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 13. CULTURAL RESOURCES Part II. Texas Historical Commission Chapter 15. Administration of Federal Programs 13 TAC sec.15.7 The Texas Historical Commission adopts new sec.15.7, concerning Memoranda of Understanding, with changes to the proposed text as published in the September 9, 1992, issue of the Texas Register (17 TexReg 6174). The new section allows for the appropriate placement of Memoranda of Understanding in agency rules concerning the administration of federal programs. The new section is also required by the provisions of Texas Civil Statutes, Article 6673g enacted by Senate Bill 352, 72nd Legislature, 1991. Article 6673g directs the Texas Department of Transportation to adopt a Memorandum of Understanding (MOU) with applicable environmental resources agencies, including the commission. Article 6673g further directs each of the environmental agencies to adopt the MOU and all revisions to the memorandum. The MOU provides for the review of TxDOT projects which have the potential to affect historic properties and cultural resources within the jurisdiction of the commission. The intent of the MOU is for the commission to assist TXDOT in making environmentally sound decisions and to develop an information system regarding cultural resources. Increased coordination ensures that historic properties and archeological sites are given full consideration in a uniform and timely manner. A joint public hearing was held by TxDOT and the Commission September 14, 1992. A Representative of the Lone Star Chapter of the Sierra Club attended the hearing, presented oral testimony concerning the MOU, and submitted written comments following the public hearing. No other comments were received. The organization supports the improved communication between the agencies and believes that the MOU is an improvement, in that respect. However, the group expressed concerns for enforcement of the agreement and the need to ensure that it is properly implemented. Three specific recommendations made by the Sierra Club and the Commission's responses follow. First, the Sierra Club requests modifications to the definition of the term "Project development". The requested modifications expand the definition to include all project studies prior to right-of-way designation or acquisition. The TxDOT and The Commission disagree. It is the intention of TxDOT to complete all studies and surveys necessary to properly evaluate the impact of a project on natural and cultural resources early in the planning process. TxDOT and the Commission, however, believe that the definition of the term "project development" included in the MOU is appropriate since under certain circumstances studies cannot be completed or performed prior to acquisition of right-of-way as authorized by federal law and denial of access by property owner. When a property owner denies access to his or her property, TxDOT's ability to perform early studies can be significantly hampered. Second, the group recommends changes to subclause sec.15.7(D)(V) of this title, relating to Archeological Sites Found After Award of Contract. This recommendation requires TxDOT and the review agency to prepare a plan of action for reroute alternatives and terminated projects. The Commission and TxDOT disagree with their comment. Should an archeological site be found during the course of construction, all feasible measures to minimize harm will be considered. However, once construction has commenced, the feasibility of selecting an alternative route or canceling the project is greatly reduced. Third, the Sierra Club further suggests the addition of a new subclause to be named "Failure to report." Paraphrased, the suggested subclause states that if review agency determines that any TxDOT"... archeological investigations are inadequate, the reviewing agency shall give notice to TxDOT and the highway project shall cease until inadequacies are corrected." In the organization's opinion, the addition clarifies the Commission's authority to require timely and adequate testing and reporting data from TxDOT. To address these concerns, a new clause is included in the MOU. The final adoption, therefore, is made with changes in the form of a new clause sec.15. 7(b)(1)(d)(iv) of this title, relating to Resolution of Objections. The clause provides for the reviewing agency to timely object to plans submitted for review, or proposed actions, and for TxDOT and the reviewing agency to enter in consultation to resolve the objection. If the objection cannot be resolved, the reviewing agency may terminate consultation and invoke Dispute Resolution proceedings. The new section is proposed under the Texas Government Code, Chapter 442, sec.442.005(q), which provides the Texas Historical Commission with the authority to promulgate rules and regulations as it shall deem proper for effective administration. sec.15.7. Memoranda of Understanding. (a) Introduction. It is in public policy and in the public interest to locate, protect, and preserve archeological sites and historic properties. Furthermore, it is in the