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 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 15. Consumer Services Division Texas Weights and Measures 4 TAC sec.15.13 The Texas Department of Agriculture adopts an amendment to sec.15.13, concerning Texas weights and measures, without changes to the proposed text as published in the October 23, 1992, issue of the Texas Register (17 TexReg 7499). The department is amending the section in order to clarify that the inspection requirements of that section are applicable to commodities in standard weight package form. The amendment also updates the tables used for inspection procedures to be in conformity with the National Institute of Standards and Technology. The amendments specifically make sec.15.13 applicable to standard weight packages, update the title of publication used by the department in its sampling procedures; and update the tables used for sampling by the department. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, Chapter 13, which provides the Texas Department of Agriculture with the authority to promulgate rules establishing the standard fill for commodities in package form. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 8, 1992. TRD-9216425 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: December 30, 1992 Proposal publication date: October 23, 1992 For further information, please call: (512) 463-7583 TITLE 22. EXAMINING BOARDS Part XIII. Texas Board of Licensure for Nursing Home Administrators Chapter 247. Continuing Education 22 TAC sec.247.4 The Texas Board of Licensure for Nursing Home Administrators adopts an amendment to sec.247.4, concerning continuing education sponsor fee, with changes to the proposed text as published in the June 16, 1992, issue of the Texas Register (17 TexReg 4327). Historically, the board has not taken an active role in continuing education, but with the board's new leadership and direction, it has assigned the formerly part-time duties to a full-time position. There is no current fee assessed for reviewing and approving the curriculum, processing and promoting educational opportunities and results, monitoring classes and class evaluations, or investigating alternative continuing education possibilities. The new rules require a $10 fee per licensed nursing home administrator seminar attendee, to be assessed to continuing education sponsors outside of the Texas Board of Licensure for Nursing Home Administrators. These fees will be due upon the submission of the seminar list of licensed nursing home administrators attendees turned into the agency by the sponsors for continuing education credit. The following comments were received during the comment period concerning the proposed sections. The agency desires to address and explain the comments that were received: the $10 fee should already be covered by the license fee; the fee will serve no purpose other than to increase the bureaucracy of the TBLNHA; it appears to me that the Board and Agency are merely after a new revenue service rather than improving education; how do you propose to improve the seminars by imposing a $10 fee that will not be available to the sponsoring organization to pay for better programs?; if additional revenue is needed, why not utilize excess funds that have been generated, in lieu of placing an additional and unnecessary burden on the administrators of this state. A report submitted to the Sunset Commission by the Licensure Board indicates that $170,000 was turned back last year; I understand all money collected by agencies of the state is required by law to be deposited in the state general fund, not retained by the agency to spend as it wishes. If this is true, my $10 each time will just go to the state fund; there has been no effort by TBLNHA to identify how the current program is lacking or how a $10 fee would improve course content; what is currently wrong with the quality of the seminars?; since this fee will supposedly apply to all attendees regardless of whether or not they hold an administrator's license, I would like to know how you intend to justify this action to other licensing agencies; if there are problems with particular providers then the Board should deal with their specific situation rather than impose constraints on the provider groups as a whole; the posting in the Texas Register states there will be no affect on small businesses. This does not seem to be the case. Ownership, including both large and small operators, will ultimately pay the fee for most administrators attending sessions. These costs, in turn, will be passed on to the state in medicaid costs or to private paying patients, so the cost impact has been underestimated by TBLNHA; my seminars for this fall 1992 have already been planned and advertised. If the fee is approved will this go into effect in 1993?; the $10 fee per seminar makes no distinction among three-hour credit seminars and those of six hours of some other length; there are apparent errors in the Preamble relating to the estimated cost and estimated increase in revenue. The figures presented are only for four years rather than the required five. The proposed rule does not clearly establish a length of time for comments as is usual with Texas Register procedure; as a general state policy most other professional licensing agencies set continuing educational requirements and approve courses. We feel that this proposal is out of step with standard practice, would stifle innovation, and limit diversity among types of educational offering; the Preamble states that the cost to sponsoring organizations will range from $2,341 to $2,633 per year. Since the Preamble assumes that the fee will not be passed on, this figure is also inaccurate. TAHA alone anticipates at least 1,200 attendees this year at continuing education seminars we sponsor that are approved for credit, or $12, 000 for just one of 19 sponsoring organizations. Commenters opposing adoption of the amendment were: Texas Health Care Association; 91 Individuals; and Texas Association of Homes for the Aging. The Licensure Board for Nursing Home Administrators intends to conduct a thorough assessment of the continuing education program to determine its effectiveness and validity and to identify problems or shortfalls within the seminars offered through sponsors. The $10 continuing education fee is but one aspect of