with appropriate education and experience can perform the physical examination. The language has been changed to clarify the requirements for the physical examination. The definition of public health clinic has been added to help clarify the requirements for the physical examination. COMMENT: Concerning sec.621.23(4)(A), three commenters suggested that the requirement to have a medical examination 90 days prior to the IFSP or 30 days after the IFSP would result in families being required to have an examination which was beyond the schedule recommended by the American Academy of Pediatrics. One commenter suggested that the guidelines for pediatric health exams be followed. RESPONSE: The Council does not intend to require more frequent examinations than those recommended by the American Academy of Pediatrics. The language has been changed to clarify the requirements for medical examinations. COMMENT: Concerning sec.621.23 (5)(E)(iii), a commenter expressed support for the delivery of services in natural environments. The commenter endorsed use of language that emphasizes the importance of providing services where children without handicapping conditions are found. RESPONSE: The Council expressed its appreciation for this support. COMMENT: Concerning sec.621.24(c)(13)(A), 14 commenters suggested that all staff including contracted staff who work directly with children should be required to receive training in first aid and have certification in cardiopulmonary resuscitation for children and infants to ensure safety. RESPONSE: The Council concurs and has retained the original language in sec.621.24(c)(13)(A), and has clarified further by deleting sec.621.24(8)(A). COMMENT: Concerning sec.621.24(10)(D), the ECI staff requested an editorial change to clarify what type of training was required. RESPONSE: The Council agrees and has added language to clarify the rules. COMMENT: Concerning sec.621.25(e)(1), the Council requested a grammatical change that would clarify the intent of the paragraph. RESPONSE: The language has been changed to clarify the rules. COMMENT: Concerning sec.621.41(f)(3) (e)(E), one commenter requested that the word "handicapped" be deleted from this section in order to be consistent with federal regulation language. RESPONSE: The Council concurs and the word "handicapped" has been deleted. The following associations and agencies offered comments during the comment period: the Early Childhood Interagency Council of Metropolitan Dallas; Richardson Development Center, Richardson; Mental Health and Mental Retardation (MHMR) Center, Dallas; Southwestern Medical Center at Dallas; and Dallas County MHMR-Parent Infant Training Center, Dallas. The agencies and centers generally supported the amendments but offered some recommendations for change. 25 TAC sec.sec.621.22-621.26, sec.621.28 The amendments are adopted under the Human Resource Code sec.73.003, which provides the Interagency Council on Early Childhood Intervention with the authority to establish rules regarding services provided for children with developmental delays. sec.621.22. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Child find-Activities and strategies designed to locate and identify, as early as possible, infants and toddlers with developmental delay. Complaint-A formal written allegation submitted to the Council stating that a requirement of Public Law 101-476, or an applicable federal and/or state regulation has been violated. Council-The entity designated as the lead agency by the governor under Public Law 101-476. The Council has the final authority and responsibility for the administration, supervision, and monitoring of programs and activities under this system. The Council has the final authority for the obligation and expenditure of funds and compliance with all applicable laws and rules. The Council by the commissioner of each of the following agencies: the Texas Department of Health, the Texas Department of Human Services, Texas Mental Health and Mental Retardation, the Texas Education Agency, and a governor of the State of Texas. Developmental delay -A significant variation in normal development in one or more of the following areas as measured and determined by appropriate diagnostic instruments and procedures administered by an interdisciplinary team and by informed clinical opinion: cognitive development; physical development, including vision and hearing, gross and fine motor skills, and nutrition status; communication development; social and emotional development; and adaptive development or self-help skills. (A)-(B) (No change.) Evaluation-The procedures used by appropriate qualified personnel to determine the child's initial and continuing eligibility, consistent with the definition of infants and toddlers with developmental delay, including determining the status of the child in areas of cognitive development, physical development, communication development, social-emotional development and adaptive development, or self-help skills. Family Educational Rights and Privacy Act of 1974 (FERPA)- Requirements for the protection of parents and children under the General Education Provisions Act, sec.438, which include confidentiality, disclosure of personally identifiable information, and the right to inspect records. Interdisciplinary team -The child's parent(s) and a minimum of two professionals from different disciplines who meet to share evaluation information, determine eligibility, assess needs, and develop the individualized family service plan (IFSP). The team must include the service coordinator who has been working with the family since the initial referral or the person responsible for implementing the IFSP and a person directly involved in conducting the evaluations and assessments. Public health clinic-Any clinic that provides pediatric physical examinations and receives public funding from federal, state, city, or county governments. Services-Individualized intervention services, as determined by the interdisciplinary team and listed in the IFSP. Services are further defined in sec.621.23(5)(C)-(E) of this title (relating to Service Delivery Requirements). Service coordinator (case manager)-A staff person who is assigned to a child/family who is the families, and who is responsible for assisting and empowering families in accessing services and coordinating those services. Surrogate parent -An assigned to take the place of a parent for the purposes of this chapter when no parent can be identified or located or when the child is under managing conservatorship of the state. A surrogate chapter shall act to advocate for or represent the child, relating to the identification, evaluation, educational placement, and provision of Public Law 101-476, Part H services. TXMHMR-Texas Mental Health and Mental Retardation. sec.621.23. Service Delivery Requirements. Programs that receive Early Childhood Intervention Program (ECI) funds must have written policies and procedures which are implemented and evaluated in each of the following areas. (1) Client eligibility. The program must have written criteria for accepting children into the program. (A)-(B) (No change.) (C) If funding is available and all eligible children are being served in the state, the state ECI office can indicate that children at risk can also be served. Services may be provided to a child if the child is: (i) (No change.) (ii) over three years of age and ineligible for public school services. (D) Determination of eligibility shall be as follows. (i) Children whose development is delayed in one or more of the following areas: cognitive, physical development including vision and hearing, communication, social-emotional, self-help skills, or adaptive development must be determined eligible for: (I) (No change.) (II) determination of delayed or a typical development by a qualified professional (i.e., psychologist, occupational therapist, speech therapist, physical therapist, physician, etc.) in one of the following ways: (-a-)-(-c-) (No change.) (ii) Children who have a medically diagnosed physical or mental condition that has a high probability of resulting in developmental delay must be determined eligible by identification of specific conditions with known etiologies and developmental consequences, including, but not limited to: (I)-(IV) (No change.) (V) failure to thrive; (VI) (No change.) (VII) fetal alcohol syndrome or prenatal exposure to cocaine as evidenced by the medical diagnosis of drug withdrawal syndrome or drug addiction. (iii) (No change.) (2) (No change.) (3) Assessment and evaluation. The assessment and evaluation must be in accordance with the following criteria and procedures. (A)-(D) (No change.) (E) Child assessments and evaluations must include the following: (i) a review of the child's health and medical history and any other pertinent records including records of previous examinations and immunizations: (ii) an evaluation of the child's level of functioning in the following developmental areas: (I) (No change.) (II) physical development, including vision and hearing, gross and fine motor skills, and nutrition status; (III) communication development; (IV) social-emotional development; and (V) adaptive development or self-help skills; (iii)-(v) (No change.) (F) Identification of the family's concerns, priorities, and resources must be voluntary. If a family agrees, the identification must: (i) be designed to determine the concerns, priorities, and resources of the family related to enhancing the child's development; and (ii) be based on information provided by the family. (4) Health admission requirement. (A) Each child must have an examination by a physician, an advanced pediatric nurse practitioner/clinician, or a registered nurse in a public health clinic. The public health clinic may provide physical examinations by a physician who assumes the responsibility for the examination and agrees to be available routinely for consultation to nursing staff, ensures that the registered nurse has the training and adequate skills for performing the physical examination, and reviews periodically the level of performance of the registered nurses administering the physical examination. (B) If the child has received a physical examination in accordance with the periodicity schedule of the American