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 IX. State Aircraft Pooling Board Chapter 181. General Provisions 1 TAC sec.181.9 The State Aircraft Pooling Board adopts new sec.181.9, concerning public access and testimony, without changes to the proposed text as published in the May 19, 1992, issue of the Texas Register (17 TexReg 3679). The new section sets forth provisions that allow the public to appear before the board and to speak on any issue under the jurisdiction of the board. The new rule will establish procedure for allowing the public to address the board. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 4413(34b), sec.5(b), which provide the State Aircraft Pooling Board with the authority to adopt rules to govern the calling and holding of meetings and the conduct of business. 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 June 29, 1992. TRD-9209036 Jerald A. Daniels Fiscal Officer State Aircraft Pooling Board Effective date: July 21, 1992 Proposal publication date: May 19, 1992 For further information, please call: (512) 477-8900 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 3. Oil and Gas Division Conservation Rules and Regulations 16 TAC sec.3.99 The Railroad Commission of Texas (commission) adopts new sec.3.99, concerning completion procedures for cathodic protection wells (Statewide Rule 99), with changes to the proposed text as published in the March 3, 1992, issue of the Texas Register(17 TexReg 1582). Adoption of the section is necessary to prevent pollution of ground water through improperly completed cathodic protection wells. The section defines terms used in the rule and requires operators to complete all cathodic protection wells drilled below 30 feet as specified in the section. In subsection (a)(3), the phrases "or depths" and "or isolated" were inserted to indicate that the Texas Water Commission may recommend that more than one depth may require protection or isolation from other depths. References throughout the section to "the protection depth" were changed to "any protection depth." The exemption depth was changed in subsection (b) to 30 feet from 20 feet. The term "or bentonite" was added following "cement" in subsection (e)(2)(A) and (3)(A). Because bentonite is specifically referenced throughout the section, subsection (f), which describes the quality of bentonite that may be used, is added. The Railroad Commission of Texas received numerous comments suggesting that subsection (b) should be changed so that cathodic protection wells drilled to a depth of 30 feet are exempted from the section. One commenter noted that a 10- foot cement plug in a shallow excavation well would be difficult and would make replacement of expended anodes a complex procedure. The Railroad Commission agrees that cathodic protection wells drilled to a depth of 30 feet would not create hazards to fresh water. The exemption depth is changed to 30 feet rather than 20 feet. One commenter requested the definition of "cathodic protection deep groundbed" used by the National Association of Corrosion Engineers be adopted rather than "cathodic protection well." The Railroad Commission rejects the proposed change in definitions because "cathodic protection well" more accurately describes the type of hole drilled, and the National Association of Corrosion Engineers definition applies only to those anodes installed at a depth of 50 feet or more. Regarding plugging materials, many commenters asserted that alternative materials such as bentonite, barite, or grouts could provide a permanent impervious watertight bond that would protect against pollution of ground water. The commission believes that subsection (e)(2)(B) and (3)(B) does permit the use of alternative materials or procedures. However, the commission has changed the language of subsection (e)(2)(A) and (3)(A) to include bentonite as an alternative to cement for surface plugs. The following commenters expressed general support for the proposed rule, although they suggested some changes: Maxus Exploration Company, Oryx Energy Company, and the Texas Water Commission. Other commenters who expressed concern about certain aspects of the proposed section are: Texas Mid-Continent Oil & Gas Association, Bass Engineering Company, Inc., TU Services, Marathon Oil Company, and Transcontinental Gas Pipe Line Corporation. The new section is adopted under the Texas Natural Resources Code, Title 3, sec.91.101 and sec.141.102, which authorizes the commission to adopt rules to prevent pollution of surface or subsurface water in the state. sec.3.99. Cathodic Protection Wells. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Cathodic protection well-Any well drilled for the purpose of installing one or more anodes to prevent corrosion of a facility associated with the production of oil, gas, or geothermal resources, such as a well casing, storage, and separation facility, or pipeline. (2) Project area-The geographic area in which a related group of cathodic protection wells is drilled. (3) Protection depth-Depth or depths at which usable quality water must be protected or isolated, as determined by the Texas Water Commission. (4) Commission-The Railroad Commission of Texas or its authorized representative. (b) Exemption. Any cathodic protection well that is drilled to a depth of 30 feet or less is not subject to the requirements of this section. (c) Determination of protection depth. Before drilling any cathodic protection well, an operator shall obtain a letter from the Texas Water Commission stating the protection depth or depths. (d) Drilling permits. (1) Wells that do not penetrate any protection depth. A cathodic protection well that does not penetrate any protection depth does not require a drilling permit. (2) Wells that penetrate any protection depth. A cathodic protection well that penetrates any protection depth must be drilled in accordance with the requirements of sec.3.5(g) of this title (relating to Application to Drill, Deepen, Reenter, or Plug Back) (Statewide Rule 5). (e) Completion. (1) Timing. A cathodic protection well must be completed as soon as possible after it is drilled. (2) Wells that do not penetrate any protection depth. A cathodic protection well that does not penetrate any protection depth must be completed in accordance with subparagraph (A) or (B) of this paragraph. (A) The operator must place at least a 10-foot cement or bentonite plug at the top of the well. The top of the plug shall be no less than three feet below the surface, and the remainder of the hole between the top of the plug and the surface shall be filled with drill cuttings or native soil. (B) Alternative completion procedures and materials may be utilized when the operator has demonstrated to the commission's satisfaction that the alternatives will protect usable quality water. (3) Wells that penetrate any protection depth. A cathodic protection well that penetrates any protection depth must be completed in accordance with subparagraph (A) or (B) of this paragraph. (A) The operator must either set and cement casing to the deepest protection depth penetrated or center a 100-foot cement plug across each protection depth penetrated and must place at least a 10-foot cement or bentonite plug at the top of the well. The top of the plug shall be no less than three feet below the surface, and the remainder of the hole between the top of the plug and the surface shall be filled with drill cuttings or native soil. (B) Alternative completion procedures and materials may be utilized when the operator has demonstrated to the commission's satisfaction that the alternatives will protect usable quality water. (f) Physical requirements for bentonite plugging materials. Bentonite materials used to plug cathodic protection wells shall be derived from naturally occurring, untreated, high swelling sodium bentonite that is composed of at least 85% montmorillonite clay and that meets the International Association of Geophysical Contractors (IAGC) recommended geophysical industry standard dated January 24, 1992, for the physical characteristics of bentonite used in seismic shot hole plugging. (g) Reporting. Within 30 days of completion of the last well in a project area, the operator shall submit a letter to the commission stating that each cathodic protection well in the project area has been completed in accordance with subsection (e) of this section. The letter must include the completion date for each well, the name and address of the operator, and the drilling permit and API numbers of the well, if applicable. A plat of the project area identifying cathodic protection well locations, counties, survey lines, scale, and northerly direction must be attached. In addition, a letter from the Texas Water Commission stating the protection depth or depths must be attached. (h) Abandonment. Upon abandonment of a cathodic protection well, any wires or vent pipe must be cut off at the top of the 10-foot surface plug, and the vent pipe must be securely capped or plugged. (i) Superconducting super collider. No provision of this section exempts any operator from compliance with sec.3.78 of this title (relating to Drilling Operations in the Vicinity of the Superconducting Supler Collider, Ellis County) (Statewide Rule 82). 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 June 29, 1992. TRD-9209079 Nolan Ward Hearings Examiner, Legal Division-General Law Railroad Commission of Texas Effective date: July 21, 1992 Proposal publication date: March 3, 1992 For further information, please call: (512) 463-6857 Part VI. Texas Motor Vehicle Commission Chapter 105. Advertising 16 TAC sec.sec.105.10, 105.14, 105.26-105.31 The Texas Motor Vehicle Commission adopts new sec.sec.105.10, 105.26-105.31, and an amendment to sec.105.14 concerning the commission's rules pertaining to the advertising of motor vehicle by new motor vehicle dealers, manufactures and distributors. Section 105.28 is adopted with changes to the proposed text as published in the May 19, 1992, issue of the Texas Register (17 TexReg 3680). Sections 105.10, 105.26, 105.27, and 105.29-105.31 are adopted without changes and will not be republished. New sec.105.10(d) and (e) Dealer Price Advertising, covers new types of promotions that have been developed since the rule was originally adopted. Section 105.10(d) also contains a disclosure suggested for manufacturer offered option discount packages. Section 105.10(e) contains a disclosure suggested for advertising rebates that are not available to the public as a whole (i.e., first time buyer rebates). In amended sec.105.14, language is added to require all used cars to be identified as "used" or "pre-owned" cars. New sec.105.26, Payment Disclosures-Lease will, make the commission's rules consistent with the Federal Trade Commission requirements for disclosures of lease payments. New sec.105.27, Bait Advertisement, corrects an oversight in the rules the commission previously adopted in which bait advertisement was defined but not prohibited, and in which the original sec.105.4 which did prohibit bait advertisement, was repealed by adoption of the new sec.105.4, Definitions. New sec.105.28, Lowest Price Claims, are prohibited because they are impossible to substantiate given the nature of the automobile business in which each sale is individually negotiated. New sec.105.29, Fleet Prices, are prohibited because the commission found this is an illusory claim in that fleet prices are arrived at between fleet purchasers and dealers through negotiation in much the same fashion as regular retail purchases and as such there are no set fleet prices. However, the officer of fleet prices is alluring to the consuming public. New sec.105.30, bankruptcy/liquidation sale, prohibits the use of false distress sales, and specifically those in which bankruptcy and liquidation are claimed as the distress, unless such is, in fact, the case. Finally, new sec.105.31, Finding of a Violation, is what had originally been sec.105.25 which was repealed by the adoption of the new sec.105.25 in the commission's earlier adoption. The commission declined to adopt sec.105.28(a) and adopted what was published as sec.105.28(b) as sec.105.28. The new section sec.105.30 is adopted in response to a petition requesting the adoption of the new rules filed by the Texas Automobile Dealers Association pursuant to the Administrative Procedure and Texas Register Act, sec.11. The remaining amendment and new sections are adopted in response to a request for the adoption by the enforcement staff of the commission pursuant to the Administrative Procedure and Texas Register Act, sec.11. The amendment and new sections are intended to cover new types of advertising which have been identified as false, misleading, or deceptive by the staff, the Texas Automobile Dealers Association, and the commission. The commission received comments on the proposed rules published May 19, 1992, from the following: Texas Automobile Dealers Association (TADA); and the Better Business Bureau of Metropolitan Houston (BBB). The comments from TADA opposed adoption of sec.105.28(a) and expressed the view that sec.105.28(a) did not address a practice (meet or beat claims) that was false, misleading, or deceptive and was in fact beneficial to the segment of the consumer public which does shop more than one dealership before purchasing a vehicle. Therefore, they urged the subsection not be adopted. The comments from BBB supplied the commission with articles and comments urging the adoption of subsection (b) because they are impossible to substantiate. The commission agreed with the comments of TADA and BBB and adopted only sec.105.28(b) and did not adopt sec.105.28(a). The new sections and amendment are adopted under the Texas Motor Vehicle Commission Code, sec.3.06, which provides the commission with authority to adopt rules necessary and convenient to effectuate the provisions of the Act. sec.105.28. Lowest Price Claims. Representing a lowest price claim or other similar superlative claim shall not be used in advertising. 