this process. A 1991 survey of licensed nursing home administrators mandated that the board take an active role in continuing education. The continuing education fee will enable the board to meet this mandate by assigning a full-time education specialist to review and approve curriculum, process and promote educational opportunities and results, monitor classes and prepare evaluations, and to investigate alternative continuing education possibilities. The board does not feel that the rule is out of step with the standard practices of other licensing boards. The board feels that the rule would not stifle innovation or limit diversity among the types of educational offerings, but would foster innovation and encourage diversity by allowing for the development of alternative approaches to continuing education. The fee would not be required for seminars approved before the rule becomes effective. Only seminars submitted for approval after the rule is passed will be required to comply. The wording of the rule has been changed to include only those seminar participants who are licensed nursing home administrators. The original $250 licensure fee covers the processing of the application and an applicant's initial testing. Renewal fees are set by the legislature and go directly into special revenue fund number 137. These funds are not appropriated to TBLNHA. The $177,301 that was previously turned back to the general revenue fund was accumulated over a number of years. It's return was mandated by Senate Bill 222 and was out of the agency's control. We do not expect an accumulation of funds in the future. The agency stands by its assessment on the cost to sponsoring organizations. These figures were determined from statistics compiled by the agency for fiscal year 1991. The report titled "Annual Sum Participation in Sponsored Conferences" showed the total number of licensed nursing home administrators attending seminars for the 23 sponsors. To arrive at the cost to sponsoring organizations, the agency took the current number of active licensed administrators and increased the total by eight percent per year. This number was multiplied by the average number of classes taken by an administrator per year and the sum was multiplied by $10. The total of that equation was divided by the number of approved sponsors (23). We feel that this is an adequate formula for determining the average cost for each sponsor. When this rule was published an error was made by the Texas Register. A letter was sent to the Texas Register explaining their error and requesting a correction. Because the agency expected the rule to become effective in 1992, the proposed preamble included this year as the first of the five years of anticipated economic cost to persons who are required to comply with the rule. Although it was expected that the rule would be effective, the agency would exempt organizations from complying for previously approved seminars. A comment period was not specified because the Texas Register does not require that a length of time for comments be specified in a proposed rule. Comment periods of varying lengths can be stipulated if the agency desires to extend the comment period beyond 30 days. If none is specified the comment period defaults to 30 days from the date of publication. The amendment is adopted under Texas Civil Statutes, Article 4442d, sec.8, which provide TBLNHA with the authority to make rules and regulations not inconsistent with law as may be necessary or proper for the performance of its duties, and to take such other actions as may be necessary to enable the State to meet the requirements set forth in the Social Security Act, sec.1908 (42 United States Code Annotated sec.1396g), the Federal rules and regulations promulgated thereunder, and other pertinent Federal authority; provided, however, that no rule shall be promulgated, altered, or abolished without the approval of a two-thirds majority of the Board. sec.247.4. Continuing Education. (a) (No change.) (b) Any course, seminar, or workshop designed to meet the requirements and qualifications for renewal of a nursing home administrator's license shall be registered and approved in accordance with sec.247.1 of this title (relating to Registration of Educational Programs) and include subject areas designated in sec.247.3 of this title (relating to College Courses/Programs of Study). Upon submission of attendance information, approved continuing education sponsors must submit a $10 fee for each licensed nursing home administrator receiving credit for the seminar. Continuing education credit will not be given until such fees are received. (c)-(e) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 8, 1992. TRD-9216497 Janet Monteros Assistant Attorney General State of Texas Office of the Attorney General Effective date: December 31, 1992 Proposal publication date: June 16, 1992 For further information, please call: (512) 458-1955 Chapter 255. Public Comment 22 TAC sec.255.1, sec.255.2 The Texas Board of Licensure for Nursing Home Administrators (TBLNHA) adopts new sec.255.1 and sec.255.2, concerning public comment, without changes to the proposed text as published in the August 7, 1992, issue of the Texas Register (17 TexReg 5505). The proposed rules are created to promote open communication between the Board and its public. They will facilitate a fair and equal opportunity for all citizens to present information and opinions to the Board in an orderly fashion. The new chapter sets policies and procedures for the Board to receive public comments at hearings and at board or committee meetings. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Civil Statutes, Article 4442d, sec.8, which provide TBLNHA with the authority to make rules and regulations not inconsistent with law as may be necessary or proper for the performance of its duties, and to take such other actions as may be necessary to enable the State to meet the requirements set forth in the Social Security Act, sec.1908 (42 United States Code Annotated, sec.1396g), the Federal rules and regulations promulgated thereunder, and other pertinent Federal authority; provided, however, that no rule shall be promulgated, altered, or abolished without the approval of a two-thirds majority of the Board. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 8, 1992. TRD-9216496 Janet Monteros Assistant Attorney General State of Texas Office of the Attorney General Effective date: December 31, 1992 Proposal publication date: August 7, 1992 For further information, please call: (512) 458-1955 Part XXIII. Texas Real Estate Commission Chapter 535. Provisions of the Real Estate License Act Termination of Salesman's Association with Sponsoring Broker 22 TAC sec.535.121 The Texas Real Estate Commission adopts an amendment to sec.535.121, concerning notifications required when a broker's sponsorship of a salesman comes to an end, without changes to the proposed text as published in the October 23, 1992, issue of the Texas Register (17 TexReg 7513). The amendment requires a broker to notify a salesman immediately in writing if the broker terminates the sponsorship and requires a salesman to notify the broker immediately in writing if the salesman leaves the sponsorship. The amendment is necessary to avoid confusion between brokers and salesmen they sponsor as to the authority of the salesmen to act for the brokers. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which authorize the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 11, 1992. TRD-9216580 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: February 1, 1993 Proposal publication date: October 23, 1992 For further information, please call: (512) 465-3960 Licensed Real Estate Inspectors 22 TAC sec.535.221 The Texas Real Estate Commission adopts new sec.535.221, concerning advertisements, with changes to the proposed text as published in the October 23, 1992, issue of the Texas Register (17 TexReg 7513). The new section establishes guidelines for advertisements used by real estate inspectors and their sponsored inspectors-in-training or apprentices. The new section is necessary to ensure that consumers know who is responsible for advertisements placed by inspectors and to prevent misleading advertising. The Texas Real Estate Inspector Committee recommended that the definition of the term "advertisements" be amended to include purchased telephone directory displays. The commission concurred and made the suggested change. The new section is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which provide the Texas Real Estate Commission with the authority to make and enforce all rules and regulations necessary for the performance of its duties. sec.535.221. Advertisements. (a) For the purposes of this section advertisements include, but are not limited to, inspection reports, business cards, invoices, signs, purchased telephone directory displays, and advertising by newspaper, radio, and television. (b) Advertisements by a person licensed as a real estate inspector or inspector-in-training or registered as an apprentice inspector shall contain the name or assumed business name of the licensee or registrant. If the person is licensed as an inspector or inspector-in-training, the advertisements shall also contain the license number of the person. If the person is licensed as an inspector-in-training or registered as an apprentice inspector, the advertisements shall also contain the following: (1) the name of the person's sponsoring inspector; and (2) a statement indicating that the person is sponsored by that inspector. (c) A licensed inspector, inspector-in-training, or registered apprentice inspector shall immediately notify the commission in writing of the licensee or registrant's use of an assumed name in the inspection business. (d) The commission may reprimand or suspend or revoke the license or registration of a person who is found to have engaged in false or misleading advertising or to have failed to comply with provisions of this section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 11, 1992. TRD-9216581 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: February 1, 1993 Proposal publication date: October 23, 1992 For further information, please call: (512) 465-3960 22 TAC sec.535.226 The Texas Real Estate Commission adopts an amendment to sec.535.226, concerning sponsorship of apprentice real estate inspectors and real estate inspectors-in-training, without changes to the proposed text as published in the October 23, 1992, issue of the Texas Register (17 TexReg 7513). The amendment provides minimum guidelines for the supervision of apprentices and inspectors-in-training with regard to performance of inspections and review of inspection reports. The amendment is necessary to establish a means of determining whether inspectors provide adequate supervision of the apprentices and inspectors-in-training they supervise. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which authorize the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 11, 1992. TRD-9216582 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: February 1, 1993 Proposal publication date: October 23, 1992 For further information, please call: (512) 465-3960 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 3. Income Assistance Services Subchapter G. Resources The Texas Department of Human Services (DHS) adopts amendments to sec.3.704 and sec.3.902, without changes to the proposed text as published in the November 10, 1992, issue of the Texas Register (17 TexReg 7857). The justification for the amendments is to exclude income and resources that are exempt by federal law (the Seneca Nation Settlement Act of 1990, Public Law 101-503) for Native Americans who receive AFDC and/or Food Stamps. The amendments will function by ensuring that Native Americans of the Seneca Nation in Texas will receive the income and resource exclusions mandated by federal law to be effective January 1, 1993. No comments were received regarding adoption of the amendments. 