Academy of Pediatrics, an additional examination is not required for admission. If the child has not received an examination as recommended in the American Academy of Pediatric schedule, a physical exam must be conducted within 90 days prior to enrollment or within 30 days following enrollment. (C) Children who will be participating in any ECI group activities must have immunizations appropriate to the child's age as recommended by the Texas Department of Health. If medical or religious reasons contraindicate immunization requirements, documentation to that effect must be maintained by the program and the family must be notified that their infant could be excluded from group activities if a contagious outbreak occurs. (5) Individualized family service plan (IFSP). An IFSP must be developed for each child and the child's family. (A) Procedures for development, review, and evaluation. (i) The IFSP must be written within 45 days of referral and be developed jointly by the family and appropriate qualified personnel. The IFSP must be based on assessment and evaluation information and include services necessary to enhance the development of the child and the capacity of the family to meet the child's special needs. No IFSP shall be implemented without prior written consent from the parent(s). (ii) If services are delivered by more than one provider, services must be jointly coordinated. (iii) Reviews of the IFSP must be conducted every six months (or more frequently if conditions warrant or the family requests such a review). The review may be carried out by a meeting or by other means acceptable to the parents and other participants. The purposes of the review are to determine: (I) the degree to which progress toward achieving the outcomes is being made; and (II) whether modification or revision of the outcomes or services is necessary. (iv) An annual meeting must be conducted to evaluate the IFSP for the child and family, and, as appropriate, to revise its provisions. Evaluation results and other information available from the ongoing assessment of the child and family may be used in determining what services are needed and will be provided. (v) IFSP meetings must be conducted: (I) in settings and at times that are convenient to families; and (II) in the native language or mode of communication used by the family. (vi) Meeting arrangements must be made with, and written notice provided to, the family and other participants early enough before the meeting date to ensure that they will be able to attend, unless waived by the parent. (B) IFSP participants. An interdisciplinary team must meet to establish eligibility and develop the initial IFSP. The interdisciplinary team must include the following participants: (i) the parent(s) of the child; (ii) other family members or child care persons, when requested by the parent; (iii) an advocate or person outside the family, when requested by the parent; and (iv) a minimum of two professionals from different disciplines. The team must include the service coordinator who has been working with the family since the initial referral or the person responsible for implementing the IFSP and a person directly involved in conducting the evaluations and assessments. (C) Required services. Individualized intervention services, as determined by the interdisciplinary team, must be provided to meet the developmental needs of the child, and the needs of the family related to enhancing the child's development. All services identified as needed for the child by the interdisciplinary team must be addressed in the IFSP. With concurrence of the family, all services identified as needed by the family, may be addressed in the IFSP. The array of services must include, but is not limited to, the following: (i) service coordination services; (ii) early identification, screening and assessment services, and the other early intervention services; (iii) medical services only for diagnostic or evaluation purposes; (iv) special instruction; (v) family education; (vi) home visits; (vii) speech and language therapy; (viii) audiology; (ix) occupational therapy; (x) adaptive equipment; (xi) physical therapy; (xii) psychological services; (xiii) family counseling; (xiv) social work services; (xv) health services necessary to enable the child to benefit from the other early intervention services; (xvi) nursing services; (xvii) transportation; (xviii) nutrition services; and (xix) other services. (D) Types of services. For the purpose of this chapter the following types of services apply. (i) The service of audiology includes: (I) identification of children with auditory impairment, using at-risk criteria and appropriate audiologic screening techniques; (II) determination of the range, nature, and degree of hearing loss and communication functions, by use of audiological evaluation procedures; (III) referral for medical and other services necessary for the habilitation or rehabilitation of children with auditory impairment; (IV) provision of auditory training, aural rehabilitation, speech reading and listening device orientation and training, and other services; (V) provision of services for prevention of hearing loss; and (VI) determination of the child's need for individual amplification, including selecting, fitting, and dispensing appropriate listening and vibrotactile devices, and evaluating the effectiveness of those devices. (ii) Service coordination services include assistance provided by a service coordinator to an eligible child and the child's family that is designed to assist and empower the family in enhancing the child's development in accordance with the rights provisions and procedural safeguards of this chapter. (iii) Family education, counseling, and home visits include services provided, as appropriate, by social workers, psychologists, and other qualified personnel to assist the family of an eligible child in understanding the special needs of the child and enhancing the child's development. (I) Family education is activities designed to improve the knowledge and skills of parents and other family members in matters related to growth, development, and learning of their child. (II) Counseling is assistance provided to the parents by qualified personnel. (III) Home visits are all services provided in the child's home. (iv) Health services include services necessary to enable a child to benefit from the other early intervention services during the time that the child is receiving the other early intervention services. (I) The term "health services" includes: (-a-) such services as clean intermittent catheterization, tracheostomy care, tube feeding, the changing of dressings or ostomy collection bags, and other health services; and (-b-) consultation by physicians with other service providers concerning the special health care needs of eligible children that will need to be addressed in the course of providing other early intervention services. (II) The term "health services" does not include services that are: (-a-) surgical in nature (such as cleft palate surgery, surgery for club foot, or the shunting of hydrocephalus); or (-b-) purely medical in nature (such as hospitalization for management of congenital heart ailments, or the prescribing of medicine or drugs for any purpose); (-c-) provision of devices necessary to control or treat a medical condition; or (-d-) medical-health services (such as immunizations and regular "well-baby" care) that are routinely recommended for all children. (v) Medical services only for diagnostic or evaluation purposes include services provided by a licensed physician to determine a child's developmental status and need for early intervention services. (vi) Nursing services include: (I) the assessment of health status for the purpose of providing nursing care, including the identification of patterns of human response to actual or potential health problems; (II) the provision of nursing care to prevent health problems, restore or improve functioning, and promote optimal health and development; and (III) the administration of medications, treatments, and regimens prescribed by a licensed physician. (vii) Nutrition services include: (I) conducting individual assessments in: (-a-) nutritional history and dietary intake; (-b-) anthropometric, biochemical, and clinical variables; (-c-) feeding skills and feeding problems; and (-d-) food habits and food preferences. (II) developing and monitoring appropriate plans to address the nutritional needs of eligible children; and (III) making referrals to appropriate community resources to carry out nutrition goals. (viii) Occupational therapy services include: (I) services to address the functional needs of a child related to the performance of self-help skills; adaptive behavior and play; and sensory, motor, and postural development in home, school, and community settings; (II) identification, assessment, and intervention; (III) adaptation of the environment, and selection, design, and fabrication of assistive and orthotic devices to facilitate development and promote the acquisition of functional skills; and (IV) prevention or minimization of the impact of initial or future impairment, delay in development, or loss of functional ability. (ix) Physical therapy services include: (I) screening of infants and toddlers to identify movement dysfunction; (II) obtaining, interpreting, and integrating information appropriate to program planning to prevent or alleviate movement dysfunction and related functional problems; and (III) providing services to prevent or alleviate movement dysfunction and related functional problems. (x) Psychological services include: (I) administering psychological and developmental tests, and other assessment procedures; (II) interpreting assessment results; (III) obtaining, integrating, and interpreting information about child behavior, and child and family conditions related to learning, mental health, and development; and (IV) planning and managing a program of psychological services, including psychological counseling for children and parents, family counseling, consultation on child development, parent training, and education programs. (xi) Social work services include: (I) making home visits to evaluate a child's living conditions and patterns of