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 June 18, 1992. TRD-9209031 Russell Harding Executive Director Texas Motor Vehicle Commission Effective date: July 21, 1992 Proposal publication date: May 19, 1992 For further information, please call: (512) 476-3587 TITLE 19. EDUCATION Part I. Texas Higher Education Coordinating Board Chapter 5. Program Development Subchapter H. Approval of Off-Campus and Out-of-District Instruction for Public Colleges and Universities 19 TAC sec.5.157 The Texas Higher Education Coordinating Board adopts the repeal of sec.5. 157, concerning approval of out-of-state classes, without changes to the proposed text as published in the March 13, 1992, issue of the Texas Register (17 TexReg 1864). The repeal will enable Texas professional work forces to be potentially more competitive with foreign nations. The new rules encourage institutions and students to develop and participate in educational opportunities that will increase skills in foreign languages, cultures, and business practices. The overall goal is to increase international competence and competitiveness of Texas citizens. No comments were received regarding adoption of the repeal. The repeal is adopted under the Texas Education Code, sec.61.051(j), which provides the Coordinating Board with the authority to adopt rules regarding Criteria and Procedures for Considering Lower-Division Courses Proposed Off- Campus by Senior Institutions and Out-of-District by Community Junior Colleges and Technical Institutes. 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 June 26, 1992. TRD-9209041 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: July 21, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 483-6160 The Texas Higher Education Coordinating Board adopts new sec.5.157, concerning approval of out-of-state classes, without changes to the proposed text as published in the March 13, 1992, issue of the Texas Register (17 TexReg 1864). The new section will enable Texas professional work forces to be potentially more competitive with foreign nations. The new section encourages institutions and students to develop and participate in educational opportunities that will increase skills in foreign languages, cultures, and business practices. The overall goal is to increase international competence and competitiveness of Texas citizens. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Education Code, sec.61.051(j), which provides the Coordinating Board with the authority to adopt rules regarding Criteria and Procedures for Considering Lower-Division Courses Proposed Off- Campus by Senior Institutions and Out-of-District by Community Junior Colleges and Technical Institutes. 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 June 26, 1992. TRD-9209040 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: July 21, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 483-6160 Chapter 9. Public Junior Colleges Subchapter I. Contractual Agreements 19 TAC sec.9.194 The Texas Higher Education Coordinating Board adopts an amendment to sec.9. 194, concerning contract instruction, without changes to the proposed text as published in the March 13, 1992, issue of the Texas Register (17 TexReg 1867). The amendment is necessary to clarify the existing rule as to what courses turned in for state funding are subject to the provisions of Chapter 9. The proposed change includes courses which are both turned in for state funding and delivered through contact with business and industry. The change will provide a clearer trail of auditable courses for the State Auditor's Office. A possible effect may be a change in the number of hours allowed for state funding under the current provisions of Chapter 9, Subchapter I. The rule will be modified from a requirement to a recommendation for training new trustees. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.sec.61.027, 61.051, 61.061, and 130.001, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules regarding contractual agreements. 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 June 26, 1992. TRD-9209038 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: July 21, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 483-6160 Chapter 21. Student Services Subchapter B. Determining Residence Status 19 TAC sec.21.34, sec.21.38 The Texas Higher Education Coordinating Board adopts amendments to sec.21. 34 and sec.21.38, concerning determining residence status, without changes to the proposed text as published in the March 13, 1992, issue of the Texas Register (17 TexReg 1867). Students at institutions should find more consistency in the way they are classified for tuition purposes. Texas residents should face fewer hassles in proving their eligibility for resident tuition. The changes provide for more consistency in procedures used by institutions in determining student residency classifications. The amendments will provide for the development and use of a group of core questions, approved by the staff of the Coordinating Board and the State Auditor's office, to identify students who should be allowed to pay resident tuition. Those not passing the screen of the core questions would be required to provide further evidence of their eligibility to pay the resident rate. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Education Code, sec.54.053, which provides the Coordinating Board with the authority to adopt rules regarding Determining Residence Status. 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 June 26, 1992. TRD-9209042 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: July 21, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 483-6160 Subchapter C. Hinson-Hazlewood College Student Loan Program for all Loans which are Subject to the Provisions of the Guaranteed Student Loan Program, the College Access Loan Program, the Health Education Assistance Loan Program, and the Health Education Loan Program 19 TAC sec.21.55 The Texas Higher Education Coordinating Board adopts an amendment to sec.21.55, without changes to the proposed text as published in the March 13, 1992, issue of the Texas Register (17 TexReg 1868). There will be better targeting of Hinson-Hazlewood college student loans to students who receive the promised, good quality schooling. The intent of this rule is to curtail further abuses of the Federal Guaranteed Student Loan Program by unscrupulous school administrators. The rule will protect students who may borrow Hinson-Hazlewood college student loans from unscrupulous school administrators whose schools receive the proceeds from the student loans but fail to provide the promised schooling to the students. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.52.54, which provides the Coordinating Board with the authority to adopt rules regarding Hinson-Hazlewood College Student Loan 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 June 26, 1992. TRD-9209044 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: July 21, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 483-6160 19 TAC sec.21.56 The Texas Higher Education Coordinating Board adopts an amendment to sec.21.56, concerning qualifications for loans, without changes to the proposed text as published in the March 13, 1992, issue of the Texas Register (17 TexReg 1868). The amendment will strengthen the program. This rule change is necessary because federal law regulating the Stafford Loans and Supplemental Loans for students, both of which are guaranteed student loans now require a favorable evaluation of credit reports. The effect of the change will cause the Hinson-Hazlewood Stafford and Supplemental Loan programs to be in compliance with federal law. Another effect will be to strengthen the program. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.52.54, which provides the Coordinating Board with the authority to adopt rules regarding the Hinson-Hazlewood College Student Loan 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 June 26, 1992. TRD-9209043 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: July 21, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 483-6160 Subchapter L. Paul Douglas Teacher Scholarship Program 19 TAC sec.21.316 The Texas Higher Education Coordinating Board adopts an amendment to sec.21.316, concerning scholarship conditions, without changes to the proposed text as published in the March 13, 1992, issue of the Texas Register (17 TexReg 1869). A few of the recipients of the Paul Douglas Teacher Scholarship may choose to teach in a state other than Texas. The United States benefits regardless of where the teacher teaches; Texas may lose a small number of the recipients who chose to teach in a sister state to fulfill the service obligation of the program. The effect of the changes will make the service obligation of the Paul Douglas Teacher Scholarship portable. A recipient of the federal funds through the Texas program may move to any state in the union to fulfill the service obligation required by the program. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.52.54, which provides the Coordinating Board with the authority to adopt rules regarding Scholarship Conditions. 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 June 26, 1992. TRD-9209045 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: July 21, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 483-6160 Subchapter S. Vocational Nursing Student Scholarship Programs 19 TAC sec.21.596, sec.21.600 The Texas Higher Education Coordinating Board adopts amendments to sec.21. 596 and sec.21.600, concerning vocational nursing student scholarship programs, without changes to the proposed text as published in the March 13, 1992, issue of the Texas Register (17 TexReg 1869). The new program will allow good vocational nursing students who are not eligible for previously existing scholarship programs because they are neither from rural communities nor from ethnic minorities, to receive financial assistance to meet college costs. The changes will create an additional scholarship program for which rural and minority students could qualify, but which would also be open to qualified students who are not from rural backgrounds and/or from a minority ethnic group. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Education Code, sec.61.656, which provides the Coordinating Board with the authority to adopt rules regarding Vocational Nursing Student Scholarship 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 June 26, 1992. TRD-9209046 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: July 21, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 483-6160 Subchapter AA. Texas-Mexico Reciprocal Education Exchange Program 19 TAC sec.sec.21.901-21.909 The Texas Higher Education Coordinating Board adopts amendments sec.sec.21. 901-21.909, concerning student services, without changes to the proposed text as published in the March 13, 1992, issue of the Texas Register (17 TexReg 1870). The amendments will bring the operations of the Exchange Student program more into alignment with the expectations of the bill's sponsor and participating institutions. The amendments will provide for the participation of faculty and staff as well as students in the exchange program between institutions of higher education in Texas and in Mexico. The changes should encourage exchanges between Texas public institutions of higher education and colleges in Mexico. It is anticipated that the exchange candidates from Mexico will often be staff or faculty members, while the participants from Texas are more likely to be undergraduate or graduate students. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Education Code, sec.sec.54.060, which provides the Coordinating Board with the authority to adopt rules regarding the Texas-Mexico Reciprocal Educational Exchange 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 June 26, 1992. TRD-9209047 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: July 21, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 483-6160 Chapter 25. Retirement Annuity Programs Subchapter A. Retirement Annuity Programs 19 TAC sec.25.11 The Texas Higher Education Coordinating Board adopts new sec.25.11, concerning employee notification requirements, without changes to the proposed text as published in the March 13, 1992, issue of the Texas Register (17 TexReg 1871). Institutional employees who become eligible to elect ORP in lieu of TRS will be provided sufficient basic information on the two programs to make an inform decision. The new rules will ensure that all employees of public institutions of higher education in Texas who become eligible to elect the Option Retirement Program (ORP) in lieu of the Teacher Retirement System (TRS) are provided uniform and unbiased background information on which to base their decision and to ensure that such employees are made aware that choosing ORP in lieu of TRS entails certain responsibilities for the participant, including selection and monitoring of vendors and investments. Institutions will be required to provide written introductory information on ORP (prepared by Coordinating Board staff) to all employees who become eligible to elect ORP in lieu of TRS. The Teacher Retirement System of Austin was generally supportive of the proposed rule as a means of better informing employees about the nature of ORP. The agency felt that the rule can be strengthened by adding the requirement that the institution also provide TRS information to the employees on or before the beginning of the decision-making period. The Coordinating Board agreed with comments concerning dissemination of TRS' information; however, their suggested revision to the rule is unnecessary because the information provided by the Coordinating Board includes information on TRS. The new section is adopted under the Texas Government Code, sec.830.002(c) and sec.830.101, which provides the Coordinating Board with the authority to adopt rules regarding Retirement Annuity 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 June 26, 1992. TRD-9209039 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: July 21, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 483-6160 TITLE 22. EXAMINING BOARDS Part XXX. Texas State Board of Examiners of Professional Counselors Chapter 681. Professional Counselors The Texas State Board of Examiners of Professional Counselors (board), with approval of the Texas Board of Health, adopts amendments to existing sec.681.21, sec.681.33, sec.681.36, sec.681.40, sec.681.52, sec.681.53, sec.681.64, sec.681.65, sec.681.82, sec.681.83, sec.681.93, sec.681.122, sec.681.127, sec.681.174, sec.681.178, sec.681.192, sec.681. 