40 TAC sec.3.704 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 31, which provides the department with the authority to administer public assistance and financial assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 11, 1992. TRD-9216544 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: January 1, 1993 Proposal publication date: November 10, 1992 For further information, please call: (512) 450-3765 Subchapter I. Income 40 TAC sec.3.902 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 31, which provides the department with the authority to administer public assistance and financial assistance programs. sec.3.902. Types. (a) Aid to Families with dependent children. The Texas Department of Human Services (DHS) counts the following as income: (1)-(28) (No change.) (b) Aid to families with dependent children. Exclusions from income for AFDC are: (1)-(9) (No change.) (10) native and Indian claims. DHS exempts payments made under the Alaska Native Claims Settlement Act (Public Law 92-203, as amended by Public Law 100- 241), Seneca Nation Settlement Act of 1990 (Public Law 101-503), and funds distributed or held in trust by the Indian Claims Commission for members of Indian tribes under Public Laws 92-254; 94-540; 94-114, sec.6; 95-433; 96-420; 98-64, sec.2; and 93-134, sec.7 (as amended by Public Law 97.458, sec.4). (11)-(18) (No change.) (c)-(d) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 11, 1992. TRD-9216545 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: January 1, 1993 Proposal publication date: November 10, 1992 For further information, please call: (512) 450-3765 Chapter 19. Long-Term Care Nursing Facility Requirements for Licensure and Medicaid Certification Subchapter U. State and Local Requirements 40 TAC sec.19. 2003, sec.19.2004 The Texas Department of Human Services (DHS) adopts amendments to sec.19. 2003 and sec.19.2004. The amendment to sec.19.2003 is adopted with changes to the proposed text as published in the October 23, 1992, issue of the Texas Register (17 TexReg 7523). The amendment to sec.19.2004 is adopted without changes to the proposed text, and will not be republished. The justification for the amendments is to comply with Rider 22 of the 1992- 1993 Appropriations Act concerning the moratorium on increasing the number of Medicaid-contracted beds in Texas. The moratorium is applicable, with exceptions, to counties in which 90% of available nursing facility Medicaid beds are occupied. The moratorium is intended to enable DHS to control the total number of Medicaid-contracted beds while still protecting the availability of Medicaid services to clients. The amendments will function by ensuring a more proportional distribution of available Medicaid-contracted beds across the state. No comments were received regarding adoption of the amendments. However, DHS is adopting sec.19.2003(c)(5)(D) and (6)(C) with editorial changes referencing the remedies rules, and with a clarification of the intent in (c) (8)(B), approved by the DHS Board, concerning requirements for a Medicaid contract under the commissioner's waiver. The amendments are 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.19.2003. Participation Requirements. (a) (No change.) (b) Except as specified in subsection (c) of this section and in sec.19. 2004 of this title (relating to Selection and Contracting Procedures for Adding Beds in High-Occupancy Areas), the Texas Department of Human Services (DHS) does not accept applications for participation in the Texas Medicaid Nursing Home Program or for a contract for nursing facility beds with any nursing facility that was not granted a valid certificate of need (CON) by the Texas Health Facilities Commission before September 1, 1985; a waiver by DHS prior to January 1, 1993; or other valid order that had the effect of authorizing the operation of the facility at the bed capacity for which participation is sought. (c) If the provider meets all criteria, DHS may exempt the following facilities from the policy stated in subsection (b) of this section. (1) (No change.) (2) Facilities that the Texas Department of Health (TDH) has decertified. DHS limits contracting to no more than the number of certified Medicaid beds on the effective date of decertification. The facility must meet all certification and contract requirements within 12 months of the effective date of decertification. (3) Facilities whose Medicaid contracts are terminated because of the imposition of any remedies as specified in sec.19.2012 of this title (relating to Remedies for Violations of Title XIX Nursing Facility Provider Agreements). DHS limits contracting to no more than the number of certified Medicaid beds on the effective date of the contract cancellation. The facility must meet all certification and contract requirements within 12 months of the effective date of its contract cancellation. (4) (No change.) (5) Facilities that add no more than 10 beds or 10% of the existing number of certified Medicaid beds, whichever is less, within a 24-month period. In computing the 24-month periods, the first 24-month period begins September 1, 1985, and expires August 31, 1987. DHS will accept an application from a facility if the facility: (A) (No change.) (B) has an occupancy rate of at least 90% during each of the previous six months ending the last day of the month immediately preceding the month of application (the facility must submit written documentation acceptable to DHS substantiating the occupancy rate); (C) is located in a county where the occupancy rate is at least 85% during each of the previous six months ending the last day of the month immediately preceding the month of application; and (D) has not had remedies imposed as specified in this chapter which have resulted in contract cancellation in the 12-month period immediately preceding the month of application. (6) Facilities whose capacity is less than 60 licensed beds. For reasons of efficiency, DHS will accept an application to contract up to 60 beds from a small facility of less than 60 licensed beds if the facility: (A) is located in a county where the occupancy rate for contracted Medicaid beds is at least 85% during each of the previous six months immediately preceding the month of application (the facility must submit written documentation acceptable to DHS substantiating the occupancy rate); (B) has a Medicaid contract to provide nursing facility services; and (C) has not had remedies imposed as specified in this chapter which have resulted in contract cancellation in the 12-month period immediately preceding the month of application. (7) Facilities contracted to operate as teaching nursing facilities. DHS will honor all teaching nursing facility approvals issued prior to January 1, 1993. If the facility has not completed construction requirements, and if the facility is not licensed and certified by TDH within 18 months of January 1, 1993, DHS will rescind its approval for the facility to operate as a teaching nursing facility. Facilities contracted under this paragraph must have met the following criteria. (A) The facility must have provided