best interest of the public to enter into agreements to provide for timely and efficient construction of transportation facilities, reservoirs, public buildings, and infrastructure. Memoranda of understanding are formal agreements which provide for the preservation of the environment; wise, productive use of cultural and natural resources; good stewardship of historic landmarks; and protection of public and private investment in historic properties. (b) Memoranda of understanding. Memoranda of understanding are mutual agreements entered into in order to better implement programs and policies for the preservation of historic and archeological resources. A memorandum of understanding (MOU) is a formal mechanism which fosters the joint review of the impact of federal projects on cultural resources. Increased coordination and communication between agencies ensures that historical properties and archeological sites are given full consideration in a uniform and timely manner. (1) Texas Department of Transportation (TxDOT). (A) Need for agreement. (i) It is the practice of TxDOT to: (I) investigate fully the environmental impacts of TXDOT transportation projects, coordinate these projects with applicable state and federal agencies, and reflect these investigations and coordinations in the environmental documentation for each project; (II) base project decisions on a balanced consideration of the need for a safe, efficient, economical, and environmentally sound transportation system; (III) complete public involvement and a systematic interdisciplinary approach as essential parts of the development process for transportation projects; and (IV) mitigate project impacts to provide environmentally sound roadway projects where such mitigation is feasible and prudent and where such mitigation is agreed upon by appropriate agencies. (ii) In order to pursue this policy, TXDOT, the Texas Historical Commission (THC), and the Texas Antiquities Committee (Committee) have agreed to develop the MOU, which will supersede TXDOT's MOU with the Committee which became effective on January 5, 1972. (iii) Senate Bill 352, enacted by the 72nd Legislature, directs TXDOT to adopt a memoranda of understanding with applicable environmental resources agencies. (iv) The rules for coordination of state-assisted transportation projects developed by TXDOT and published in the June 11, 1991, issue of the Texas Register (16 TexReg 3197) underline the need for and importance of comprehensive environmental coordination for all transportation projects. (v) It is the intent of this MOU to provide a formal mechanism by which THC and the Committee may review TXDOT projects which have the potential to affect historic properties (cultural resources) within the jurisdiction of THC and the Committee, and to develop a system by which information held by TXDOT, THC, and the Committee may be exchanged to their mutual benefit. (vi) This memorandum supersedes that memorandum of understanding executed by TxDOT, THC, and the Committee on January 31, 1992, and that memorandum of understanding is of no further force of effect. (B) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (i) Antiquities Code of Texas (ACT)-Designates the Committee as the legal custodian of all cultural resources, historic and prehistoric, within the public domain of the State of Texas, and the body which issues antiquities permits, in accordance with Chapter 41 of this title (relating to Practice and Procedure) and as provided in ACT sec.sec.191.054 and 191.091-191.089. (ii) Antiquities permit-A permit issued by the Committee in order to regulate site destruction, archeological testing, and archeological excavation. (iii) Archeological excavation (data recovery)-Use of field techniques, including those of archeological testing, but with the goal of addressing specific research issues identified with the site's historic context. Excavation (data recovery) is conducted under an approved data recovery plan developed in consultation with the state historic preservation officer and the Advisory Council on Historic Preservation, following the procedure set forth under 36 Code of Federal Regulations 800, for federal undertakings; or in consultation with the Committee for non-federal undertakings, in accordance with Chapter 41 of this title. (iv) Archeological monitoring -Use of a professional archeologist present on- project when clearing and grubbing or other construction activities are being conducted. Should evidence of archeological remains be encountered, TXDOT will ensure that clearing and grubbing or other construction activities shall cease in the area of the archeological remains until these remains can be assessed and evaluated in accordance with appropriate state and federal laws and regulations. (v) Archeological resource/site -Locations where prehistoric or historic remains are found in a primary deposit, excluding extant standing structures dating from the historic time period. Note that archeological sites can be associated with a historic structure and historic structural ruins can be designated as archeological sites ( sec.41.5 of this title (relating to Definitions)). However, an extant standing structure itself (as contrasted to a historic structural ruin) does not constitute an archeological site in the absence or other associated remains. Prehistoric ruins are considered to be archeological sites. (vi) Archeological survey-Archeological field methods used to locate archeological remains, including on-foot examination of the surface, shovel testing, and subsurface trenching by mechanical means where appropriate. (vii) Archeological testing -Use of field techniques including excavation of holes larger or deeper that those of a shovel test, and including mechanical trenching and removal of artifacts. Archeological field research limited to determination of eligibility for the National Register of Historic Places (NRHP) for federal undertakings, as defined in 36 Code of Federal Regulations 800, or determination of significance for non-federal undertakings, as defined in Chapters 41, 43, and 45 of this title (relating to Practice and Procedure; Procedure; State Archeological Landmarks). The review agency will determine what level of testing is appropriate under the MOU. The Committee will determine when test phase investigations warrant an antiquities permit. (viii) Committee-The Texas Antiquities Committee. (ix) Cultural resources-A general term synonymous with "historic properties." (x) Eligibility-A site's eligibility for the NRHP as set forth in 36 Code of Federal Regulations 800. (xi) Environmental documents -Decision-making documents which incorporate the results of environmental studies, coordination and consultation efforts, and engineering elements. Types of documents include categorical exclusion assessments, environmental assessments, and environmental impact statements. (xii) Historic property-Any prehistoric or historic district, site building, structure, or object included in, or eligible for inclusion in the NRHP, as defined in 36 Code of Federal Regulations 800.2. (xiii) Historic resource-A feature of the built environment which is potentionally eligible for listing in the NHRP as defined in 36 Code of Federal Regulations 60. (xiv) Historic resource survey -Examination of the project for the presence of historic resources. (xv) Mechanical testing-Excavation with backhoe, Gradall, or other heavy equipment in order to locate archeological remains. (xvi) Project development-The planning process of a highway project, which includes engineering design as well as environmental studies and public involvement procedures. Project development generally includes all studies of a project prior to actual construction. (xvii) Review agency-The appropriate review agency for each particular circumstance. THC has jurisdiction over federal undertakings, as defined in 36 Code of Federal Regulations 800, and the Committee has jurisdiction over non- federal undertakings and the issuing of antiquities permits, as provided in ACT sec.191.054 and sec.191.098. (xviii) Right-of-way-The land provided for a highway, usually including the roadway itself, shoulders, and areas between the roadway and adjacent properties. (xix) Shovel testing-Excavation of test holes which shall measure at least 35 centimeter in diameter and shall be excavated to a basal horizon or bedrock, or to a depth of at least 1 millimeter if a basal horizon or bedrock is not reached. This technique is used both in areas where surface visibility is low and in areas where the potential for archeological remains is high. Shovel testing is also used when surface indications of archeological remains are encountered in order to provide a preliminary determination of the depth of the cultural deposits. (xx) State archeological landmark-Archeological and historic properties as defined in the Antiquities Code of Texas ACT, Subchapter D and identified in accordance with Chapters 41 and 45 of this title. (xxi) Subsurface survey-Mechanical or hand-dug probing of a site or project area during the survey phase to record or examine subsurface deposits, for the collection of archeological or geomorphic data. (C) Responsibilities. (i) TxDOT. (I) The responsibilities of TXDOT pertain to its functions as a transportation agency, and include the following: (-a-) planning and designing safe, efficient, cost-effective, and environmentally sound transportation facilities, and avoiding, minimizing, or compensating for environmental impacts as far as practicable when they are anticipated to occur; (-b-) the timely and efficient construction of transportation facilities, executed in a manner consistent with approved plans or agreements which have been entered into by the department for the protection of the natural environment and cultural sites; and (-c-) the ongoing maintenance of these facilities to provide safe, efficient, and environmentally sound transportation facilities for the traveling public, and dedication to the protection of natural and cultural resources within the jurisdiction of TxDOT. (-d-) a commitment to the preservation and enhancement of the human environment. (II) Senate Bill 352, which became effective on