196, sec.681.212, sec.681.213, sec.681.215, sec.681.216, and sec.681.220; and adopts new sec.681.42, sec.681.128, and sec.681.197, concerning professional counselors. Sections 681.83 and 681.174 are adopted with changes to the proposed text as published in the March 22, 1992, issue of the Texas Register (17 TexReg 1877). The remaining sections are adopted without changes and will not be republished. The amendments and new sections establish renewal card replacement and application material fees; bring rules prohibiting remuneration for referrals into line with new state laws; clarify advertising and announcements of services as it applies to degrees from foreign universities; provide for revocation or suspension based on information received concerning an applicant after issuance of the license; change suspense dates concerning applications from "received by" to "postmarked"; further define allowable categories for required references; provide that applicants (interns) comply with the code of ethics while obtaining supervised experience; extend the date by which supervisors must have obtained supervisory training and be on a list of approved supervisors by one year; clarify notification procedures for persons approved to sit for the examinations; establish deadlines for renewals, late renewals, and penalties as postmark dates; authorize renewal denials for persons in default on guaranteed student loans; clarify the fact that teaching or consultation to meet continuing education requirements must be at the graduate level; establish criteria for accepting continuing education approved by colleges or universities and board approved sponsors; require documentation of hours for continuing education credit based on auditing of graduate level courses; define delivery procedures for notification of proposed denial, revocation, or suspensions; amend the listing of felonies and misdemeanors that must be considered when licensing persons with criminal backgrounds; outline renewal procedures in cases of suspension, revocation, or denial of licensure; establish that failure to appear or be represented at a hearing results in waiver to the right to a hearing; define parties to a hearing; outline procedures relative to subpoenas; further define the board's authority concerning final orders or decisions following the hearing; and make other minor administrative changes. No comments were received from the public; however, board staff recommended minor editorial changes to sec.681.83 and sec.681.174. Subchapter A. The Board 22 TAC sec.681.21 The amendment is adopted under Texas Civil Statutes, Article 4512g, sec.6, which provide the Texas State Board of Examiners of Professional Counselors, subject to approval of the Texas Board of Health, with authority to adopt and revise rules that are necessary to administer the Licensed Professional Counselor 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 June 29, 1992. TRD-9208983 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: July 20, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 834-6628 Subchapter B. The Practice of Counseling 22 TAC sec.sec.681.33, 681.36, 681.40, 681.42 The amendments and new section are adopted under Texas Civil Statutes, Article 4512g, sec.6, which provide the Texas State Board of Examiners of Professional Counselors, subject to approval of the Texas Board of Health, with authority to adopt and revise rules that are necessary to administer the Licensed Professional Counselor 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 June 29, 1992. TRD-9208984 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: July 20, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 834-6628 Subchapter C. Application Procedures 22 TAC sec.681. 52, sec.681.53 The amendments are adopted under Texas Civil Statutes, Article 4512g, sec.6, which provide the Texas State Board of Examiners of Professional Counselors, subject to approval of the Texas Board of Health, with authority to adopt and revise rules that are necessary to administer the Licensed Professional Counselor 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 June 29, 1992. TRD-9208985 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: July 20, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 834-6628 Subchapter D. Academic Requirements for Examination and Licensure 22 TAC sec.681.64, sec.681.65 The amendments are adopted under Texas Civil Statutes, Article 4512g, sec.6, which provide the Texas State Board of Examiners of Professional Counselors, subject to approval of the Texas Board of Health, with authority to adopt and revise rules that are necessary to administer the Licensed Professional Counselor 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 June 29, 1992. TRD-9208986 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: July 20, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 834-6628 Subchapter E. Experience Requirements for Examination and Licensure 22 TAC sec.681.82, sec.681.83 The amendments are adopted under Texas Civil Statutes, Article 4512g, sec.6, which provide the Texas State Board of Examiners of Professional Counselors, subject to approval of the Texas Board of Health, with authority to adopt and revise rules that are necessary to administer the Licensed Professional Counselor Act. sec.681.83. Supervisor Requirements. (a) (No change.) (b) A supervisor under subsection (a)(1) or (2) of this section must have met the following requirements. (1) (No change.) (2) A person who begins the supervision of a counseling intern on or after January 1, 1995, in addition to the requirements stated in paragraph (1) of this subsection, must have completed 40 clock hours of training in the supervision of counseling services through an accredited graduate course, training program, or clinical supervision provided by a person who meets the requirements of this section. (3) Evidence of a supervisor meeting the requirements of this section may be submitted with a supervision contract or with the board's approved supervised experience documentation form. After July 1, 1996, applicants for license must apply for supervisory approval at the time of application. Approved supervisors shall be listed on the roster of supervisors prepared by the board. Credentials must be submitted with the roster application form. (c) (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 June 29, 1992. TRD-9208987 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: July 20, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 834-6628 Subchapter F. Licensure Examinations 22 TAC sec.681. 93 The amendment is adopted under Texas Civil Statutes, Article 4512g, sec.6, which provide the Texas State Board of Examiners of Professional Counselors, subject to approval of the Texas Board of Health, with authority to adopt and revise rules that are necessary to administer the Licensed Professional Counselor Act. The amendment will affect Texas Civil Statutes, Article 4512g. 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 June 29, 1992. TRD-9208988 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: July 20, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 834-6628 Subchapter H. License and Specialty Renewal and Inactive Status 22 TAC sec.sec.681.122, 681.127, 681.128 The amendments and new section are adopted under Texas Civil Statutes, Article 4512g, sec.6, which provide the Texas State Board of Examiners of Professional Counselors, subject to approval of the Texas Board of Health, with authority to adopt and revise rules that are necessary to administer the Licensed Professional Counselor Act. The amendments and new section will affect Texas Civil Statutes, Article 4512g. 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 June 29, 1992. TRD-9208989 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: July 20, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 834-6628 Subchapter K. Continuing Education Requirements 22 TAC sec.681.174, sec.681.178 The amendments are adopted under Texas Civil Statutes, Article 4512g, sec.6, which provide the Texas State Board of Examiners of Professional Counselors, subject to approval of the Texas Board of Health, with authority to adopt and revise rules that are necessary to administer the Licensed Professional Counselor Act. sec.681.174. Types of Acceptable Continuing Education. Continuing education undertaken by a counselor shall be acceptable if the experience falls in one or more of the following categories: (1)-(2) (No change.) (3) teaching or consultation in graduate level programs such as institutes, seminars, workshops, and conferences which are designed to increase professional knowledge related to the practice of counseling provided that such teaching and consultation is not part of, or required as a part of, one's employment; (4) completion of graduate academic courses in areas supporting development of skill and competence in counseling at an institution which meets the accreditation standards acceptable to the board (e.g., accreditation by a recognized accrediting agency); (5) participation in case supervision or consultation provided that such supervision or consultation is not required as a part of a counselor's employment; is conducted according to stated training or didactic goals such as expertise in specific techniques including supervision techniques or certification in specialty areas of counseling; and is conducted by an appropriately state-licensed or state-certified mental health professional who meets board requirements for supervisors, demonstrates training and expertise in the specific area for which supervision is provided, and has received prior approval by the board for the program which does not exceed six months in length; or (6) participation or teaching in programs (e.g., institutes, seminars, workshops, or conferences) which are approved or offered by an accredited college or university or by a nationally recognized professional organization in the mental health field or its state or local equivalent organization. (A) The board shall maintain and make available on request a listing of acceptable professional organizations. (B) This paragraph shall apply to continuing education hours required for any renewal occurring after the effective date of this paragraph. 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 June 29, 1992. TRD-9208990 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: July 20, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 834-6628 Subchapter L. Complaints and Violations 22 TAC sec.sec.681.192, 681.196, 681.197 The amendments and new section are adopted under Texas Civil Statutes, Article 4512g, sec.6, which provide the Texas State Board of Examiners of Professional Counselors, subject to approval of the Texas Board of Health, with authority to adopt and revise rules that are necessary to administer the Licensed Professional Counselor Act. The amendments and new section will affect Texas Civil Statutes, Article 4512g. 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 June 29, 1992. TRD-9208991 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: July 20, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 834-6628 Subchapter M. Formal Hearings 22 TAC sec.sec.681.212, 681.213, 681.215, 681.216, 681.220 The amendments are adopted under Texas Civil Statutes, Article 4512g, sec.6, which provide the Texas State Board of Examiners of Professional Counselors, subject to approval of the Texas Board of Health, with authority to adopt and revise rules that are necessary to administer the Licensed Professional Counselor 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 June 29, 1992. TRD-9208992 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: July 20, 1992 Proposal publication date: March 13, 1992 For further information, please call: (512) 834-6628 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 38. Chronically Ill and Disabled Children's Services 25 TAC sec.sec.38.3, 38.4, 38.7, 38.10-38.12 The Texas Department of Health (department) adopts amendments to sec.sec.38.3, 38.4, 38.7, 38.10-38.12, concerning chronically ill and disabled children's (CIDC). Section 38.3 is adopted with changes to the proposed text as published in the May 1, 1992, issue of the Texas Register (17 TexReg 3122). Sections 38. 