DHS with acceptable written documentation that is entered into an affiliation agreement of at least five years' duration with a school offering an accredited family practice residency program and/or an accredited nursing program for registered or vocational nurses or both. The school must offer classroom training on its own campus or on the campus of an accredited college or university of which it is a part, and the curriculum must include a geriatric component. At the end of the five-year period, the facility may continue or discontinue the affiliation agreement at its own discretion. (B) During the first year of the initial Medicaid contract for beds under this paragraph, DHS has not accepted or does not accept a change in the facility's ownership unless the new owner operates the facility under the same terms and conditions that existed at the time the contract under this paragraph was awarded. After the first year, DHS does accept an ownership change as long as the change does not affect continuance of the affiliation agreement between the facility and a school for the remainder of the five years specified in subparagraph (A) of this paragraph. (8) Facilities that apply for participation under the special DHS commissioner's waiver authority. (A) The commissioner of DHS has authority to waive the restriction on contracting in subsection (b) of this section and direct DHS to enter into Medicaid contracts with nursing facilities that satisfy the requirements specified in this subparagraph. In a manner acceptable to DHS, each of these facilities must: (i)-(v) (No change.) (B) DHS applies the following criteria when granting special DHS commissioner's waivers. (i) If facilities have not completed construction requirements, and if facilities have not been licensed and certified by TDH within 18 months of the date on the DHS letter approving the waiver, the DHS commissioner will rescind the approvals for all such waivers granted on or after January 1, 1993. If a facility has a DHS commissioner's waiver, has not completed construction requirements, and has not been licensed and certified by TDH prior to January 1, 1993, the DHS commissioner will rescind the approval for the waiver 18 months after January 1, 1993. (ii) DHS may grant one 90-day extension for extenuating circumstances, at the discretion of the DHS commissioner. (d) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1992. TRD-9216463 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: January 1, 1993 Proposal publication date: October 23, 1992 For further information, please call: (512) 450-3765 Chapter 48. Community Care for the Aged and Disabled Transition to Life in the Community Program 40 TAC sec.sec.48.2001-48.2005 The Texas Department of Human Services (DHS) adopts new sec.sec.48.2001-48. 2005 concerning transition to life in the community program. New sec.sec.48. 2001-48.2004 is adopted with changes to the proposed text as published in the October 6, 1992, issue of the Texas Register (17 TexReg 7201). New sec.48.2005 is adopted without changes to the proposed text and will not be republished. The justification for the new sections is to assist individuals to live in a community setting by providing them with money to pay for rent, utilities, and start-up costs incurred when moving out of institutions. Individuals may also apply for and receive adaptive devices or home modifications that will assist them to reside in a community setting. The new sections will function by providing a significant cost savings to the state for each individual placed in the community since institutional costs are much higher than the benefits provided in the Transition to Life in the Community (TLC) Program. No comments were received regarding adoption of the sections. DHS, however, has initiated several changes to the text. In sec.48.2001, for the community setting definition, DHS has reordered the wording to clarify the meaning. Also in sec.48.2001, for the nursing facility waiver definition, DHS has added wording to define more precisely the specific waiver program. In sec.48.2002, DHS has reordered the subsections to clarify the meaning. Also, sec.48.2002(a) (1)(c)(i) has been revised to clarify that the individual is choosing to live in the community. In sec.48.2003(a), DHS has clarified that a person who receives Community Living and Support Services (CLASS) or Nursing Facility (NF) Waiver program services is not required to complete a separate application for TLC benefits. In sec.48.2003(b) and (c), DHS has added wording to define the date of application for a person who receives CLASS or NF Waiver program services. In sec.48.2004(a), DHS has deleted redundant wording. In sec.48.2004(f) (1)(A)(i), DHS has added wording to clarify what direct moving expenses are. In sec.48.224(g), DHS has substituted "household members" for "spouse" for situations in which the applicant lives with a person or persons other than a spouse. The new sections are adopted under the Human Resources Code, Title 2, Chapters 22, 32, and 35, which provides the department with the authority to administer public assistance, medical assistance and support services for persons with disabilities programs. sec.48.2001. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the content clearly indicates otherwise. Adaptive aids-Devices, controls, or appliances which enable persons to increase their abilities to perform activities of daily living or control the environment in which they live. Adaptive aids consist of the following services, including repair and maintenance not covered by the warranty: (A) patient lifts: (i) van lifts/adaptations; (ii) wheelchair lifts; (iii) porch or stair lifts; (iv) hydraulic, manual, or other electronic lifts; (B) mobility aids: (i) positioning devices; (ii) braces, crutches, orthopedic shoes; (iii) orthotic devices; (iv) standing boards/frames/wheelchairs/batteries and chargers; (C) control switches/pneumatic switches and devices: (i) sip and puff controls; (ii) adaptive switches/devices; (D) environmental control units: (i) locks; (ii) electronic devices; (iii) safety restraints; (iv) voice-activated, light-activated, and motion-activated devices; (E) medically necessary supplies: (i) tracheostomy care; (ii) decubitus care; (iii) ostomy care; (iv) respirator/ventilator care; (v) catheterization; (vi) diapers and linens; (vii) nutritional supplements; (viii) enteral