parent-child interaction; (II) preparing a social and emotional developmental assessment of the child within the family context; (III) providing individual and family-group counseling with parents and other family members, and appropriate social skill-building activities with the child and parents; (IV) working with those problems in a child's and family's living situation (home, community, and any center where early intervention services are provided) that affect the child's maximum utilization of early intervention services; and (V) identifying, mobilizing, and coordinating community resources and services to enable the child and family to receive maximum benefit from early intervention services. (xii) Special instruction services include: (I) the design of learning environments and activities that promote the child's acquisition of skills in a variety of developmental areas, including cognitive processes and social interaction; (II) curriculum planning, including the planned interaction of personnel, materials, and time and space, that leads to achieving the outcomes in the child's IFSP; (III) providing families with information, skills, and support related to enhancing the skill development of the child; and (IV) working with the child to enhance the child's development. (xiii) Speech-language pathology services include: (I) identification of children with communicative or oral pharyngeal disorders and delays in development of communication skills, including the diagnosis and appraisal of specific disorders and delays in those skills; (II) referral for medical or other professional services necessary for the habilitation or rehabilitation of children with communicative or oral pharyngeal disorders and delays in development of communication skills; and (III) provision of services for the habilitation, rehabilitation, or prevention of communicative or oral pharyngeal disorders and delays in development of communication skills. (xiv) Transportation services include the coverage of cost of travel (e.g., mileage, or travel by taxi, common carrier, or other means) and related costs (e.g., tolls and parking expenses) that are necessary to enable an eligible child and the child's family to receive early intervention services. (xv) Adaptive equipment services include the provision of equipment which has been designed or altered to match the abilities of the child and enables the child to interact with the environment more independently. (E) Service options. In a service area, options for instruction or treatment must be available based upon consideration of the medical, social, educational, and developmental needs of the child and family as stated in the IFSP. These options include: (i) individual services in the home or center or other locations; (ii) group services delivered at a site with other children; (iii) to the maximum extent appropriate, early intervention services to be provided in natural environments including the home and community settings in which children without disabilities may participate; (iv) flexible hours in programming which allow options for parents to participate (i.e., working parents); (v) variable degrees of family involvement in services, as determined by the family; (F) Availability of services. (i) The provider must demonstrate the capacity to provide instruction and treatment for a minimum of 48 weeks of each year. (ii) The provider must demonstrate the capacity to deliver a minimum of one hour of services per week for each child whose IFSP indicates such a need. (G) Service coordination. (i) One service coordinator must be identified for each eligible child/family. (I) An initial service coordinator must be assigned at the time of referral/intake. A new service coordinator may be assigned at the time the IFSP is developed or the original service coordinator may be retained, if appropriate. The parents must be given the name of their assigned service coordinator and told how to contact them. (II) The service coordinator assigned by the interdisciplinary team must be from the profession most relevant to the child/family's needs. (III) The service coordinator assigned may not be the parent. In some instances a staff person may share case coordination responsibilities with a parent. (IV) A new service coordinator must be appointed if a parent requests. (ii) The service coordinator is responsible for coordinating all services within the program and between agencies including: (I) coordinating the performance of evaluations/assessments; (II) facilitating and participating in development, review, and evaluation of the IFSP; (III) monitoring the provision of services to ensure timely delivery of services; (IV) facilitating the development of a transition plan to include follow-up services when a child leaves the program; (V) continually seeking appropriate services for children/families; and (VI) coordinating with medical and health providers. (iii) The service coordinator must serve as the single to help the families with services including: (I) addressing identified needs and ongoing service requests; (II) identifying resources and helping parents to choose among and to access these resources; (III) informing families of advocacy services; and (IV) informing families of complaint procedures. (iv) The local program must ensure that all persons functioning as service coordinators are: (I) knowledgeable about infants and toddlers who are developmentally delayed or at risk of delay; (II) knowledgeable of Part H of Public Law 101-476; and (III) knowledgeable about services available on the state and local levels, including eligibility and fee-for-service information. (H) Contents of the plan. Programs which receive ECI funds must have a written IFSP for each child developed jointly by the interdisciplinary team including the child's parents. (i) The IFSP must include an integrated summary of all assessments and evaluations of the child's present levels of physical development (including gross and fine motor skills, nutrition, vision, hearing, and health status), cognitive development, communication development, social-emotional development, and self-help skills or adaptive development. This integrated summary must be based on professionally acceptable criteria. A description of the child's strengths and needs must be included in the IFSP. (ii) With the concurrence of the family, the IFSP must include an integrated summary of the family's concerns, priorities, and resources related to enhancing the development of the child. (iii) The IFSP must include a statement of the major strategies and outcomes expected to be achieved for the child and family, and the criteria, procedures, and timelines used to determine: (I) the degree to which progress toward achieving the outcomes is being made; and (II) whether modifications or revisions of the outcomes or services are necessary. (iv) The IFSP must address the specific early intervention services necessary to meet the unique needs of the child and the family to achieve the outcomes identified in the plan, including: (I) the frequency, intensity, location, and method of delivering the service; (II) a summary of the age appropriate opportunities that the child will have to interact with peers who do not have disabilities in natural environments; (III) the payment arrangements, if any, for all services provided, including those provided by the ECI program. (v) To the extent appropriate, the IFSP must include: (I) medical and other services that the child needs, but that are not required in accordance with subparagraphs (C) and (D) of this paragraph; and (II) if necessary, the steps that will be taken to secure those services through public or private resources. (vi) The IFSP must include the projected dates for initiation of intervention services and the expected duration of those services. (vii) The IFSP must identify the service coordinator who will be responsible for implementation of the IFSP and coordination with other agencies and persons. (I) Transition. The IFSP must include the steps to be taken to support the transition of the child to public school preschool services (Part B, of the Individual's with Disabilities Education Act), upon reaching the age of three, or to other services that may be available, if appropriate. The steps required include: (i) discussions with, and training of, parents regarding future placements and other matters related to the child's transition; (ii) procedures to prepare the child for changes in service delivery, including steps to help the child adjust to, and function in, a new setting; and (iii) with parental consent, the transmission of information about the child to the local educational agency or other service provider, to ensure continuity of services, including evaluation and assessment information, and copies of IFSPs that have been developed. (J) Interim IFSP. Early intervention services for an eligible child and the child's family may commence before the completion of the evaluation and assessment if the following conditions are met: (i) parental consent is obtained; (ii) an interim IFSP is developed that includes: (I) the name of the service coordinator who will be responsible for implementation of the interim IFSP and coordination with other agencies and persons; and (II) the early intervention services that have been determined to be needed immediately by the child and the child's family; and (iii) the evaluation and assessments are completed within 45 days of intake. (K) Responsibility/accountability. Each agency or person who has a direct role in the provision of early intervention services is responsible for making a good faith effort to assist each eligible child in achieving the outcomes in the child's IFSP. However, no agency or person can be held accountable if an eligible child does not achieve the growth projected in the child's IFSP. (L) Reimbursement for service. (i) All ECI required services must be provided at no cost to families, including, but not limited to, child find, evaluation and assessment, service coordination, and administration and coordination related to the development, review, and evaluation of IFSP's. (ii) No child may be denied services because of the family's inability to pay. All programs will be required to bill third party