4, 38.7, and 38.10-38.12 are adopted without changes and will not be republished. The sections cover eligibility for client services, covered services, ambulatory surgical care facilities, cardiac outreach clinic guidelines, guidelines for a cardiac center to be approved through the Chronically Ill and Disabled Children's (CIDC) Services Program, and bone marrow transplant center guidelines. The amendments modify determination of the applicant's income who is over the age of 18; extend the period of temporary eligibility for medicaid eligible clients from 45 days to 60 days. The 45-day period for temporary eligibility was considered inadequate and had the potential to create a gap in services for CIDC eligible clients. The amendments also clarify that the requirement for the orthotists and prosthetists to be certified by the American Board for Certification in Orthotics and Prosthetics will be for those providers enrolled after November 1, 1991. Providers enrolled before November 1, 1991, will not be required to be certified. In addition the amendments clarify the provisions regarding ambulatory surgical centers, cardiac outreach clinic guidelines, cardiac center guidelines, and bone marrow transplant center by eliminating the references to the CIDC advisory committees. The CIDC advisory committees' structure and functions have been changed by the Board of Health and the advisory committees will no longer be a part of the monitoring of CIDC specialty centers. The department's CIDC Program will be responsible for monitoring the qualifications of the CIDC specialty centers. There was only one comment concerning the proposed sections. Comment: Concerning sec.38.3(3)(A)(v), a commenter noted that the word "through" was deleted unintentionally from the last sentence. Response: The department agrees and has added the word "through" to the last sentence. The comment was received from a CIDC staff person. The commenter was for the sections with the exception of the deleted word. The amendments are adopted under the Health and Safety Code, Chapter 35, which provides the Texas Board of Health with the authority to adopt rules concerning the Chronically Ill and Disabled Children's (CIDC) Services Program; and sec.12.001 which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the Commissioner of Health. sec.38.3. Eligibility for Client Services. In order for an individual to be eligible for the Chronically Ill and Disabled Children's Services (CIDC) Program, the individual must meet the medical, financial, and other criteria in this section. (1)-(2) (No change.) (3) Financial criteria. Financial need is established on the basis of household income and assets which are legally available to the family. (A) Household income. (i) (No change.) (ii) Income includes earned wages, pensions or allotments, child support payments, alimony, or any monies received on a regular basis for support purposes. Supplementary Security Income (SSI) for the disabled child is not included as income. Verification of income will be required as set out in paragraph (8) of this section. If the applicant is over the age of 18, is not in school, and has been gainfully employed and/or is living independently, eligibility will be determined by the applicant's income. (iii)-(iv) (No change.) (v) Applicants who appear to be financially eligible for Medicaid and meet all other CIDC Program requirements will be given temporary eligibility for 60 days. During that time the applicant must apply for Medicaid and notify the CIDC Program of Medicaid's determination. If the applicant fails to follow through with the Medicaid application, eligibility will automatically expire at the end of 60 days. (B) (No change.) (4)-(9) (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 June 29, 1992. TRD-9208995 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: July 20, 1992 Proposal publication date: May 1, 1992 For further information, please call: (512) 458-7355 Chapter 139. Abortion Facilities Subchapter A. Abortion Facility Reporting and Licensing 25 TAC sec.sec.139.4, 139.8, 139.9 The Texas Department of Health (department) adopts amendments to sec.sec.139.4, 139.8, and 139.9, concerning abortion facility reporting and licensing. Section 139.4 and sec.139.9 are adopted with changes to the proposed text as published in the April 24, 1992, issue of the Texas Register (17 TexReg 2921). Section 139.8 is adopted without changes and will not be republished. The amendments do the following: delete the requirement about a facility or a facility employee soliciting referrals by the promise of or the actual division of fees; require a facility to provide written discharge instructions to the patient to include a list of complications, a statement of the facility's plan to respond to the patient who experiences complications, and information concerning the necessity for a post-abortion examination; require a facility to develop and implement policies and procedures for examination and referral of patients who report complications and a system for keeping records for the purpose of resolving problems; expand and clarify the requirement that a facility make provision for a post-abortion examination or referral; add a provision requiring a facility to have written policies concerning the prevention of the human immunodeficiency virus and the hepatitis B virus by health care workers in the facility; add time frames concerning the department notifying a facility that a plan of correction is not acceptable and the facility's resubmission of an acceptable plan of correction; and add a provision concerning the renewal of an annual license by a licensee on active duty with the United States armed forces outside the State of Texas. The following comments were received concerning the proposed amendments. Comment: Concerning sec.139.4(16)(B)(ii), one commenter stated that the rule does not allow for extenuating circumstances when a facility is unable to contact the patient, i.e. the patient's telephone line is busy; patient leaves an incorrect phone number; facility staff person caught in traffic and unable to get to a phone. Response: The department agrees and has added language to require the facility to make every reasonable effort to respond and to require the facility at the time of discharge to inform the patient, that in the event of a complication, to contact the facility, emergency medical service or present themselves for care at the emergency room of a hospital. Comment: Concerning sec.139.4(16)(B)(iii), one commenter strongly recommended that an individual responding to a patient who experiences any complications listed in the discharge instructions be a physician, registered nurse, or a licensed vocational nurse. Response: The department agrees with the commenter and has added the language. The remainder of the sentence "qualified to render medical and psychosocial advice to the patient" was considered redundant and was deleted. The department made a minor editorial change to sec.139.9(f)(6). A licensed abortion facility and the Texas Board of Health provided the only comments. The amendments are adopted under the authority of the Health and Safety Code, sec.245.009 and sec.245.010, which provides the Texas Board of Health with the authority to adopt rules concerning the issuance, renewal, denial, suspension, and revocation of a license to operate an abortion facility and certain minimum standards concerning abortion facilities; and sec.12.001, which provides the Texas Board of Health with authority to adopt rules for the performance of every duty imposed by law upon the Texas Board of Health, the Texas Department of Health and the commissioner of health. sec.139.4. Standards for All Licensed Abortion Facilities. In addition to complying with all applicable federal, state, and local laws and regulations, all licensed abortion facilities and their staffs shall meet the following standards. (1)-(4) (No change.) (5) The facility shall maintain a daily patient roster of all patients receiving abortion services. This daily patient roster shall be retained for a period of five years. (6) The facility shall maintain a clinical record for each patient which is maintained according to professional standards. Identifying information required for the annual abortion report should be readily retrievable from the clinical record. (7) The clinical record shall contain: patient identifying information; name of physician; diagnosis; history and physical; laboratory reports; tissue reports; allergies/drug reactions; physician's orders; clinical notes; counseling notes; signed patient consent form; medication administration records; and discharge summary. If the results of medical examination or written referral are obtained, the document(s) will be incorporated in the clinical record. Notations of all pharmaceutical agents shall include the time and date administered, the name of the individual administering the agent, and the signature of the person making the notation if different than the individual administering the agent. (8) Clinical records for adults shall be retained for five years from the time of discharge and clinical records for minors shall be retained five years past the age the patient reaches majority. All clinical records shall be safeguarded against loss and unofficial use. (9) An abortion shall be performed only by a physician as defined by the provisions of the Texas Medical Practice Act, Texas Civil Statutes, Article 4495b. (A) The patient care service of the facility must be provided under the direction of a physician or registered nurse who assumes responsibility for the employees' performance in the facility. A registered nurse or licensed vocational nurse must be in the facility whenever there is a patient in the operating room or recovery room. (B) Professional and nonprofessional personnel providing patient care in the facility should be given the training and orientation period appropriate to the needs and level of preparation as required by the individual job description. (10) The attending physician shall be responsible for obtaining and documenting an adequate preoperative history, physical exam, and appropriate laboratory studies, including verification of pregnancy. (11) Counselors must be qualified by education and/or training to provide counseling services. Appropriate counseling shall be provided to each patient to: (A) establish that the patient understands the nature and consequences of the procedure and recognizes alternatives to abortions. If the patient consents to the procedure, a consent form shall be signed by the patient; (B) prepare the patient for surgery in a manner that facilitates her safety and comfort; and (C) assist the patient in reaching a decision about the method of post- procedure birth control she will use, if any, and respect her choices. (12) Operative care shall be provided according to acceptable surgical standards. A patient shall be attended at all times while in the treatment and recovery room. (13) The recovery room(s) at the facility must be supervised by a physician or registered nurse. (14) A physician must be immediately available for the facility while any patient is in the recovery room. (15) A patient must be fully reactive and her vital signs must be stable before she can be discharged from the facility by written order of the attending physician. (16) Written discharge instructions shall be given to each patient, a copy of which shall be signed by the patient and included in the patient's record. Each facility shall follow its instructions which shall include: (A) a list of complications (developed by the facility in conjunction with a physician who practices in the facility) that warrant the patient contacting the facility, which shall include but not be limited to: (i) pain; (ii) temperature; and (iii) bleeding; (B) a statement of the facility's plan to respond to the patient in the event the patient experiences any of the complications listed in the discharge instructions to include: (i) the mechanism by which the patient may contact the facility on a 24-hour basis by telephone answering machine or service or by direct contact with an individual; (ii) the facility's requirement that every reasonable effort be made and documented to respond to the patient within 30 minutes of the patient's call; (iii) assurance that the responding individual shall be a physician, registered nurse, or licensed vocational nurse; and (iv) information that the patient may also contact the emergency medical service or present for care at the emergency room of a hospital in addition to contacting the facility; and (C) information concerning the need for a post-abortion examination. (17) The facility shall develop and implement written policies and procedures for: (A) examination or referral of all patients who report complications, as identified in the list required by paragraph (16)(A) of this subsection, to the facility after an abortion procedure. The written policy and procedure shall require: (i) the facility to maintain a written system of documentation of patients who report post-abortion complications within 14 days of the procedure date; (ii) documentation of the facility's action following a patient's reporting of post-abortion complications to be placed in the patient's record; and (iii) the patients' records to be maintained for five years; and (B) periodic review of the record keeping system for post-abortion complications to identify problems and potential problems and to make changes in order to resolve the problems. (18) All fetal tissue must be examined grossly at the time of the procedure by the attending physician or a trained assistant under the supervision of a physician. The results of the tissue examination shall be recorded in the patient's chart. (19) In the absence of visible fetal parts or placenta, the tissue may be examined under a low power microscope for the detection of villi. If this examination is inconclusive, the tissue shall be sent to a pathology lab. (20) A facility shall meet the requirements set forth by the department in sec.sec.1.131-1.137 of this title (relating to Definition, Treatment and Disposition of Special Waste from Health Care Related Facilities). (21) The facility must have a readily accessible written protocol for managing medical emergencies and the transfer of patients requiring further emergency care to a licensed hospital. The facility shall ensure that the physicians who practice at the facility have admitting privileges or have a working arrangement with a physician(s) who has admitting privileges at a local hospital in order to ensure the necessary back-up for medical complications. (22) The facility must be in compliance with all state and federal laws pertaining to handling of drugs. (23) The facility must have the necessary equipment and personnel for cardio and pulmonary resuscitation as described in sec.139.13 of this title (relating to Clinical and Equipment Standards for Licensed Facilities Administering Local Anesthesia). (24) Surgical instruments must be sufficient in