feeding formulas and supplies; (ix) prescribed medications beyond the three-per-month limit under the Texas Medicaid program; (F) communication aids (including repair, maintenance, and batteries): (i) communicators: (I) direct selection communicators; (II) alphanumeric communicators; (III) scanning communicators; (IV) encoding communicators; (V) emergency response systems; (ii) speech amplifiers, aids, and assistive devices; (iii) interpreters; (iv) medically necessary durable medical equipment not covered within the amount, duration, and scope of the Texas Medicaid State Plan; (v) customized seating systems; (vi) assistive devices, such as, reachers; stabilizing devices; weighted equipment; holders; shared, bent, built-up utensils; long-handled equipment; addition of friction covering; and coated feeding equipment; (vii) safety restraints and safety devices, such as, bed rails, safety padding, helmets, and safety restraints. Case Manager-An employee of the Texas Department of Human Services (DHS) or of an agency which has contracted with DHS to provide case management services for the Community Living and Support Services program. The case manager determines eligibility and benefit levels in the Transition to Life in the Community (TLC) program, subject to final approval by DHS. CLASS-The Community Living and Support Services program, a Medicaid waiver program for certain individuals who qualify for an Intermediate Care Facility for the Mentally Retarded (ICF-MR) VIII level of care. The statutory basis for the program is the Social Security Act, sec.1915(c). Community setting -For persons seeking to obtain services through the CLASS or Nursing Facility Waiver programs, a community setting is any living arrangement which will allow the individual to receive waiver services from the particular waiver program the individual is otherwise eligible to receive. For all other persons, a community setting is any long-term living arrangement other than a nursing home, state hospital, medical or psychiatric hospital, rehabilitation facility, school for the blind, school for the deaf, Texas Youth Commission facility, Texas Department of Criminal Justice facility, or ICF-MR facility. DHS-The Texas Department of Human Services. Home modifications -Those services which assess the need for, arrange for, and provide modifications and/or improvements to a participant's living quarters to allow for community living and ensure safety, security, and accessibility. Home modification services consist of the following: (A) purchase or repair of wheelchair ramps; (B) modifications/additions to bathroom facilities: (i) roll-in showers; (ii) sink modifications; (iii) bathtub modifications; (iv) toilet modifications; (v) water faucet controls; (vi) floor urinal and bidet adaptations; (vii) plumbing modifications; (viii) turnaround space modifications; (C) modifications/additions to kitchen facilities: (i) sink modifications; (ii) sink cut-outs; (iii) turnaround space adaptations; (iv) water faucet controls; (v) plumbing modifications/additions; (vi) worktable/worksurface adjustments/additions; (vii) cabinet adjustments/additions; (D) specialized accessibility/safety adaptations/additions (including repair and maintenance): (i) door widening; (ii) electrical wiring; (iii) grab bars and handrails; (iv) automatic door openers/doorbells; (v) fire safety adaptations; (vi) medically necessary air filtering devices; (vii) medically necessary heating/cooling adaptations. Institutional setting -A long-term care nursing facility licensed by the Texas Department of Health or an ICF-MR Level VIII facility licensed by the Texas Department of Health. For persons seeking to obtain services from the CLASS or Nursing Facility Waiver programs, an "institutional setting" is any setting which is not an allowable living arrangement for that program. Nursing Facility Waiver-A Medicaid waiver program, based on the Social Security Act, sec.1915(c), which provides a comprehensive array of community- based services for adults over age 21 who qualify for a nursing facility level of care and who meet all other eligibility criteria for this waiver. TLC-The Transition to Life in the Community program. sec.48.2002. Client Eligibility Criteria. To be eligible to receive benefits from the Transition to Life in the Community (TLC) program, the individual must meet the criteria specified in paragraphs (1) and (2) of this section. (1) The individual must meet one of the criteria listed in subparagraphs (A)- (C) of this paragraph: (A) be accepted for services under the Nursing Facility (NF) Waiver program and require the benefits of TLC services in order to move to a setting which is acceptable to the NF Waiver program; (B) be accepted for services under the Community Living Assistance and Support Services (CLASS) program and require the benefits of the TLC program in order to move to a setting which is acceptable to the CLASS program; or (C) be a Texas Medicaid recipient who: (i) resides in a licensed nursing home which receives Medicaid payments for the recipient but who chooses to live in a community setting; and (ii) has not been determined to be inappropriate for nursing home care as a result of Preadmission Screening and Annual Resident Review (PASARR) requirements, unless the individual is ineligible to receive services through a waiver allowed under the Social Security Act, sec.1915(c)(7) (B). (2) The individual must meet all of the criteria specified in subparagraphs (A)-(D) of this paragraph: (A) not have received prior benefits through the TLC program; (B) have a plan of care for living in a community setting which demonstrates a reasonable expectation that daily living needs can be met appropriately in a community setting on an ongoing basis. Acceptance into the CLASS program or into the NF Waiver Program satisfies this requirement; (C) demonstrate a financial ability to maintain ongoing household expenses after the temporary TLC assistance has been exhausted; and (D) move to a community setting within four months of the date eligibility for TLC is determined; otherwise, the application will be denied. To be reconsidered for eligibility, the individual must reapply and be placed at the end of the waiting list. sec.48.2003. Application. (a) An applicant or the designated responsible party must complete and sign an application to begin the eligibility