insurers for all services at no cost to families. Third parties include, but are not limited to, HMOs, private insurance, Medicaid, and the Chronically Ill and Disabled Children's Program. (iii) Families will be required to apply for assistance for all applicable funding resources for which they are potentially eligible including, but not limited to, Medicaid and the Chronically Ill and Disabled Children's Program. (iv) All programs will be required to apply for Chapter I funds. sec.621.24. Program Administration. (a) Program eligibility. (1) Funds are available to public or private service organizations that may be current or potential providers of services for children with developmental delays. (2) (No change.) (b) (No change.) (c) Program requirements. (1) Child find. Each program must develop and implement a child find plan which includes: (A)-(C) (No change.) (2) Required services. As of September 1, 1990, each program must provide an evaluation and assessment, service coordination, and an IFSP for all eligible children. (3) Public awareness. Each program must develop and implement a public awareness plan which includes: (A)-(C) (No change.) (4)-(6) (No change.) (7) Child health standards. Programs that receive ECI funds must have written policies and procedures which are implemented and evaluated in each of the following areas. (A)-(C) (No change.) (8) Safety regulations regarding emergencies for all buildings where ECI programs are housed. Programs that receive ECI funds must have written policies and procedures which are implemented and evaluated in the following areas. (A) First aid supplies must be maintained on the premises and in vehicles routinely used by the program. (B) There must be written posted procedures to be followed in the event of actual or threatened natural disasters, such as fire, tornado, flood, hurricane (as appropriate for the area). Evacuation routes must be posted. Procedures must be individualized for each location. (C) Each facility must conduct quarterly fire drills rehearsing the evacuation of all children. Such drills must be documented. (D) Each facility must have a working telephone, and emergency telephone numbers must be posted. (9) Accessibility and safety. Programs that receive ECI funds must have written policies and procedures which are implemented and evaluated in the following areas. (A)-(D) (No change.) (10) Transportation safety. Programs that receive ECI funds must have written policies and procedures which are implemented and evaluated in the following areas. (A) The transportation system operated by the ECI Program must meet local and state licensing, inspection, insurance, and capacity requirements. (B) Children must be transported in an appropriately installed federally approved child passenger restraint seat, appropiate to the child's age and size. (C) Drivers of vehicles must have valid and appropriate drivers' licenses. Drivers must have current defensive driving certification. (D) Drivers and driver's aides must have training in first aid, emergency care of seizures, and be certified in cardiopulmonary resuscitation for children and infants. (11) (No change.) (12) Staff health regulations. Programs that receives ECI funds must have written policies and procedures which are implemented and evaluated in the following areas. (A) (No change.) (B) Programs shall not require HIV testing of employees. (C)-(D) (No change.) (13) Staff development for health/safety issues. Programs that receive ECI funds must have written policies and procedures which are implemented and evaluated in the following areas. (A) All staff who work directly with children must receive training in first aid and have certification in cardiopulmonary resuscitation for children and infants. (B) All staff who work directly with children must receive training in the implementation of Universal Precautions for Texas ECI Programs and in the recognition of common childhood illnesses. (C) When activities are provided in a swimming pool, there must be at least one person present who is certified by the American Red Cross in water safety instruction, lifeguard training, or emergency water safety. sec.621.25. Application Requirements. (a)-(c) (No change.) (d) Applicant share or maintenance of effort. (1) The maximum reimbursement through ECI for continuation programs is contingent on program expenditure levels maintained in the previous year in which ECI funds were requested. All ECI funded programs are required to maintain local funding and support based on their previous year expenditures. (2) New programs may follow a phase-in period for developing local community support. The following schedule illustrates the maximum reimbursement percentages for new programs in their first three years. [graphic] (3) The applicant's share or maintenance of effort may include the following: (A) federal, state, and local funds if allowable as match by source of funds; (B)-(D) (No change.) (4)-(7) (No change.) (e) Allowable costs. (1) The following is intended to be a summary of the most frequently requested costs, and should not be construed to be complete. (Exclusion of a particular item from the allowable list does not necessarily mean it is unallowable. All costs to be reimbursed by ECI or applicant share must go exclusively for conducting the program.) A complete list of expenditures is listed in the UG&CMS: (A)-(E) (No change.) (2) The following expenses are the most common types of "other expenses:" (A) (No change.) (B) depreciation-allowable whenever real or personal property are used for the benefit of the grant. May only count toward the applicant's share; with grantors approval; is not chargeable to the ECI share; (C)-(G) (No change.) (f) (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 January 16, 1992. TRD-9200716 Austin R. Kessler Chairperson Interagency Council on Early Childhood Intervention Effective date: February 6, 1992 Proposal publication date: August 9, 1991 For further information, please call: (512) 458-7673 Procedural Safeguards and Due Process Procedures 25 TAC sec.sec.621.41, 621.42, 621.44 The amendments are adopted under the Human Resource Code sec.73.003, which provides the Interagency Council on Early Childhood Intervention with the authority to establish rules regarding services provided for children with developmental delays. sec.621.41. Procedural Safeguards. (a)-(b) (No change.) (c) Responsibilities. Each program shall be responsible for: (1) -(2) (No change.) (3) providing oral and written explanation to parents regarding procedural safeguards during the intake process and at other times when parental consent is required. (d) Prior notice; native language. (1) Prior notice. Written prior notice must be given to parents at least 10 days before a public agency or service provider proposes, or refuses, to initiate or change the eligibility, evaluation, or placement of the child, or the provision of appropriate early intervention services to the child and the child's family, unless waived by the child's family. (2)-(3) (No change.) (e) (No change.) (f) Surrogate parents. (1)-(2) (No change.) (3) Criteria for selecting surrogates are as follows. (A)-(D) (No change.) (E) These requirements of subparagraphs (A)-(D) of this paragraph ensure that the surrogate parent does not hold a job or a position that would either bias the decisions made for the child or make the surrogate parent vulnerable to the possibility of administrative retaliation for the execution of their responsibilities. The conflict of interest requirement has also been interpreted to mean that employees of private institutions educating children cannot serve as surrogate parents for children being served by that private institution. (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 January 16, 1992. TRD-9200714 Austin R. Kessler Chairperson Interagency Council on Early Childhood Intervention Effective date: February 6, 1992 Proposal publication date: August 9, 1991 For further information, please call: (512) 458-7673 TITLE 28. INSURANCE Part II. Texas Workers' Compensation Commission Chapter 116. General Provisions-Subsequent Injury Fund 28 TAC sec.116.11, sec.116.12 The Texas Workers' Compensation Commission adopts new sec.166.11 and sec.116. 12, concerning reimbursement from the subsequent injury fund to insurance carriers who have overpaid benefits pursuant to an interlocutory order or decision of the appeals panel, without changes to the proposed text as published in the November 5, 1991, issue of the Texas Register (16 TexReg 6270). The new sections are necessary to prescribe procedures for seeking reimbursement. Section 116.11 describes the circumstances permitting a carrier to request reimbursement, and sets out the requirements for framing and filing the request. Section 116.12 establishes priorities for claims against the fund, provides for reimbursement to be paid annually, describes the procedures to be followed by the fund's administrator in reviewing and responding to requests for reimbursement, and permits the administrator to suspend action on requests for reimbursement for payments pursuant to interlocutory orders until final resolution of liability for those payments. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Civil Statutes, Articles 8308-2.09(a) , which authorizes the commission to adopt rules necessary to implement and enforce the Texas Workers' Compensation Act, and 8308-6.15(e), which requires the commission to adopt rules to provide for a periodic reimbursement schedule. 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 January 21, 1992. TRD-9200911 Ernest Boardman Acting General Counsel Texas Workers' Compensation Commission Effective date: February 11, 1992 Proposal publication date: November 5, 1991 For further information, please call: (512) 440-3971 Chapter 130. Benefits-Impairment and Supplemental Income Benefits Subchapter A. Impairment Income Benefits 28 TAC sec.130.8 The Texas Workers' Compensation Commission adopts new sec.130.8, concerning initiating payment of impairment income benefits, without changes to the proposed text as published in the November 5, 1991, issue of the Texas Register (16 TexReg 6270). The new section establishes that an injured worker who receives an impairment rating greater than zero is entitled to impairment income benefits regardless of whether the worker suffered more than seven days of disability, and provides time frames for initiating payment of impairment income benefits under various conditions. No public comment was received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 8308-2.09(a), which authorize the commission to adopt rules necessary to implement and enforce the Texas Workers' Compensation Act. 