number to permit individual sterilization of the instruments used for each procedure and adequate to perform conventional cervical dilatation and curettage. Written procedures shall be maintained for current acceptable practices regarding processing, sterilization, storing, and distribution of clean and sterile supplies and equipment. (25) Equipment for vacuum aspiration must be electrically safe and designed to prevent reverse pump action. (26) The physical plant must be clean and in good repair at all times. To promote a functional and sanitary environment, the facility must: (A) equip each treatment room so that procedures can be performed in a manner that assures the physical safety of all individuals in the area; (B) have a separate recovery room; (C) have a written protocol for emergency evacuation for fire and other disasters; and (D) store hazardous cleaning solutions and compounds in a secure manner; substances shall be labeled. (27) Projects involving alterations of and additions to existing buildings shall be programmed and phased so that on-site construction will minimize disruptions of existing functions. Access, exitways, and fire protection shall be maintained so that the safety of the occupants will not be jeopardized during construction. (28) Complications that result in the death of a patient must be reported immediately by phone to the director, but not later than two business days after the incident. (29) Each facility shall prominently and conspicuously post the license issued under the Act for display in a public area of the facility that is readily accessible to patients, employees, and visitors. (30) All licensed abortion facilities shall provide the patient and/or her guardian at time of admission a written statement identifying the department as the responsible agency for facility complaint investigations. The statement shall inform persons to register complaints with the Director, Health Facility Licensure and Certification, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. Complaints must be registered with the department in writing. A complainant must provide his/her name. All complaints shall be confidential. (31) A facility shall adopt, implement and enforce a written policy to ensure compliance of the facility and all of the health care workers within the facility with the Health and Safety Code, Chapter 85, Subchapter I relating to the prevention of the transmission of human immunodeficiency virus and Hepatitis B virus by infected health care workers. A health care worker is any person who furnishes health care services in a direct patient care situation under a license, certificate, or registration issued by the State of Texas or a person providing direct patient care in the course of a training or educational program. The facility's policy shall establish procedures for monitoring compliance with universal precautions. (32) A facility shall require its employees to complete an educational course about HIV infection based on the model education program developed by the department. (33) A facility shall adopt, implement and enforce a written policy to ensure compliance of the facility and all its employees and contractors in the facility with the Health and Safety Code, sec.161.091, relating to the prohibition of illegal remuneration for securing or soliciting patients or patronage. sec.139.9. Renewal of Annual License. (a)-(e) (No change.) (f) If a licensee fails to timely renew his or her license on or after August 1, 1990 because the licensee is or was on active duty with the armed forces of the United States of America serving outside the State of Texas, the licensee may renew the license pursuant to this subsection. (1) Renewal of the license may be requested by the licensee, the licensee's spouse, or an individual having power of attorney from the licensee. The renewal form shall include a current address and telephone number for the individual requesting the renewal. (2) Renewal may be requested before or after the expiration of the license. (3) A copy of the official orders or other official military documentation showing that the licensee is or was on active military duty serving outside the State of Texas should be filed with the department along with the renewal form. (4) A copy of the power of attorney from the licensee shall be filed with the department along with the renewal form if the individual having the power of attorney executes any of the documents required in this section. (5) A licensee renewing under this subsection shall pay the applicable renewal fee. (6) A licensee is not authorized to operate the facility for which the license was obtained after the expiration date of the license unless and until the licensee actually renews the license. (7) This section applies to a licensee who is a sole practitioner or a partnership with only individuals as partners where all of the partners were on active duty with the armed forces of the United States serving outside the State of Texas. 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 June 29, 1992. TRD-9208982 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 1, 1992 Proposal publication date: April 24, 1992 For further information, please call: (512) 834-6650 Chapter 145. Long-Term Care Subchapter H. Long-Term Care Services For the Elderly. 25 TAC sec.145.121 The Texas Department of Health (department) adopts new sec.145.121, concerning long-term care services for the elderly; without changes to the proposed text as published in the March 27, 1992, issue of the Texas Register (17 TexReg 2246). The new section concerns the coordination of long-term care services for the elderly. Section 145.121 adopts by reference a Texas Department on Aging rule in 40 TAC, sec.251.13, concerning the Memorandum of Understanding (MOU) between the Department, the Texas Department of Human Services (TDHS), the Texas Department on Aging (TDoA), and the Texas Mental Health and Mental Retardation (TMHMR). The section implements Senate Bill 377, 72nd Legislature, 1991, which requires that the four agencies develop and adopt by rule an MOU which clearly outlines each agency's responsibilities in the development, coordination, and implementation of long-term care services for the elderly and the revision of the Texas Long-Term Care State Plan for Elderly. No comments were received regarding the adoption of the new section. The new section is adopted under the Human Resources Code, sec.101.031 (Senate Bill 377, sec.1, 72nd Legislative, 1991), which provides the Texas Department on Aging, the Texas Department of Human Services, the Texas Department of Health, and the Texas Mental Health and Mental Retardation with the authority to develop and adopt a Memorandum of Understanding concerning each agency's responsibilities biennially revising and updating the Texas Long-Term Care State Plan for the Elderly; and Health and Safety Code, sec.12. 001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health and the Commissioner of Health. 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 June 29, 1992. TRD-9208996 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: July 20, 1992 Proposal publication date: March 27, 1992 For further information, please call: (512) 458-7709 Chapter 289. Occupational Health and Radiation Control Texas Regulations for Control of Radiation 25 TAC sec.289.120 The Texas Department of Health (department) adopts an amendment to sec.289.120, concerning Texas regulations for the control of radiation, with changes to the proposed text as published in the March 10, 1992, issue of the Texas Register (17 TexReg 1808). Section 289.120 adopts by reference Part 36 of the Texas Regulations for Control of Radiation (TRCR) titled, "Radiation Safety Requirements for Well Logging Service Operations and Tracer Studies." Part 36 is also adopted with changes. The amendment to Part 36 concerns additions to the rule and clarifications of existing portions of the rule, as follows. The word "wireline" was changed in the title and throughout the rule to include other technologies used in well logging operations, such as measurement-while- drilling. The word "subsurface" was deleted from the title and throughout the rule because the rule applies to all aspects of tracer studies, not just those that are subsurface. In addition, references to tracer studies were added and expanded throughout the rule to more adequately address the use, storage, handling, and disposition of tracer materials. Several definitions were added or modified to address additions to the rule and to clarify existing portions of the rule. The section of the rule concerning radiation survey instrumentation was expanded to specify appropriate instrumentation, calibration, and who is qualified to perform calibrations. Also, the measurement range required for instrumentation was increased. This requirement is designated an item of compatibility by the Nuclear Regulatory Commission (NRC) and, in accordance with the agreement between the State of Texas and NRC, the department must adopt a similar rule. The rule was expanded to address requirements for uranium sinker bars and radioactive markers to comply with NRC compatibility requirements. Previously, the rule required each sealed source used in downhole operations to individually meet the criteria of ANSI N542. To comply with NRC compatibility requirements, the rule was amended to specifically list applicable ANSI N542 criteria and require the prototype of each sealed source to meet the criteria. The training requirements for logging supervisors and logging assistants were expanded to specify the number of hours of formal training required, to require successful completion of a written examination administered by the licensee/registrant, and to require annual radiation safety review of all logging personnel. Other sections of the rule were changed or deleted to clarify and more adequately specify the requirements for well logging and/or tracer study operations. The following comments were received concerning the proposed section. One commenter suggested changing all references from milliroentgen or mR to millirem. TRCR Part 11 makes reference to both definitions. They are used simultaneously throughout the rules. Therefore, the department made no change to the rule as a result of the comment. One commenter felt the definition of "personal supervision" was too restrictive. The department agreed and changed the rule accordingly. One commenter questioned whether the definition of "residential location" includes an offshore rig or a remote land rig. An offshore rig is considered a temporary job site and not a permanent site. Therefore, the department made no change to the rule as a result of the comment. One commenter felt the definition of "transport container" needed clarification. DOT does not approve each specific Type A package. The department agreed and changed the rule accordingly. One commenter suggested the word "pull" in the definition of "uranium sinker bar" be changed to "aid in the descent." The word "pull" does not seem appropriate. The department agreed and changed the rule accordingly. One commenter suggested the definition of "wireline" be changed to "... electrical conductors and used to lower...." The addition of the word "and" may create more confusion than clarification. Therefore, the department made no change to the rule as a result of the comment. Two commenters requested clarification of the rule to specify that contamination control procedures are the responsibility of the licensee and the well operator, well owner, drilling contractor, or land owner. The department agreed and made the necessary corrections. One commenter questioned the absence of the equivalent to 10 Code of Federal Regulations 39.51 regarding the use of a sealed source in a water well without a surface casing. The department agreed. However, such an addition would constitute a substantive change to the proposed rule and would require re- proposal. Therefore, the department will address the addition in the future. The department made no change to the rule as a result of the comment. One commenter felt the need for having additional calibrated and operable radiation survey instrumentation at each field station and temporary job site where tracer material is used would have a significant economic impact on the industry. Based upon department experience, operations using tracer materials have a significant potential for causing contamination. Therefore, the department made no change to the rule as a result of the comment. One commenter requested clarification of the requirement for each radiation survey instrument to be calibrated for the types of radiation used and at energies appropriate for use. The rule allows for calculations, rather than radiation surveys to be made for neutron sources. Therefore, the neutron meters are not required. The department made no change to the rule as a result of the comment. One commenter suggested rearranging the order of the tests required to maintain the integrity for the sealed source(s) prototype used in downhole operations. This is an item of compatibility with NRC. Therefore, it should remain in the order established. The department made no change to the rule as a result of the comment. One commenter felt the change in performance criteria for the pressure testing of the sealed source(s) prototype is going a step backwards as far as a safety requirement. Requiring pressure testing of each sealed source to be used downhole presents a greater potential for contamination than testing just the prototype. Also, this requirement is an item of compatibility with NRC. Therefore, the department made no change to the rule as a result of the comment. One commenter recommended the training of individuals using tracers be a part of sec.36.20 instead of Appendix 36-A. TRCR 36.20 requires training in the subjects outlined in Appendix 36-A. Appendix 36-A, VIII specifically states that individuals performing tracer studies must receive the