determination process for the Transition to Life in the Community (TLC) program. An individual who has been accepted for services in the Community Living Assistance and Support Services (CLASS) or Nursing Facility (NF) Waiver program is not required to complete a separate application for TLC. (b) Applications are processed on a first-come, first-served basis according to the date the signed and dated application is received by the case manager. For individuals accepted into the CLASS or NF Waiver programs, applications for TLC are processed in the order in which the Department of Human Services (DHS) is notified that the plan of care for CLASS or NF Waiver program has been completed and that the individual is applying for TLC. (c) If funds are not available, an applicant is placed on the waiting list according to the date the case manager receives the application. For individuals accepted into the CLASS or NF waiver programs, applications for TLC are removed from a waiting list in the order in which DHS is notified that the individual's plan or care for waiver services has been completed and that the individual is applying for TLC. sec.48.2004. Program Benefits. (a) Transition to Life in the Community (TLC) program benefits are contingent upon the availability of program funds. If funds are not available, the applicant is placed on a waiting list. (b) The Texas Department of Human Services (DHS) separates the allocation of program benefits to applicants entering the Community Living and Support Services program and all other applicants. DHS reserves the right to adjust the allocations to meet the demand for service. (c) Approval of benefits must be obtained from DHS before any funds are distributed. (d) An individual may receive program benefits only once. (e) The TLC program will not provide benefits which the individual is eligible and able to receive through any other programs. (f) An eligible individual may receive two possible grants, as specified in paragraphs (1) and (2) of this subsection. (1) Start-up grant. (A) An eligible individual may receive a one-time grant of up to $1,800 to pay for the following expenses related to moving and household start-up costs, if the expenses are approved by the case manager: (i) expenses directly related to moving from an institutional setting to a community setting, such as the cost of paying others to move the household belongs, the cost of moving cartons, and the cost of transporting the individual to the community setting; (ii) rent deposits for the community setting, limited to first and last month's rent plus reasonable damage and security deposits; (iii) utility deposits for the community setting, including deposits required by electricity, gas, water, wastewater, telephone, and sanitation companies; (iv) the first month's rent or mortgage payment at the community setting; (v) the first month's utilities at the community setting; (vi) cooking utensils, dishes, cleaning supplies, furniture, appliances, towels, sheets, blankets, and other items needed to set up a household in the community setting; and (vii) other moving-related expenses and household start-up costs as approved by the case manager. (B) An individual who is likely to receive Supplemental Security Income (SSI) benefits in the community setting may receive payment for mortgage payments, rent, utilities, and other household costs if the case manager verifies additional time is necessary to establish SSI eligibility in the community setting. These payments may be for up to six months or until the first SSI payment is received, whichever comes first, and are subject to the $1,800 limit. (2) Modification/adaptive aid grant. Except for individuals entering the CLASS program or the Nursing Facility Waiver program, an eligible individual may also receive a one-time grant of up to $2,200 for the purchase of home modifications or adaptive aids which will enable the individual to reside in a community setting. Adaptive aids and home modifications must be approved by the case manager and DHS. They must be included in the list of items for the definitions of adaptive aids and home modifications described in sec.48.2001 of this title (relating to Definitions). (g) In the case of household members, the following paragraphs apply. (1) If all individuals meet the eligibility criteria, each individual may receive both grants up to the maximum as long as no duplication of expenses occurs. (2) If only one household member meets the eligibility criteria, only the eligible household member may receive either grant. The ineligible household member's moving- related expenses and household start-up costs may be included in the eligible household member's grant, subject to the overall $1,800 limitation, provided that the ineligible household member is moving to the same community setting as the eligible household member. (h) Payments may be made directly to the eligible individual or to the vendor of service. The payee must obtain a vendor identification number from the Texas State Comptroller of Public Accounts before payment can be made. sec.48.2005. Client Rights. (a) The applicant or the designated responsible party will receive written notification of the eligibility decision for the Transition to Life in the Community program from the case manager. If the application is granted, the written notice states the amount of the grant the individual will receive. (b) The applicant or the designated responsible party may request a conference with the Texas Department of Human Services or Community Living and Support Services (CLASS) program managers to discuss denial of benefits or to discuss the amount of benefits. The applicant or designated responsible party may request a fair hearing to appeal a denial of eligibility or the level of benefits if the request is made within three months of the date of the eligibility decision. (c) The eligible individual or the designated responsible party is entitled to participate fully in the determination of the specific services, adaptive aids, housing modifications, or other benefits are needed to enable a successful transition to a community setting. (d) The eligible individual or the designated responsible party has the right to choose the community setting to which the individual will move, provided it meets the definition of a community setting in sec.48.2001 of this title (relating