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 January 21, 1992. TRD-9200912 Ernest Boardman Acting General Counsel Texas Workers' Compensation Commission Effective date: February 11, 1992 Proposal publication date: November 5, 1991 For further information, please call: (512) 440-3971 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part III. Texas Air Control Board Chapter 111. Control of Air Pollution From Visible Emissions and Particulate Matter Visible Emissions 31 TAC sec.111.111 The Texas Air Control Board (TACB) adopts amendments to sec.111.111, concerning visible emissions, with changes to the proposed text as published in the August 6, 1991, issue of the Texas Register (16 TexReg 4265-4266). The new subsection (c) adds controls for solid fuel heating devices and are in conjunction with the development of a State Implementation Plan (SIP) for the control of inhalable particulate matter, in accordance with the 1990 Federal Clean Air Act (FCAA) Amendments. All provisions are applicable only in the City of El Paso (El Paso). A public hearing was held in El Paso on September 5, 1991. Testimony was received from three commenters during the comment period which ended September 6, 1991. One individual supported the proposal. Opposing the proposal were the United States Environmental Protection Agency (EPA) and the El Paso City-County Health District (EPCCHD). The following discussion initially addresses the more general comments and then addresses the comments which deal with specific parts of the new subsection. EPA was concerned with how the requirements of Regulation I will be implemented and enforced in El Paso. The commenter recommended that a memorandum of understanding (MOU) be developed between El Paso and the TACB to define responsibilities and commitments necessary to accomplish the provisions of the regulation. Specifically, EPA wanted the implementation of a public information program dealing with residential wood combustion. EPA also stated that local ordinances may be necessary to enable the city to meet the requirements of Regulation I. The TACB has negotiated and executed a MOU with El Paso to define responsibilities under the SIP. The city currently has an enforceable ordinance in place controlling the use of solid fuel heating devices during periods of atmospheric stagnation. El Paso has provided detailed information on this ordinance and committed to a public information program. EPA wanted to know the source of meteorological data that will be used to implement the provisions of sec.111.111. Additionally, they requested a definition of "adequate dispersion of smoke" and wanted to apply solid fuel heating device controls to sources outside of buildings as well as inside. Also, EPA was concerned with the distribution of information on adverse atmospheric conditions to the public, and EPA requested justification for the exemption of commercial cookers. Finally, EPA noted that exemptions from other TACB regulations require the approval of the executive director rather than the regional director, as with sec.111.111. The specification of National Weather Service data provides an official and verifiable source of weather information, and the term "atmospheric stagnation" indicates a condition where pollutants are not dispersed. Inclusion of these concepts in the rule language satisfies EPA requirements. With regard to EPA's concern with outdoor solid fuel heating devices, this section does not apply to the warming of individuals who must remain outdoors. The relatively small number of cases will minimize impact. El Paso currently has a regulation limiting the use of heating devices during atmospheric stagnation, along with the necessary public information distribution mechanism. These procedures are detailed in the MOU. The inclusion of commercial cookers in this regulation would cause the closure of those establishments using solid fuel during atmospheric stagnation, while those using gas or electricity could remain open. The staff has decided that this is unfair and overly restrictive. Again, the relatively small number of restaurants using solid fuel makes their impact on air quality minimal. In response to the last EPA comment on this section, the TACB has reworded sec.111.111(c)(2) to require executive director approval for exemptions to the section. This is to maintain consistency with similar requirements in other rules. EPCCHD wanted to be allowed to grant exemptions in the use of solid fuel heating devices. Also, EPCCHD requested that the compliance date for sec.111.111 to be the same as the board adoption date. The request of EPCCHD to have the authority to exempt solid fuel heating devices is understandable. The TACB prefers to retain sole authority in this matter. However, exemptions granted by the executive director in the future can be determined in concert with local authorities. It is necessary for exemptions from TACB regulations to be authorized by the executive director. The staff has generally found a better level of understanding when a specific compliance date is stated in the rule rather than relying on the adoption date. A substantial portion of the comments from EPA dealt with the State Implementation Plan (SIP) document and modeling procedures. ASARCO also had comments on modeling and submitted additional data to be incorporated into their emission inventory. The following discussion contains general comments on test methods for PM[sup]10[/sub] followed by comments on specific points raised about the SIP document and modeling. EPA commented that federal rules, promulgated on April 17, 1990 (55 Federal Register 14246), require every PM[sup]10[/sup] nonattainment area SIP to contain the test methods for measurement of PM[sup]10[/sub] emissions. The staff did not believe that test methods for stack emissions of PM[sup]10[/sub] should be included in this SIP revision, and no revised rule language was included on this point. In staff discussions between the TACB and EPA Region 6 staff, a consensus was reached that the more appropriate approach would be to revise TACB Regulation I on a statewide basis. The revisions would include the development of rules requiring the use of specific test methods and possibly a testing frequency in cases where an allowable rate of emissions has been established. Development of statewide regulations will occur apart from this SIP revision. EPA commented that the emissions reduction claimed from residential fireplaces had not been specified and that other credits claimed under the revisions to Regulation I can not be accounted for without a specific plan of implementation from El Paso. Fireplace emissions for 1990 and 1994 are shown in Table 22 of the SIP document. The 1994 emissions reflect projected population growth from 1990 to 1994 coupled with the emissions reducing effect of restrictions on fireplace operation as adopted in sec.111.111. The net decrease in fireplace emissions from 1990 to 1994 is eleven tons per year. The SIP revision was enhanced to clarify this issue. The issue of a plan of implementation is addressed through a MOU which is mentioned earlier in this discussion. The amendments are adopted under the Texas Clean Air Act (TCAA) sec.382.017, Texas Health and Safety Code (Vernon 1990), which provides TACB with the authority to adopt rules consistent with the policy and purpose of the TCAA. sec.111.111. Requirements for Specified Sources. (a)-(b) (No change.) (c) Solid fuel heating devices. (1) Operating restrictions. In the City of El Paso, including the Fort Bliss Military Reservation, no person shall operate a solid fuel heating device during a period when National Weather Service data indicates that an atmospheric stagnation condition exists or is predicted to exist. For the purposes of this section, a solid fuel heating device shall be defined as any fireplace, wood heater, wood stove, wood-fired boiler, coal-fired furnace, or similar device burning any solid fuel which is used for aesthetic, cooking (excluding commercial cooking), or heating purposes, and located inside a building. (2) Exemptions. An exemption from the requirements of this section may be granted by the executive director of the Texas Air Control Board if one or more of the following conditions are met: (A) the solid fuel heating device is in a period of burn down; that is, a period of time not to exceed three hours for the cessation of combustion within the device; (B) the solid fuel heating device is the sole source of heat for the building in which it is situated; or (C) the solid fuel heating device becomes the sole source of heat within the building because of a temporary power loss. 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 January 21, 1992. TRD-9200963 Lane Hartsock Deputy Director, Air Quality Planning Program Texas Air Control Board Effective date: February 12, 1992 Proposal publication date: August 6, 1991 For further information, please call: (512) 908-1451 Materials Handling, Construction, Roads, Streets, Alleys, and Parking Lots 31 TAC sec.sec.111.141, 111.145, 111.147 The Texas Air Control Board (TACB) adopts amendments to sec.sec.111.141, 111. 145, and 111.147 concerning materials handling, construction, roads, streets, alleys, and parking lots, with changes to the proposed text as published in the August 6, 1991, issue of the Texas Register (16 TexReg 4266-4267). The amendments are adopted in conjunction with the development of a State Implementation Plan (SIP) for the control of inhalable particulate matter in accordance with the 1990 Federal Clean Air Act (FCAA) amendments. All revisions are applicable only in the City of El Paso (El Paso). The revisions to sec.111.141, concerning geographic areas of application and date of compliance, include the Fort Bliss Military Reservation (Fort Bliss) and establish a separate compliance date of December 10, 1993, for the newly- affected sources. The revisions to sec.111.145, concerning construction and demolition, require controls for all such activities, regardless of the size of the area of land affected, and require the application of paving or wetting agents to construction or demolition site access roads. The revisions to sec.111. 