additional training. Therefore, the department made no change to the rule as a result of the comment. One commenter felt the wording "annual retraining" may suggest duplication of the training requirements of sec.36.20. The department did not intend to require annual duplication of the training. Therefore, the department agreed and changed the wording to "annual radiation safety review." One commenter felt the requirement for film badges and/or TLD's to be returned for processing within 14 days from the exchange date is too restrictive because individuals that go out of the country cannot meet the deadline. The department agreed and expanded the rule to add a provision for those licensees/registrants which cannot meet the 14 calendar day requirement. One commenter felt the provisions of sec.36.34 should be more restrictive. Department experience shows no indication of problems with damaged or irretrievable radioactive markers. The department made no change to the rule as a result of the comment. One commenter questioned the requirement of carrying copies of leak test reports to temporary job sites. The department feels that there will be no additional burden in carrying a copy of the leak test reports with the other reports required to be available at temporary job sites. The department made no change to the rule as a result of the comment. One commenter suggested allowing a logging tool to be used for monitoring whenever a sealed source or device containing radioactive material is lost downhole. The department agreed and made changes to the rule accordingly. Three commenters objected to the additional 16 hours of training required for individuals performing tracer studies. Based upon department experience, operations using tracer materials have a significant potential for causing contamination. Therefore, the department made no changes to the rule as a result of the comments. In addition, the department has made several editorial changes to the final rules for purposes of clarification. The majority of commenters supported most of the changes, however they raised questions and concerns and offered suggestions regarding changes. Comments were received from Ludlum Measurements, Inc., Mid Continent Nuclear Consultants, Texas Soil and Water Conservation Board, Frank Malek and Associates, Schlumberger Well Services, U. S. Nuclear Regulatory Commission, Associated Wire Line Services, Inc., Atlas Wireline Services, and Halliburton Energy Services Group. Two commenters appeared at the public hearing. The amendment is adopted under the Health and Safety Code, Chapter 401, which provides the Board of Health with the authority to adopt rules and guidelines relating to the control of radiation; and sec.12.001, which authorizes the board to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.289.120. Adoption by Reference. (a) The Texas Department of Health adopts by reference Part 36, "Radiation Safety Requirements for Well Logging Service Operations and Tracer Studies" of the department's document titled Texas Regulations for Control of Radiation, as amended in August 1992. (b) The document adopted by reference in this section is indexed and filed in the Bureau of Radiation Control, Texas Department of Health, The Exchange Building, 8407 Wall Street, Austin, Texas 78754 and is available for public inspection during regular working hours. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 29, 1992. TRD-9208997 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: August 1, 1992 Proposal publication date: March 10, 1992 For further information, please call: (512) 834-6688 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 31. Case Management Services Subchapter B. Case Management for Children Who Are Blind or Visually Impaired 40 TAC sec.31.106 The Texas Department of Human Services (DHS) adopts an amendment to sec.31. 106 concerning case management reimbursement methodology, with changes to the proposed text as published in the May 29, 1992, issue of the Texas Register (17 TexReg 3897). The justification for the amendment is to provide a more accurate reflection of the current structure of this Medicaid program. Since the costs for the program are centrally captured and maintained by the Texas Commission for the Blind (TCB), the amendment is necessary to reflect that one set of financial and statistical information is required for the entire program, rather than separate cost reports for each regional unit of TCB. The amendment is also necessary to reflect that depreciation is not required to be reported to DHS by TCB, since TCB's governmental accounting system does not require depreciation to be calculated and reported in its general ledger. Section 31. 106 also is amended to reference Chapter 24, Reimbursement Methodology, which contains DHS's Medicaid general reimbursement rules. The amendment will function by providing a more accurate reflection in agency rules of the manner in which reimbursement rates are determined for the program. No comments were received regarding adoption of the amendment; however, DHS is adopting the section with a change in subsection (f)(5) to delete unnecessary language concerning maintenance of records. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.31.106. Case Management Reimbursement Methodology. (a) Reimbursement of Texas Commission for the Blind (TCB). As specified in sec.24.101 and sec.24.102 of this title (relating to General Specifications and Methodology), the Texas Department of Human Services (DHS) will reimburse TCB for case management services provided by TCB to Medicaid clients through the Blind and Visually Impaired Children's Program (BVICP). The Texas Board of Human Services will determine a reimbursement rate initially, and thereafter at least annually, for case management services according to sec.24.101 of this title (relating to General Specifications). The determinations will be based on DHS and TCB recommendations and on the reported costs for the provider during the provider's fiscal year. This rate will be designed to reasonably reimburse the costs of an economic and efficient provider. These rates are to be prospective, cost related, and uniform statewide. As specified in sec.24.501 of this title (relating to Adjusting Rates When New Legislation, Regulations, or Economic Factors Affect Costs), the Texas Board of Human Services may also adjust payment rates when new legislation, regulations, or economic factors affect costs. (b)-(c) (No change.) (d) Allowable costs. The following list of allowable costs is not comprehensive. It is meant to serve as a general guide and to clarify certain key expense areas. The absence of a particular cost does not necessarily mean that the expense is not an allowable cost. Costs allowable in building the reimbursement rate for case management services include: (1)-(5) (No change.) (6) Depreciation and amortization expense. If the provider's accounting system does not require depreciation and amortization expenses, the provider is not required to separately determine depreciation and amortization expenses for use in the calculation of the reimbursement rate for case management. If the provider's accounting system does require depreciation and amortization expenses, the provider should use the following guidelines: Property owned by the provider entity, and improvements to owned, leased or rented case management property that are valued at more than $500 at the time of purchase must be depreciated or amortized using the straight line method. The minimum usable lives to be assigned to common classes of depreciable property are: (A)-(B) (No change.) (7)-(11) (No change.) (e) List of unallowable costs. Unallowable costs are not included in the rate base used to determine recommended rates. The following list clarifies certain expense categories of unallowable costs: (1)-(22) (No change.) (23) expenses not reported according to the instructions; (24) (No change.) (f) Cost reporting. The Texas Commission for the Blind will submit financial and statistical information in a format designated by DHS which will capture the expenses of the management unit, including salaries and benefits, administration, building and equipment, utilities, supplies, travel, and indirect overhead expenses related to the case management unit. (1) Accounting requirements. All information submitted must be based on the accrual method of accounting, unless the governmental entity operates on a cash basis. The provider must report the financial and statistical information according to the prescribed statement of allowable and unallowable costs. Reporting should be consistent with generally accepted accounting principles (GAAP). In cases where Medicaid cost reporting rules conflict with GAAP, Internal Revenue Service (IRS), or other authorities, Medicaid cost reporting rules take precedence for purposes of Medicaid auditing and rate setting. (2) Reporting period. The provider must prepare the financial and statistical information to reflect activities during the provider's fiscal year. The financial and statistical information is due after the end of each fiscal year, although an extension may be granted for good cause. DHS may require other information for other time periods. Failure to file an acceptable report or complete required additional information will result in a hold on provider payments until the reported information or additional information is provided. The provider must certify the accuracy of the report or additional information. (3) Review of financial and statistical information. As specified in sec.24.201 of this title (relating to Basic Objectives and Criteria for Desk Reviews of Cost Reports), DHS reviews reported information to ensure that all submitted financial and statistical information conforms to all applicable rules and instructions. Reports not completed according to instructions or rules are returned to the provider for proper completion. (4) On-site audit of financial and statistical information. DHS may perform on-site auditing each year to ensure the fiscal integrity of the case management reimbursement rate. Adjustment consistent with the results of the on-site audit will be made to the rate base in building the prospective rate of payment for the next year. (5) Record-keeping requirement. The provider must maintain records according to the requirements stated in sec.69.202 of this title (relating to Contractor's Records). The provider must ensure that the records are accurate and sufficiently detailed to support the financial and statistical information reported. If the provider does not maintain records which support the financial and statistical information submitted, the provider will be given 90 days to correct this deficiency. A hold on payments to the provider will be made if the deficiency is not corrected within 90 days from the date the provider is notified. (6) Access to records. The provider must allow DHS or its designated agents access to all records DHS or its designated agents deem necessary to verify information. (7) Reviews of disallowances. A provider who disagrees with audit disallowances may request a review by DHS staff of the disallowances, as specified in sec.24.601 of this title (relating to Review and Administrative Hearings). The request must be made in writing. (8) Exclusion or adjustment of costs. The provider must eliminate unallowable costs from the reported financial and statistical information. DHS or TCB excludes from the rate base any unallowable expenses included in the reported financial and statistical information and makes adjustment to reported expenses to ensure that the rate base reflects costs which are consistent with efficiency, economy, and quality of care; are necessary for the provision of case management services; and are consistent with federal and state Medicaid regulations. DHS notifies providers of exclusions and adjustments to reported expenses made during desk reviews and on-site audits of reported financial and statistical information according to sec.24.401 of this title (relating to Notification). If there is doubt as to the accuracy or allowability of a significant part of the information reported, this information may be eliminated from the base rate. 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 June 30, 1992. TRD-9209049 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1992 Proposal publication date: May 29, 1992 For further information, please call: (512) 450-3765 TITLE 43. TRANSPORTATION Texas Department of Transportation Chapter 25. Division of Maintenance and Operations Oversize and/or Overweight Permits 43 TAC sec.25.62 The Texas Department of Transportation adopts an amendment to sec.25.62, concerning permit issuance requirements and procedures, without changes to the proposed text as published in the May 15, 1992, issue of the Texas Register (17 TexReg 3629). This section prescribes the procedure for securing a permit pursuant to Texas Civil Statutes, Article 6701a to operate overweight or oversize vehicles on the state highway system. Statutory limits on the width, length, height, and weight of such vehicles are established in Texas Civil Statutes, Article 6701a authorize the department to issue special permits when those statutory limits are exceeded, but only on condition that the commodities to be transported cannot be reasonably dismantled and that the department determines that operation will be without material damage to the highway. The statute contains other provisions for permit application, fees, form, content, special conditions, and penalties. In administering the statutory permit authority, the department has heretofore limited its determination of whether commodities can be reasonably dismantled to the relative physical ease or difficulty in doing so. Section 25. 