September 1, 1991, directs TXDOT to adopt an MOU with each state agency that has responsibilities for the protection of the natural environment or for the preservation of historic and archeological resources. (ii) THC. THC, through the Office of the State Historic Preservation Officer (SHPO), regulates the disposition and management of historic properties which are affected by federal undertakings, as described in the National Historic Preservation Act, sec.106, and in 36 Code of Federal Regulations 800. (iii) The Committee. (-a-) The Committee regulates the disposition and management of archeological landmarks which are affected by non-federal undertakings, as described in the ACT and Chapter 41 of this title. (-b-) The Committee issues permits for the taking, excavation, restoration, or study of state archeological landmarks as provided in the ACT, sec.sec.191.054 and 191.091-191.098. (D) Provisions. (i) Procedures for coordination regarding archeological resources. (I) Initial coordination phase. (-a-) TxDOT may combine the initial coordination phase with the archeological survey phase in order to expedite project coordination. In these cases, the review agency will be afforded an opportunity to comment on both the survey methodology and survey results. (-b-) TxDOT will identify projects requiring coordination for archeological resources, as indicated by the level of project documentation. Such projects include: (-1-) any project which, although classified as a categorical exclusion (CE), is judged to have the potential to affect archeological resources; (-2-) all projects requiring issuance of a finding of no significant impact (FONSI), when such a project is judged to have the potential to affect archeological resources; and (-3-) all projects requiring an environmental impact statement (EIS). (-c-) TXDOT will identify projects which are not believed to require individual coordination for archeological sites and will provide THC and the Committee with a list of such projects on a monthly basis. (-d-) TxDOT will begin coordination by conducting a search of the site files at the Texas Archeological Laboratory (TARL) as well as site files and survey records held at THC and the Committee. THC and the Committee will render TxDOT all reasonable assistance in the search. (-e-) TxDOT will request a review of the project by the review agency. TxDOT will submit for review: (-1-) plans, project descriptions, and other documentation required by the review agency for review; (-2-) a statement detailing the result of the site files search, including information on any sites listed in the site files and occurring on or near the project, including a list of properties on or near the project which are listed in the NRHP, or are designated as state archeological landmarks (SALs); and (-3-) a statement recommending which portions of the project are to be surveyed, the techniques to be used on each part of the project, and identifying the portions of the project which have high likelihood of yielding archeological remains. (-f-) The review agency will respond within 30 days of receipt of the TxDOT request for review of the project. The response will include: (-1-) a statement of concurrence or nonconcurrence with the results of the site fields check and the survey recommendations contained in the TxDOT request for review; and (-2-) any other comments relevant to the archeological resources which could be affected by the project. (-g-) TxDOT will include the results of the site files search, survey recommendations, and comments from the review agency in any environmental assessment or draft EIS written as part of the project, and will present findings at the public hearing, if such hearing is held. (II) Archeological survey phase. (-a-) All projects, and portions of projects, recommended for survey by TxDOT and for which concurrence has been obtained from the review agency during the initial phase of coordination will be the subjects of archeological survey using the methods agreed upon between TxDOT and the review agency. (-b-) An archeological survey will be conducted by a member of the TxDOT professional archeological staff or other archeologist approved by the review agency. (-c-) When the archeological survey has been completed, TxDOT will request a review of the results of the survey. With its request for review, TxDOT will include: (-1-) a letter report or form detailing the results of the survey, including a discussion of any deviations from the methods agreed upon during the initial phase of coordination; (-2-) the project location plotted on 7.5' Series USGS quadrangle maps; (-3-) copies of archeological site survey forms for any new archeological sites discovered during survey; (-4-) copies of archeological sites survey forms for any previously recorded archeological sites; and (-5-) recommendations regarding archeological testing or archeological monitoring. (-6-) if deemed necessary, the review agency may request TxDOT to produce a formal report of findings made as a result of a survey phase investigation. (-d-) The review agency will respond within 30 