147, concerning roads, streets, and alleys, eliminate the exemption of sand applied for snow or ice control, add requirements for paving and cleaning all vehicle traffic surfaces, require that specific thoroughfares be paved, and define a street sweeping schedule and recordkeeping requirements. A public hearing was held in El Paso on September 5, 1991. Testimony was received from seven commenters during the comment period which ended September 6, 1991. Two commenters supported the proposals and five were in opposition. Opposing the proposals were Asarco, Incorporated (Asarco), the United States Environmental Protection Agency (EPA), the Texas Department of Public Safety (DPS), El Paso Water Utility (EL Paso), and an individual. The following discussion initially addresses the more general comments and then addresses the comments which deal with specific parts of the regulation. EPA was concerned with how the requirements of Regulation I will be implemented and enforced in El Paso. The commenter recommended that a memorandum of understanding (MOU) be developed between El Paso and the TACB to define responsibilities and commitments necessary to accomplish the provisions of the regulation. Specifically, EPA wanted a commitment of funds necessary for the paving of road surfaces, that is, an agreement that funds for paving and construction will remain intact in the event of city budget cuts. The TACB has negotiated and executed a MOU with El Paso to define responsibilities under the SIP. Through a resolution of the city council, El Paso has agreed to commit the funds necessary to accomplish the requirements of the amendments. A private citizen wanted to see the application of these revisions throughout West Texas because of the dust from construction that is a problem throughout this area. Another individual felt that the TACB offices are frequently distant from areas causing dust problems and can not respond quickly to complaints. Regulation I requires dust control at construction sites and other unpaved surfaces in areas where monitored air quality data indicates a high probability of particulate problems (El Paso, Harris, and Nueces Counties). The majority of Texas counties meet the National Ambient Air Quality Standards (NAAQS) for particulate matter of less than 10 microns (PM[sup]10[/sub]); therefore, the enhanced controls required by this revision are not needed. In such areas, protection is provided by TACB rule under sec.101.4 relating to nuisance. The location of the TACB offices in major population areas of the state allows quick response to complaints from the majority of the population. Every effort is made to respond as quickly as possible to complaints, but communities farther from the regional office experience longer response times. Nevertheless, every complaint will get attention. An individual was concerned about the amount of dust resulting from the movement of military vehicles on Fort Bliss range roads. Fort Bliss is subject to the same paving requirements as the City of El Paso for roads used by passenger vehicles. Areas used for tactical training maneuvers and the roads and trails leading to them are exempted from regulation. Control of the maneuver areas is not practical due to their large size and the fact that there are no set paths for vehicles to follow. The roads leading to the maneuver areas would be subject to damage from tracked vehicles. An individual expressed concern that the illegal dumping of industrial solid waste and a nearby rock quarry were responsible for a portion of the PM[sup] 10[/sub] levels. The individual indicated that these activities currently are not regulated. While illegal dumping is a legitimate concern, the contribution to airborne dust is minimal and control of this activity is covered in other state and local laws and is beyond the scope of this revision. Activities at quarries are regulated under the Materials Handling section of Regulation I. Citizens having problems with this kind of facility are urged to file complaints with the TACB regional offices. DPS expressed concern that many of the paving materials now in use will be classified as air toxics under the new amendments to the FCAA. The adopted revisions apply to the control of PM[sup]10[/sub]. The classification of certain paving materials as toxic will not necessarily prohibit their use but may require enhanced control. In any event, toxic controls are not the subject of this revision. El Paso expressed concern that water used for dust control will place a strain on a limited water supply. Using water is only one of the alternatives available for dust control. The requirement that El Paso pave alleys and other surfaces is based on the understanding that water accomplishes only temporary dust control and is a very limited resource in El Paso. The TACB recognizes the need of the local government to manage the use of such a basic resource for the greater good of the citizens. EPA recommended that the words "as soon as practicable" and "maximum" be deleted from the text of sec.111.147. These words are used here, and in other sections, in conjunction with the application of dust control methods. EPA also requested a specification as to how long sweeping records are to be kept by the city. The El Paso City-County Health District requested that the levee roads be added to the paving requirements at the same rate (15 miles per year) as alleys. The words "as soon as practicable" and "maximum" have been deleted from this section and other sections of this revision since EPA is concerned that the terms provide too much subjectivity in the regulation. A specification was added clarifying that records be kept for two years. Control methods other than paving are allowed for levee roads in the regulation because of low traffic volume on levee roads. Thus, there is no need to specify a paving rate for them. ASARCO requested an exemption from the paving requirement for the low-use slag hauling routes on their property. These routes are still subject to dust control through the application of suitable oil, chemicals, or water. ASARCO stated that the weight of the slag haulers would soon destroy any pavement, except airportstyle reinforced concrete. Their contention was that the additional dust control gained by paving, as opposed to other methods of control, is not justified by the expense of heavy-duty paving. They stated the cost of paving would exceed $2,000 per ton of additional particulate control. The slag hauling trucks used by ASARCO, when loaded, weigh nearly 100 tons each. ASARCO's concern about the durability of conventional pavement subjected to this weight is well founded. The tonnage figure obtained by ASARCO for additional tons of particulate control was calculated using EPA emission factors for fugitive dust. Considering the low use of these roads and the fact that they are still subject to dust control by other methods, the staff has determined that the requirement to pave is excessive and has added the option for the executive director and EPA to grant a waiver in this and similar circumstances. In considering waivers for industrial roads in El Paso, a figure of $2,000 per additional ton of particulate control per year will be used. This figure is also used by EPA as a level to evaluate best available control technology. The ASARCO roadways also will be addressed in the permitting process where methods of dust control will be specified. Several comments from EPA were directed at those portions of Regulation I which are applicable statewide. These comments go beyond the scope of this rulemaking and would need to be considered in a future proposal. A substantial portion of the comments from EPA dealt with the SIP document and modeling procedures. ASARCO also had comments on modeling and submitted additional data to be incorporated into their emission inventory. The following portion of this discussion contains general comments on test methods for PM point=4.02p set=4.42p followed by comments on specific points raised about the SIP document and modeling. EPA commented that federal rules, promulgated on April 17, 1990 (sec.5 Federal Register 14246), require every PM point=4.02p set=4.42p ] nonattainment area SIP to contain the test methods for measurement of PM point=4.02p set=4.42p emissions. The staff did not intend for test methods for stack emissions of PM point=4.02p set=4.42p to be included in this SIP revision, and no revised rule language was included on this point. In staff discussions between the TACB and EPA Region 6 staff, a consensus was reached that the more appropriate approach would be to revise TACB Regulation I on a statewide basis. The revisions would include the development of rules requiring the use of specific test methods and possibly a testing frequency in cases where an allowable rate of emissions has been established. Development of statewide regulations will occur apart from this SIP revision. EPA commented that area source controls under Regulation I do not contain a compliance date and again raised the issue of a specific plan of implementation by El Paso. EPA also argued that a contingency plan likely will be required in El Paso despite the international nature of the PM[ point=4.02p set=4.42p problem. As indicated in sec.111.141, December 10, 1993, is the compliance date for the adopted revisions to Regulation I and the memorandum of understanding addresses implementation plans. Based on conversations with EPA Region 6 staff, the SIP was clarified to indicate that a contingency plan will be developed in future El Paso PM point=4.02p set=4.42p SIP revisions. The TACB, in cooperation with EPA, El Paso, and other agencies, will continue studying the PM problem in the El Paso-Juarez air basin. Enhanced emissions inventory and monitoring data and modeling techniques will help to define better the contributions of each city to the PM[ point=4.02p set=4.42p problem. A plan can be more appropriately developed