to Definitions). For individuals entering the CLASS or Nursing Facility Waiver programs, this setting must be acceptable to the 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 December 10, 1992. TRD-9216462 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: January 15, 1993 Proposal publication date: October 6, 1992 For further information, please call: (512) 450-3765 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 23. Division of Travel and Information 43 TAC sec.23.1 The Texas Department of Transportation adopts the repeal of sec.23.1, concerning division of travel and information, without changes to the proposed text as published in the October 9, 1992, issue of the Texas Register (17 TexReg 7051). Repeal of this section is necessary because existing sec.25.8, entitled Maintenance of Designated Highways in Incorporated Cities, Towns, or Villages more adequately describes current department policies and procedures concerning the subject matter. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Articles 6666 and 6673b, 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 to enter into contracts with municipalities for maintenance of state highways. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1992. TRD-9216501 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: December 31, 1992 Proposal publication date: October 9, 1992 For further information, please call: (512) 463-8630 43 TAC sec.23.2 The Texas Department of Transportation adopts the repeal of sec.23.2, without changes to the proposed text as published in the October 9, 1992, issue of the Texas Register (17 TexReg 7051). Repeal of this section is necessary because the subject matter of the section falls within the functional responsibilities of the department's Division of Maintenance and Operations, and therefore, belongs in Chapter 25, Division of Maintenance and Operations. The subject matter will be reenacted in new sec.25.9 which is being contemporaneously proposed for adoption in an amended form to clarify and update the provisions of the rule, and to include provisions for historical routes. No comments were received regarding adoption of the repeal. The repeal is proposed under Texas Civil Statutes, Articles 6666 and 6673e-4, 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 provide for the designation of memorial highways and historical routes by local governments and the Texas Transportation Commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1992. TRD-9216502 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: December 31, 1992 Proposal publication date: October 9, 1992 For further information, please call: (512) 463-8630 Chapter 25. Division of Maintenance and Operations General 43 TAC sec.25.9 The Texas Department of Transportation adopts new sec.25.9, concerning division of maintenance and operations, without changes to the proposed text as published in the October 9, 1992, issue of the Texas Register (17 TexReg 7055). Texas Civil Statutes, Article 6673e-4, provide for the designation of memorial highways and historical routes by local governments and the Texas Transportation Commission. New sec.25.9 replaces existing sec.23.2, concerning the naming of memorial highways, structures, and rest areas, which is contemporaneously being repealed. Existing sec.23.2 prescribes the policies and procedures governing the designation and maintenance of memorial highways. New sec.25.9 reenacts the subject matter of sec.23.2 in an amended form to clarify and update the provisions of the rule, and to include provisions for historical routes. The subject matter of existing sec.23.2 is also being transferred to Chapter 25 since it is a function of the department's division of maintenance and operations. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Articles 6666 and 6673e- 4, 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 provide for the designation of memorial highways and historical routes by local governments and Texas Transportation Commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1992. TRD-9216503 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: December 31, 1992 Proposal publication date: October 9, 1992 For further information, please call: (512) 463-8630 43 TAC sec.25.10 The Texas Department of Transportation adopts new sec.25.10, concerning division of maintenance and operations, without changes to the proposed text as published in the October 9, 1992, issue of the Texas Register (17 TexReg 7056). Senate Bill 1267, 72nd Legislature, 1991, added Texas Civil Statutes, Article 6674v-7, which: prohibits persons from erecting, placing, or maintaining a sign on the right-of-way of a highway designated as part of the state highway system unless authorized by state law; authorizes the department to remove and dispose of unauthorized signs; and authorizes the department to adopt rules for the enforcement of the article. New sec.25.10, Signs on State Highway Right-of-Way, provides as follows: subsection (a), Purpose, states the purpose of the section; subsection (b), Definitions, defines words and terms used in the section; subsection (c), Removal, authorizes the department to remove an unauthorized sign without prior notice, except that the department will provide 14-day notice to the owner of a permanent sign prior to removal, if the name and address of the owner is reasonably ascertainable, and will provide 31-day notice to the owner of a regulated encroaching sign prior to remedying the encroachment; subsection (d), Disposal, authorizes the department to dispose of a removed sign unless claimed by the owner, and requires the department, prior to disposal, to provide written notice to the owner of a removed sign if the name and address of the owner is reasonably ascertainable; and subsection (e), Removal costs, provides that the owner of a removed sign must remit removal costs to the department, and describes how removal costs will be determined. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Articles 6666 and 6674v- 7, 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 to adopt rules governing the removal and disposal of unauthorized signs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 9, 1992. TRD-9216413 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: December 30, 1992 Proposal publication date: October 9, 1992 For further information, please call: (512) 463-8630