days of receipt of the TxDOT request for review of the survey results and recommendations. The response will include: (-1-) a statement of concurrence or nonconcurrence with the results of the site files check and the survey results contained in the TxDOT request for review; and (-2-) any other comments relevant to the archeological resources which could be affected by the project. (-e-) TxDOT will include the results of the archeological survey and recommendations in the environmental assessment or final EIS, if one is prepared. (III) Archeological testing phase. (-a-) All sites and portions of sites recommended for testing by TxDOT, THC, or the Committee will be subjects of archeological testing, using methods agreed upon by TxDOT and the review agency. (-b-) The review agency may send a representative to observe any or all of the testing procedures. (-c-) At the completion of testing, TxDOT will prepare a formal report of the results of testing. (-1-) For sites affected by federal undertakings, the report will include recommendations regarding eligibility for the NRHP, as described in 36 Code of Federal Regulations 800. (-2-) For sites affected by non-federal undertakings, the report will include recommendations regarding the significance of the site and whether designation as an SAL is warranted, in accordance with the ACT, sec.191.091 and sec.191.092, and Chapters 41, 43, and 45 of this title. (-d-) TxDOT will send the testing report to the review agency with a request for review. (-e-) THC, in accordance with 36 Code of Federal Regulations 800, will respond to the report within 30 days of receipt of the TxDOT request for review. The response will include: (-1-) a statement of concurrence or nonconcurrence with the results of the archeological testing and recommendations contained in the TxDOT request for review; (-2-) a determination of the site's eligibility for listing in the NRHP; and (-3-) any other comments relevant to the archeological site which has undergone archeological testing. (-f-) The Committee, in accordance with Chapter 41 of this title and the ACT, Chapter 191, will respond to the report within 60 days of receipt of the TxDOT request for review. The response will include: (-1-) a statement of concurrence or nonconcurrence with the results of the archeological testing and recommendations contained in the TxDOT request for review; (-2-) a determination of whether the site warrants designation as an SAL; and (-3-) any other comments relevant to the archeological site which has undergone archeological testing. (-g-) TxDOT will include the results of the archeological survey and recommendations in the environmental assessment or final EIS, if one is prepared. (-h-) The Committee may require an antiquities permit be issued for some test phase investigations if the scope of the investigations warrants it. All testing performed by non-TxDOT staff archeologists must be performed under an antiquities permit. (IV) Archeological excavation/data recovery. (-a-) All sites and portions of sites determined to be eligible for the NRHP (for federal undertakings) or significant (for non-federal undertakings) based on consultation with the review agency during the survey phase or testing phase will be the subjects of data recovery. (-b-) TxDOT (or their contracted agency), in consultation with the review agency, will develop a suitable data recovery plan for each eligible or significant archeological site on a case-by-case basis, in accordance with 36 Code of Federal Regulations 800 for federal undertakings and the ACT, Chapter 191 for non-federal undertakings. Final data recovery plans must be approved by the review agency prior to their implementation. (-c-) Results of data recovery will be published as required by 36 Code of Federal Regulations 800 and/or the ACT, Chapter 191. (V) Archeological sites found after award of contract. (-a-) When previously unknown archeological remains are encountered after award of contract, TxDOT will immediately suspend construction that would affect the site. (-b-) A TxDOT archeologist will examine the remains and report the findings to the appropriate review agency. The Federal Highway Administration (FHWA) will enter consultations regarding the disposition of the site or sites for federal undertakings, as required by 36 Code of Federal Regulations 800. (-c-) TxDOT and the review agency will prepare a plan of action to determine eligibility or significance, and/or mitigate the effects on the site. (-d-) TxDOT may continue construction in the affected area upon approval of the review agency. (ii) Procedures for coordination regarding historic resources. (I) TxDOT will identify projects requiring coordination with the review agency for historic resources. Coordination will be required for: (-a-) any project which, although classified as a CE, is judged to have the potential to affect historical resources; (-b-) any project requiring the issuance of an FONSI, when such project is judged to have the potential to affect historic resources; (-c-) all projects requiring an EIS. (II) TxDOT will identify which projects