once these studies are complete. ASARCO commented that a statement might be included in section C(4)(h) of the control strategy stating that the adopted SIP revision satisfies sec.179B of the FCAA for border nonattainment areas. Discussions with EPA legal staff indicate that such a statement is not necessary. EPA commented that there is an abnormally large difference between the 1985 National Acid Precipitation Assessment Program (NAPAP) total suspended particulate (TSP) estimate and the PM point=4.02p set=4.42p area source emissions estimates contained in the draft SIP. emissions inventory followed all applicable PM point=4.02p set=4.42p guidance documents published by EPA. These guidelines are significantly different from those established for the 1985 NAPAP emissions inventory. The emphasis of the 1985 NAPAP emissions inventory was directed toward large emitters of sulfur dioxide and nitrogen oxides. Emissions of TSP were, therefore, reported only for these large sources. The TACB staff believes that the difference in the focus of the NAPAP inventory is the primary reason for the inconsistency noted by EPA. EPA expressed concern that the modeling discussed in the draft SIP emphasized only one "critical" receptor in its refined modeling conducted with a 100-meter receptor spacing. EPA also commented that the draft SIP was unclear as to the meaning of "in the vicinity of the critical receptor." In response to EPA's comment, the TACB staff conducted additional modeling with a 100-meter receptor spacing for the 1994 case. Previously, for each of the annual and 24-hour averaging periods and for each of the years 1990 and 1994, only one area identified as a "hot spot" with one-kilometer receptor spacing was further modeled with a 100-meter spacing. For the 24-hour averaging period, modeling had focused on the one area centered on the highest sixth-high concentration predicted by the modeling. For the annual averaging period, modeling focused on the one area centered on the highest predicted five-year average annual concentration. In the updated modeling for the 1994 case, the TACB staff modeled two additional "hot spot" areas for each of the 24-hour and annual averaging periods, using a 100-meter receptor spacing, refined modeling based on the location of relatively high concentrations predicted at one-kilometer receptors in the initial modeling. All modeling conducted in the vicinity of critical one-kilometer receptors employed a minimum grid size of five columns and five rows, spaced at 100 meters. The additional modeling for 1994 demonstrated very weak concentration gradients, even with the 100-meter receptor spacing. The predicted 24-hour and annual PM design concentrations remained below the NAAQS. For the base year 1990, no additional modeling was conducted in the vicinity of critical one-kilometer receptors since area and point source emissions modeled for 1994 were greater than or equal to those modeled for 1990. As a conservative measure for the 1994 modeling, no credit was taken for any area source emissions reductions related to the controls adopted in the SIP. Section 4(e) of the El Paso SIP revision has been updated to reflect the additional modeling conducted in response to EPA's comment. EPA commented that non-complex terrain modeling around critical point sources ideally should be done with the Industrial Source Complex Model, taking downwash into account. EPA noted that this might particularly be the case for modeling around Jobe Concrete Products, Incorporated (Jobe) (page 69 of the draft SIP). The TACB staff has determined that downwash is not an important consideration in the modeling of Jobe. The nearest downwashed sources are approximately 500 meters from to the property line at which the maximum concentrations were predicted with the Gaussian-Plume Multiple Source Air Quality model. Furthermore, over 90 percent of PM emissions from Jobe are fugitives with low release heights. Applying building downwash to such fugitive emissions would only decrease predicted concentrations below the currently predicted values. Thus, the current modeling provides a conservative estimate of PM point=4.02p set=4.42p concentrations resulting from Jobe emissions. ASARCO commented that the company's emissions information reported in the draft SIP require certain corrections. ASARCO recommended updates to various emissions tables in the SIP and also provided revised modeling estimates based on the updated emissions data. Subsequent to the date of ASARCO's comment letter (September 6, 1991), the TACB staff and ASARCO discussed the company's emissions inventory in several meetings and telephone conversations. Through these discussions, the TACB staff learned that the company's PM[sup]10[/sub] emissions updates were associated in large part with their ongoing continuous smelting-top blowing permit application, which currently is in review at the TACB. ASARCO continued to provide updates to their inventory through September 23, 1991. The revised modeling predictions proposed in ASARCO's comment letter were not used because the company updated the emissions data subsequent to the comment letter and since the TACB staff did not feel that the techniques proposed by ASARCO for scaling up the design concentrations were technically defensible. Once ASARCO completed the emissions updates, the TACB staff conducted extensive remodeling to take into account the company's revised emissions inventory. However, the updates to the emissions inventory did not significantly change the modeling results previously reported in the draft SIP. The SIP document has been updated to reflect all ASARCO emissions inventory updates and revised modeling results. The amendments are adopted under the Texas Clean Air Act (TCAA) sec.382.017, Texas Health and Safety Code (Vernon 1990), which provides TACB with the authority to adopt rules consistent with the policy and purpose of the TCAA. sec.111.141. Geographic Areas of Application and Date of Compliance. Section 111.141 of this title (relating to Geographic Areas of Application and Date of Compliance), sec.111.143 of this title (relating to Materials Handling), sec.111.145 of this title (relating to Construction and Demolition), sec.111.147 of this title (relating to Roads, Streets, and Alleys), and sec.111.149 of this title (relating to Parking Lots) shall apply to the following areas: the City of El Paso, including the Fort Bliss Military Reservation except for training areas for tactical training, maneuvering, air support, and such other and further uses that are not inconsistent therewith, including access to and from said areas, unless otherwise specified; that portion of Harris County inside the loop formed by Beltway 8; and that area of Nueces County outlined in the Group II State Implementation Plan for Inhalable Particulate Matter adopted by the Texas Air Control Board on May 13, 1988. Compliance with these sections shall be as soon as practicable, but no later than December 31, 1991, except as follows: compliance on the Fort Bliss Military Reservation and compliance with sec.111.145(3) of this title relating to Construction and Demolition); the paving requirements of sec.111.147(1); and the street sweeping requirements of sec.111.147(2) of this title (relating to Roads, Streets and Alleys), shall be as soon as practicable, but no later than December 10, 1993. sec.111.145. Construction and Demolition. For the purpose of this section, the following restrictions apply if the area of land affected by the listed activities is more than one acre in size, except for the City of El Paso, where restrictions shall apply regardless of the size of the area of land affected. No person may cause, suffer, allow, or permit a structure, road, street, alley, or parking area to be constructed, altered, repaired, or demolished, or land to be cleared without taking at least the following precautions to achieve control of dust emissions: (1)-(2) (No change.) (3) application of asphalt, other paving materials, water, suitable oil, or chemicals on construction and/or demolition site access roads located in the City of El Paso. sec.111.147. Roads, Street, and Alleys. No person may cause, suffer, allow, or permit any public, industrial, commercial, or private road, street, or alley to be used without taking at least the following precautions to achieve control of dust emissions: (1) application of asphalt, water, or suitable oil or chemicals on the following unpaved surfaces, except in the City of El Paso and the Fort Bliss Military Reservation, except as noted in sec.111.141, where the use of paving materials is the only acceptable method of dust control, unless otherwise specified: (A) industrial facility roadways-all major inplant roads and all truck or other heavy-duty vehicle pathways. Major in-plant roads shall be defined as those which are designed to accommodate two-way traffic and are at least 30 feet wide at least one point, measuring the distance from the edge of the undisturbed earth on either side of the established roadway the executive director, with the concurrence of the United States Environmental Protection Agency, may grant a waiver from the requirement to pave an industrial facility roadway if the owner of the roadway demonstrates that the cost of paving is economically unreasonable compared to other methods of dust control specified in paragraph (1) of this section; (B)-(D) (No change.) (E) alleys-in the City of El Paso, alleys shall be paved at the rate of at least 15 miles per year; (F) levee roads in the City of El Paso, all levee roads and access to such roads shall be controlled with the application of asphalt, or suitable oil or chemicals. (2) Removal from public thoroughfares, as necessary, of soil or other materials, except for sand applied for the specific purpose of snow or ice control. In the City of El Paso, removal of soil shall be by mechanical sweepers or their equivalent at the rate of four times per year for all public thoroughfares within the city limits and six times per week or as necessary for public thoroughfares within the central business district. For the purpose of this section, the central business district shall be defined as that area bordered by Loop 375 to the south, Santa Fe Street to the west, Missouri Street to the north, and Kansas Street to the east. The City of El Paso shall spot clean dirty roadways, and shall maintain street sweeping records for two years. Sand applied for the specific purpose of snow or ice control shall be removed as soon as such control is no longer necessary. 