62 currently proscribes issuance of an oversize permit to transport more than one commodity in a single load if the additional commodity or commodities either create or make greater an illegal dimension of width, length, or height. The Texas Department of Commerce, the Railroad Commission of Texas, the Office of the Governor, and representatives of private industry have brought to the department's attention the urgent necessity and the appropriateness of giving consideration to economic factors in determining whether a proposed load of commodities can be reasonably dismantled. The department is advised that application of the current rule to oversize loads may in certain instances harm or impede the economic recovery, development, and welfare of Texas, and that consideration should be given to the economic impacts on employment and any affect local economy when determining whether multiple commodities hauled as a single oversize load should be permitted. In consultation with the Texas Department of Commerce and the Office of the Governor, it has been determined that such consideration would be justified when those two agencies respectively certify and approve that issuance of an oversize permit to transport multiple commodities in a single load will have a significant positive impact on the economy of Texas. As recommended by the Texas Department of Commerce, criteria for the certification are: creation of not less than 100 new full time jobs, the preservation of not less than 100 existing full time jobs that would otherwise be eliminated if the permit is not issued, or creates or retains not less than one percent of the employment base in the affected economic sector identified in the certification. These permits may only be issued by the department after receipt of the certification and on approval by written order of the commission. In addition, the multiple commodity loads thus permitted must not exceed legal axle and gross load limits. Moreover, the shipper and the permittee must indemnify and hold harmless the department, its commissioners, officers, and employees from damages or claims resulting from the use of the permit and must provide comprehensive general liability insurance and auto liability coverage in the amounts of $5 million per occurrence or accident. Section 25.62 is thus amended to reflect these provisions by providing a procedure for securing an oversize and/or overweight permit, pursuant to Texas Civil Statutes, Article 6701a, to transport multiple commodities in a single load when the combined load size exceeds the statutory limits on the width, length, and height as established in Texas Civil Statutes, Article, 6701d-11. On May 29, 1992, the department conducted a public hearing to seek comments concerning the adoption of an amendment to sec.25.62(f), which provides for securing an oversize and/or overweight permit to transport multiple commodities in a single load when the combined load size exceeds the statutory limits on the width, length, and height as established in Texas Civil Statutes, Article 6701d- 11. One commenter gave oral testimony at this hearing. The department did not receive any written responses. The commenter indicated that he favored the amendment to sec.25.62(f), except for the provision stating that the amendment will expire on June 1, 1993. He contended that the expiration date should be extended at least through February 1995. The rule was promulgated as an exception to standard permit procedure in order to respond to special needs and conditions of the State's economic recovery and development. If it appears at a future date, that those needs and conditions will continue beyond the expiration date of June 1, 1993, the commission will give due consideration to appropriate extensions on or before that time. The amendment is adopted under Texas Civil Statutes, Articles 6666, and 6701a, which provide the Texas Transportation Commission with the authority to promulgate rules and regulations for the conduct of the work of the Texas Department of Transportation, and specifically to issue permits for the movement of oversize and/or overweight loads over the state highway system. 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 June 29, 1992. TRD-9209022 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: July 20, 1992 Proposal publication date: May 15, 1992 For further information, please call: (512) 463-8630 Chapter 31. Division of Public Transportation General 43 TAC sec.31.3 The Texas Department of Transportation adopts an amendment to sec.31.3, concerning definitions, without changes to the proposed text as published in the May 3, 1992, issue of the Texas Register (17 TexReg 1607). The adoption of this amended section is necessary due to the recent passage of the Intermodal Surface Transportation Efficiency Act of 1991, effective December 18, 1991, which necessitates the promulgation of amendments to rules describing the administration of federal public transportation programs. The definitions of designated recipient and federally funded project are being amended to note the new name of the federal grantor agency and enabling legislation. Similarly, the definition of UMTA (Urban Mass Transportation Administration) is being replaced by one for FTA (Federal Transit Administration). No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6666, 6663b, and 6663c, which provide the Texas Transportation Commission with the authority to establish rule for the conduct of the work of the Texas Department of Transportation, and more specifically to administer the state public transportation fund and state and federal public transportation 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 June 26, 1992. TRD-9209020 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: July 20, 1992 Proposal publication date: March 3, 1992 For further information, please call: (512) 463-8630 Federal Programs 43 TAC sec.sec.31.16, 31.21, 31.26, 31.31, 31.36 The Texas Department of Transportation adopts amendments to sec.sec.31.16, 31. 21, 31.26, 31.31, and 31.36, concerning federal programs. Section 31.36 is adopted with changes to the proposed text as published in the March 3, 1992, issue of the Texas Register (17 TexReg 1608). Sections 31.16, 31.21, 31. 26, and 31.31 are adopted without changes and will not be republished. The adoption of these amended sections is necessary due to the recent passage of the Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991, effective December 18, 1991. Each program description in the rules is being amended to note the new name of the federal enabling legislation. In sec.31.31, references to handicapped are being replaced by disabled to conform to recent federal statutes. To comply with provisions of the ISTEA, sec.31.31 is also being amended to address the eligibility of public bodies for funding under the sec.16(b)(2) grant program. The ISTEA similarly requires the establishment of a funding set-aside for intercity bus transportation in sec.31.36, with 5.0% of the fiscal year 1992 federal apportionment to be reserved for that purpose unless the governor certifies that other resources are adequate. This set-aside increases in succeeding years to a maximum of 15% in fiscal year 1994 and beyond. On March 19, 1992, the department held a public hearing to receive data, comments, views, and/or testimony concerning the proposed amendments. The following groups and associations commented in opposition to proposed changes: City of Del Rio; Rolling Plains Management Corporation; The Transit System, Inc.; Texoma Area Paratransit System, Inc.; San Marcos City Council; San Marcos Public Transportation Advisory Committee; Association for Coordinated Transportation in Texas; Brazos Transit System; three state representatives; and one state senator. The department's responses to the comments are presented in the order in which they appear in the proposed rules. It was suggested that the proposed rules be withdrawn in their entirety due to various objections. One commenter also noted that Federal Transit Administration officials had advised that the rule changes were not necessary. Although the department recognizes that federal statutory changes take precedence even if the state rules are not amended to reflect those changes, TxDOT believes confusion will be minimized if consistency is maintained between the two processes whenever possible. Some parties may not have access to the Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991 and would be misled if they relied exclusively on outdated references in the Texas Administrative Code. Further, most commenters did not object to the majority of the changes proposed and it seems reasonable to proceed with final adoption of that text. Several commenters challenged statements in the proposed preambles that referred to no significant impacts on local economies, overall employment, or small businesses. They also took issue with the anticipated public benefit of consistent application in the administration of public transportation programs. These comments were linked to others specific to sec.31.36(c)(2)-(4) of the proposed amendments, which were not recommended for final adoption. The department implicitly recognizes that these points may have merit, and, the possible impacts, not apparent to the department until those comments were received, will be fully considered in any relevant future rulemaking. It was suggested that the proposed changes to sec.31.31(b) were premature as there is currently disagreement at the federal level as to how the new provisions of the sec.16(b)(2) grant program are to be administered. The commenter recommended that TxDOT wait for clarification from the Federal Transit Administration before adopting the new language. The additions to this subsection are taken verbatim from the amendments contained in the ISTEA of 1991. Until that law is changed, this text is correct. Any clarification necessary in this subsection due to the issuance of federal guidelines will be addressed when such guidelines are issued. Similarly, exception was taken to proposed new subsection (c)(1) of sec.31. 36 as premature in the absence of federal guidelines on the intercity bus program set-aside under sec.18. As noted on the previous response, the text of this paragraph is taken verbatim from the ISTEA of 1991. Again, any changes warranted by the issuance of federal guidelines will be addressed when such guidelines are issued. The following comments all relate to portions of the proposed amendments to sec.31.36 that are not included in the final adoption and which will be addressed by a single response. A number of commenters stated that the department should have obtained industry input before issuing the proposed rules to ensure that the provisions were consistent with the current needs of that industry. A number of commenters strongly disagreed with the proposed new subsection (c)(3) of sec.31.36 which outlined the apportionment of monies for the expansion of services by current sec.18 recipients. Several referred to Rider Number 9 of the TxDOT appropriations for fiscal year 1992-1993, suggesting that gives a clear indication of legislative intent regarding rural transit expansion priorities. The same parties suggested that this matter be deferred until the next regular session of the Texas Legislature when it could be considered by the appropriate elected officials. Various parties objected on the basis that the proposed text in sec.31.36(c) (3) would apply stricter standards to existing "proven" transit systems that were expanding services than to new "unproven" systems that were initiating service as outlined in sec.31.36(c)(2). A number of commenters felt that the 2. 5% or $500,000 set-aside outlined in sec.31.36(c)(3) was not adequate and that no limits should be established. The recommendation was that the department make an annual determination in much the same way as it does currently for new starts under sec.31.36(c)(2). Several also suggested that sec.31.36(c)(3) was, in fact, unnecessary as sufficient flexibility currently exists within the preceding paragraph to accomplish the same end. One commenter stated that the proposed methodology for distributing expansion funds, as described in sec.31.36(c)(3)(A) was cumbersome and would not yield the desired results. Numerous commenters took exception to the 10% limit on expansion funds, contained in sec.31.36(c)(3)(B), advising that it would unduly restrict a system's ability to provide quality service in a new geographic area. It was suggested that the expansion performance standards in sec.31.36(c)(3) (C) were confusing and inappropriate for service expansions where gradual ridership increases are more likely to occur. One commenter recommended an 80% service level requirement in the first expansion year, 90% in the second year, and 100% in the third year. Others objected to the imposition of stricter performance standards in this subparagraph than are applied to new starts in sec.31.36(c)(2). One commenter pointed out that the exceptions to the adjustment process, outlined in sec.31.36(c)(4)(B)(i)-(iii), were not consistent with the methodology described for the formula allocation process in sec.31.36(c)(4)(A) where five factors are considered rather than population alone. The department agrees that the proposed amendments to sec.31.36(c)(2)-(4) should not be adopted. Instead, the current language will be retained and the department will appoint an industry advisory committee for appropriate rulemaking as provided for under the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a, sec.5(f). Further, if all members of the Public Transportation Advisory Committee established under Texas Civil Statutes, Article 6663b, sec.2A, have been appointed prior to the initiation of future rulemaking, that body will also be consulted on this matter. The withdrawal of these proposed revisions results in the following changes to the text of sec.31.36 as originally published in the March 3, 1992, issue of the Texas Register (17 TexReg 1608). The final sentence in sec.31.36(b), which was proposed for deletion, will be retained. The final sentence in sec.31. 