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 January 21, 1992. TRD-9200962 Lane Hartsock Deputy Director, Air Quality Planning Program Texas Air Control Board Effective date: February 12, 1992 Proposal publication date: August 6, 1991 For further information, please call: (512) 908-1451 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 8. Home Energy Assistance Program (HEAP) Program Requirements 40 TAC sec.8.2 The Texas Department of Human Services (DHS) adopts an amendment to sec.8.2, concerning Home Energy Assistant Program (HEAP) eligibility criteria, without changes to the proposed text as published in the December 6, 1991, issue of the Texas Register (16 TexReg 6995). The justification for the amendment is to adjust the income eligibility criteria to reflect the 1991 annual update to the federal poverty income guidelines. The amendment will function by adding to the rule income guidelines for the HEAP program that incorporate last year's increase in prices as measured by the Consumer Price Index. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. 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 January 17, 1992. TRD-9200831 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: February 7, 1992 Proposal publication date: December 6, 1991 For further information, please call: (512) 450-3765 Chapter 29. Purchased Health Services Subchapter K. Definitions 40 TAC sec.29.1001 The Texas Department of Human Services (DHS) adopts an amendment to sec.29. 1001, concerning definitions, without changes to the proposed text as published in December 27, 1991, issue of the Texas Register (16 TexReg). The amendment is justified by enabling therapeutic optometrists to treat Medicaid clients and be reimbursed for the same services currently reimburs- able to optometrists. The amendment will function by redefining the practice of optometry to include therapeutic optometry. All references to optometrists in the Purchased Health Services rules chapter will include therapeutic optometrists. No comments were received regarding the adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chap- ters 22 and 32, which authorizes the department to administer public and medical assistance programs. 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 January 17, 1992. TRD-9200825 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: March 1, 1992 Proposal publication date: November 26, 1991 For further information, please call: (512) 450-3765 Chapter 79. Legal Services Subchapter U. Fraud Involving Recipients 40 TAC sec.79.2009, sec.79.2011 The Texas Department of Human Services (DHS) adopts amendments to sec.79. 2009 and sec.79.2011, concerning recipient fraud in the Food Stamp Program with, changes to the proposed text as published in the November 1, 1991, issue of the Texas Register (16 TexReg 6204). The justification for the amendments is to implement a more efficient manner of disposing of food stamp cases involving intentional program violation and of recovering benefits received as a result of program violation. The amendment to sec.79.2009 will function by giving individuals an opportunity to waive their right to an administrative disqualification hearing. The amendment to sec.79.2011 changes the procedure DHS initiates to recover overissuances when persons waive their right to an administrative disqualification hearing. During the comment period, DHS received comments from West Texas Legal Services, an attorney, and several individuals. All commenters opposed adoption of the amendments. The commenters raised three issues. Comment: The first issue concerned the possibility that the proposed rule revisions would expose the recipient charged with an intentional program violation to the use of information obtained in an administrative disqualification hearing for prosecution for criminal sanctions for the same offense. Response: Provisions of 7 Code of Federal Regulations (CFR), sec.273.16(e)(3) (H) and (f) provide that the hearing does not preclude the state or federal government from prosecuting the household member for intentional program violation in a civil or criminal court action, or from collecting the overissuances. The fact that evidence obtained in the course of prosecution of a civil sanction may be used in the prosecution of a criminal sanction, or vice versa, does not preclude the use of such information. Office of Inspector General (OIG) policy prohibits pursuit of both administrative and criminal disposition in the same fraud case. Comment: The second issue raised concern that the proposed rule revisions would violate the due process provisions of the federal or state constitutions. Response: DHS does not believe that the proposed rule revisions would violate due process. The rules provide for the recipient to receive: notice of the time, date, and place of hearing; notice of the charge against the household; a summary of the evidence and how and where the evidence can be examined; a warning that the decision will be based solely on information provided by DHS, if the recipient fails to appear at the hearing; a warning that a determination of intentional program violation will result in disqualification for benefits for a period of time and a statement as to which penalty time is being sought; a listing of the household members' rights, as provided in 7 CFR, sec.273.15(p); a statement of availability of legal representation; a copy of the hearing procedures; a statement that the accused individual had the right to remain silent concerning the charge, and that anything said or signed by the individual concerning the charge could be used against him in a court of law; an opportunity to admit or deny the facts as presented by DHS; and a statement that the remaining household members would be responsible for repayment of the resulting claim. These provisions, as set forth in 7 CFR, sec.273.16, satisfy all of the substantive and procedural requirements of "due process" as that term is presently defined by the courts. Comment: The third issue concerned providing for independent review of a client's alleged fraud case by someone in addition to the investigator assigned to investigate the case, before a waiver of a disqualification hearing is accepted. Response: As proposed, the evidence against a client is reviewed at two levels other than the caseworker to determine whether a hearing would be warranted. This review includes the investigator and the investigator's supervisor, is standard practice in all OIG cases, and exceeds the requirements of the federal regulations. DHS believes that it would be unnecessary and counterproductive to add a third level of review to what is intended to be an expedited and voluntary process for the client. DHS is adopting the amendments with changes needed to improve the clarity of the sections. The changes do not affect the intent of the sections. Section 79.2009(d) is changed to clarify that the individual who is alleged to have committed an intentional program violation may waive the administrative disqualification hearing. Also added to this subsection is a clarification that by waiving the hearing, the individual understands that disqualification will occur. Section 79.2011(i)(2) is adopted with a change to clarify that if there is no face-to-face contact between the investigator and client, DHS uses direct mail contact to give the client an opportunity to waive the hearing. The amendments are adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. sec.79.2009. Referral of Food Stamp Intentional Program Violation Claims to Administrative Disqualification Hearing Officer. (a)-(c) (No change.) (d) DHS gives individuals who are alleged to have committed an intentional program violation an opportunity to waive their right to an administrative disqualification hearing. By waiving this right, individuals acknowledge that they understand their rights and responsibilities, that disqualification will occur, and that they understand the disqualification period that applies to their case; and they agree to repay the overissuance without having a hearing. sec.79.2011. Collection Action on Food Stamp Intentional Program Violation Claims. (a)-(h) (No change.) (i) If the investigator interviews the person suspected of committing an intentional program violation and the person expresses that he does not want to have an administrative disqualification hearing and is willing to repay the overissuance, the following policies and procedures apply. (1) The investigator obtains the individual's signature on a repayment agreement form and on an administrative disqualification hearing waiver form. (2) By signing the waiver of hearing and repayment agreement forms, the recipient agrees that he does not want a hearing, that he will repay the overissuance, and that he understands that he will be disqualified from receiving food stamps for a period of time determined by whether it is the first, second, or third offense. If there is no face-to-face contact between the investigator and the client, the client may be given an opportunity to waive his right to a hearing through direct mail contact. (3) The investigator will not send the case to the hearing officer, but will initiate repayment and disqualification actions. (4) During the interview with the client, the investigator gives the client an opportunity to retract the waiver within seven workdays of signing the waiver form. If DHS receives a written retraction of waiver by the seventh day from the date the recipient signed the waiver, an administrative hearing will be scheduled and conducted. If DHS does not receive a written retraction of the waiver by the end of the seventh day, the waiver and repayment agreement remain valid, and no further appeals will be authorized. 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 January 17, 1992. TRD-9200832 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: March 1, 1992 Proposal publication date: November 1, 1991 For further information, please call: (512) 450-3765