36(c)(1) is revised to refer to paragraph (3) rather than (4). This change is due to the deletion of material originally proposed and provides the correct cross- reference. Proposed revisions to the first, third, and fifth sentences of paragraph sec.31.36(c)(2) are withdrawn. The fourth and sixth sentences in this paragraph are revised to refer to paragraph (3) rather than (4). These changes are due to the deletion of material originally proposed and provide the correct cross-reference. The entire paragraph (3) of sec.31.36(c) as originally proposed is withdrawn. The following paragraph has been renumbered from (4) to (3) due to the deletion of material. The proposed changes in sec.31.36(c)(3)(B), which was originally published as sec.31.36(c)(4)(B), are withdrawn. The eighth sentence has been revised to refer to paragraphs (1) and (2), rather than (1)-(3), due to the deletion of material. The proposed changes in sec.31.36(c)(3)(C), which was originally published as sec.31.36(c)(4)(C), are withdrawn. The amendments are adopted under Texas Civil Statutes, Articles 6666, 6663b, and 6663c, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically to administer the state public transportation fund and state and federal public transportation programs. sec.31.36. Section 18 Grant Program. (a) Purpose. The Federal Transit Act, sec.18, as amended (49 United States Code, sec.1614), authorizes the secretary of the United States Department of Transportation to make grants for public transportation projects in nonurbanized areas. The department has been designated by the governor to administer the sec.18 program. (b) Eligible recipients. State agencies, local public bodies, private nonprofit organizations, Indian tribes and groups, and operators of public transportation services are eligible to receive sec.18 funds through the department. Private for-profit operators of public transportation services may participate in the program through contracts with eligible recipients. (c) Formula allocation. As part of its administration of the sec.18 program, the department is charged with ensuring that there is a fair and equitable distribution of program funds within the state (FTA Circular 9040.lB, Chapter 1, sec.4). Effective September 1, 1989, the department will allocate sec.18 funds to local contractors in the following manner. (1) Unless the governor certifies to the secretary of the United States Department of Transportation that the intercity bus service needs of the state are being adequately met, the department will reserve not less than 5.0% of the fiscal year 1992 sec.18 federal apportionment for the development and support of intercity bus transportation. The percentage to be reserved for intercity bus transportation will rise to 10% in fiscal year 1993 and 15% in fiscal year 1994 and beyond unless the governor certifies that such expenditures are not necessary. If it is determined that all or a portion of the set-aside monies are not required for intercity bus service, those funds shall be applied to the formula apportionment process described in paragraph (3) of this subsection. (2) A portion of the annual sec.18 federal apportionment will be reserved for the establishment of nonurbanized public transportation systems in areas currently not served by a sec.18 system. The amount to be reserved will be determined by the department no later than June 1 of each year and shall be based on current planning estimates by the department. The department will establish a maximum amount to be allocated to each project authorized under this paragraph. The balance available under this paragraph will be reviewed by the department at periodic intervals during the fiscal year and amounts released to contractors described in paragraph (3) of this subsection as deemed appropriate. Projects to be funded under this paragraph may be approved by the department at any time during the fiscal year. Once a new system has been in operation for at least six months, it will become subject, for the next full fiscal year, to the funding allocation process described in paragraph (3) of this subsection. (3) The balance of the annual sec.18 federal apportionment will be allocated to existing sec.18 contractors on a formula basis as described in subparagraphs (A)-(C) of this paragraph. Upon the contractor's completion of and compliance with all application requirements, rules, and regulations applicable to the sec.18 program, the department and the contractor will negotiate a contract. All such contracts shall have an effective date of September 1 and shall be for a 12-month period unless otherwise authorized by the department. Formula allocations for the next fiscal year will be announced by the department no later than June 1. The formula contains two demographic factors and three performance factors, with the allocations computed as follows. (A) Unadjusted totals will be calculated for each contractor, taking the sum of the factors described in clauses (i)-(v) of this subparagraph for the contractor and dividing the total by five. The resulting aggregate factor will then be multiplied by the total sec.18 funds determined by the department to be available for projects to be funded under this paragraph. The product of the latter calculation is the unadjusted formula total for each contractor. (i) Nonurbanized population. Using the latest census figures available from the state data center, the nonurbanized population for each contractor's authorized service area will be calculated. Each contractor's subtotal will then be divided by the total for all contractors to determine the nonurbanized population factor for each contractor. (ii) Square mileage. Using the department's database, the square mileage (by county) for each contractor's authorized service area will be calculated. Each contractor's subtotal will then be divided by the total for all contractors to determine the square mileage factor for each contractor. (iii) Vehicle miles per cost. Using the most recent four quarterly reports submitted by each contractor, the contractor's average vehicle miles travelled per administrative and operating cost will be calculated. Each contractor's average will then be divided by the total for all contractors to determine the vehicle miles per cost factor for each contractor. For contractors that have been in operation for less than 12 months but at least six months, extrapolated totals will be calculated using the available reports. (iv) Revenues per expenses (revenue recovery ratio). Using the most recent four quarterly reports submitted by each contractor, the contractor's average revenue collected per administrative and operating cost will be calculated. Each contractor's average will then be divided by the total for all contractors to determine the revenues per expenses factor for each contractor. For contractors that have been in operation for less than 12 months but at least six months, extrapolated totals will be calculated using the available reports. (v) Passenger trips per nonurbanized population. Using the most recent four quarterly reports submitted by each contractor and the population data described in clause (i) of this subparagraph, the contractor's average one-way passenger trips per service area population will be calculated. Each contractor's average will then be divided by the total for all contractors to determine the passenger trips per nonurbanized population factor for each contractor. For systems that have been in operation for less than 12 months but at least six months, extrapolated totals will be calculated using the available reports. (B) Based on the relative size of the federal apportionment and the relative number of sec.18 formula contractors in comparison to the preceding fiscal year, the department will adjust the formula totals derived in subparagraph (A) of this paragraph. The adjustments will be based on a comparison of the preliminary formula totals to the sec.18 grant funds available to each contractor during the preceding 12 months. As contractors enter their second and following years of formula funding, this will be a comparison to the previous year's allocation. The commission will determine an appropriate allocation base and cap and all preliminary formula amounts derived in subparagraph (A) of this paragraph will be adjusted to fall within that range. (For example, if contractor X's unadjusted total represented 87% of the previous year's expenditures and the annual funding base was established at 90%, contractor X's allocation would be increased to 90%. Similarly, if contractor Y's unadjusted total represented 125% of the previous year's expenditures and the annual funding cap was established at 110%, contractor Y's allocation would be reduced to 110%.) If the federal apportionment remains substantially unchanged from fiscal year 1990, the base will be no less than 95% and the cap will be as high as feasible given the available funding. Any reserve funds described in paragraphs (1) and (2) of this subsection that are released for allocation under this paragraph will be awarded on a percentage basis to the existing contractors at the lowest funding levels relative to the base. Similarly, any funds allocated under this paragraph that are not obligated by December 1 of the fiscal year of allocation will be awarded on a percentage basis to the other existing contractors at the lowest funding levels relative to the base. (C) For the purposes of the calculations in subparagraph (B) of this paragraph, the department will assume that 10% of each contractor's formula allocation will be dedicated for capital items. However, each contractor will indicate in its annual application budget the actual amount to be allotted to the capital category. Under no circumstances shall administrative expenses exceed 30% of the total (federal sec.18 dollars plus match) sum of administrative and net operating funding. 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 June 26, 1992. TRD-9209021 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: July 20, 1992 Proposal publication date: March 3, 1992 For further information, please call: (512) 463-8630 Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's note: As required by the Insurance Code, Article 5.96 and Article 5.97, the Register publishes notices of actions taken by the State Board of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure and Texas Register Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the State Board of Insurance, 333 Guadalupe, Austin.) The State Board of Insurance in Docket Number 1871, held on May 21, 1992, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street in Austin, adopted amendments to the Texas Automobile Insurance Plan of Operation. The Office of Public Insurance Counsel proposed amendment to the plan of operation in a petition filed on February 7, 1992. Amendments to the proposal were made at the hearing on April 23, 1992. On May 21, 1992, Docket Number 1871 reconvened and the TAIP requested approval of amendments to the Texas Automobile Insurance Plan of Operation as outlined in "Exhibit A" which was entered at the hearing. The board approved the following amendments for adoption. 2.6. An applicant who has been denied insurance under the plan, or an insured or insurer who is aggrieved by a violation of a plan rule may appeal such action to the Appeals Committee. An appeal may be filed in the form of a letter addressed to the Appeals Committee at the office of the plan. 3.2. The application for insurance under the plan must be submitted to the Plan on a prescribed form in duplicate accompanied by the annual premium or a per vehicle deposit as indicated following. A. Option 1-Full Annual Premium-no deposit. B. Option 2-Advance Premium Payment-where the total annual premium is to be paid within 30 days of the date of the premium notice, a deposit of 25% of the annual premium or a minimum of $40 per vehicle, whichever is greater is required. C. Option 3-Installment Premium Payment -Available only to Private Passenger- Non-Fleet. 1. Deposit. A deposit of 25% of the annual premium or a minimum of $40 per vehicle, whichever is greater, is required. This deposit is to accompany the application on new assignments and be the initial payment on renewal policies (no installment charge shall be made on the deposit premium or initial payment on renewal policies). 2. Installment Payment Plan. One-eighth of the remainder of the premium plus an installment charge of $3.00 on each installment shall be due in eight equal monthly installments calculated the effective date of the policy. The installment charge may be increased by $.50 for each $250 or fraction thereof by which the annual premium exceeds $500. D. The application form shall contain a statement by the applicant certifying that the installment payment option has been offered and explained by the servicing agent. 3.3. Additional premium resulting from changes to the policy may be spread over the remaining installments, if any, or may be billed immediately as a separate transaction any commission amount on the additional premium is payable by the company as provided in Section 5.8. 3.5. The first installment bill shall reflect the current annual premium minus the deposit to arrive at an outstanding balance. One-eighth of the balance shall be identified as the installment. The installment charge shall be displayed and added to the installment to arrive at the minimum amount payable. The due date for the first installment will be 30 days after the inception of the policy and monthly thereafter. An installment bill is to be released to the insured, with a copy to the servicing agent, every 30 days after the first installment until the outstanding balance is eliminated. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative Procedure and Texas Register 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 June 30, 1992. TRD-9209050 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: July 22, 1992 Proposal publication date: March 20, 1992 For further information, please call: (512) 463-6327