require individual coordination for historic resources. The TxDOT will provide a list of those projects which do not require individual coordination to the THC and Committee on a monthly basis. (III) For projects requiring individual coordination, TxDOT will conduct a search of available records, references, and resources, including listings of Registered Texas Historic Landmarks (RTHLs), SALs, and properties listed in the NRHP, as well as local historic property survey files on record at THC. THC and Committee will render all reasonable assistance to the TxDOT in the search. (IV) TxDOT will conduct historic resources surveys to locate historic resources which are potentially eligible for inclusion in the NRHP. (V) For each project requiring individual historic resources coordination with the review agency, TxDOT will provide the following: (-a-) plans, project descriptions, and other documentation as needed; (-b-) a statement detailing the results of the records search; (-c-) a summary of the results of the historic resources survey, describing all resources: (-1-) listed in or potentially eligible for listing in the NRHP for federal undertakings; or (-2-) which possess historical interest as defined by the ACT, sec.191. 092 for non-federal undertakings. (VI) The review agency will respond within 30 days of receipt of the TxDOT request for review of the project. The response will be in accordance with 36 Code of Federal Regulations 800, the ACT, Chapter 191, and Chapter 41 of this title. (VII) TxDOT will include information on historic resources in the environmental assessment or final EIS, if one is prepared. (VIII) TxDOT will include information on historic resources in the environmental assessment or final EIS, if one is prepared. (IX) All historic resources either listed in or determined eligible for listing in the NRHP (for federal undertakings) or designated SALs (for non- federal undertakings) which are affected by projects will be subject to mitigation of these effects. (X) TxDOT, in consultation with the review agency, will develop a suitable mitigation plan: (-a-) in accordance with 36 Code of Federal Regulations 800 for historic resources listed in or determined eligible for listing in the NRHP for federal undertakings; or (-b-) in accordance with the ACT, Chapter 191, for historic resources designated as SALs for non-federal undertakings. Final mitigation plans must be approved by the review agency prior to implementation of mitigation efforts. (iii) Artifact recovery and curation. (I) Artifact recovery. (-a-) All artifacts or analysis samples (such as soil samples) that are recovered from survey, testing, or data recovery investigations by TxDOT or their contracted agents must be cleaned, labeled, and processed in preparation for long-term curation. (-b-) Recovery methods must conform to 36 Code of Federal Regulations 800, Committee rules, and/or Council of Texas Archeologists (CTA) guidelines to ensure proper care and curation. (II) Artifact curation. (-a-) TxDOT may temporarily house artifacts and samples during their laboratory analysis research, but all artifacts must be transferred to a permanent curatorial facility within a reasonable time period, to be decided by the review agency. (-b-) All artifacts and samples must be placed at the Texas Archeological Research Laboratory or some regional artifact curatorial repository which fulfills 36 Code of Federal Regulations 800, Committee rules, or CTA curation standards, as approved by the review agency. (-c-) TxDOT is responsible for the curatorial preparation of all artifacts so that they are acceptable to the receiving curatorial repository and fulfill 36 Code of Federal Regulations 79, Committee rules, or CTA curation standards, as approved by the review agency. (iv) Resolution of objections. (I) Should the reviewing agency timely object (within stipulated review period) to any plans provided for review or any actions proposed by TxDOT regarding: (-a-) any phase of coordination for archeological resources including initial coordination, survey, testing, excavation/data recovery, and reporting; (-b-) any phase of coordination for historic resources including initial coordination, historic resources survey, and mitigation; or (-c-) curation of site materials, documentation and samples, TxDOT and reviewing agency shall enter into consultation to resolve the objection. (II) If the objection cannot be resolved through the consultation process, either TxDOT or the reviewing agency, at any time, may terminate consultation and invoke the provisions of subparagraph (E) of this paragraph. (E) Dispute Resolution. (i) In such instances when TxDOT and the review agency are unable to reach a mutually agreeable plan of action regarding survey, testing, determination of eligibility or significance, or mitigation, a good-faith effort will be made to develop a compromise plan. (ii) If TxDOT and the review agency cannot arrive at a compromise plan, the dispute will be resolved in accordance with procedures established under state and federal rules. (I) Federal undertakings will follow the procedures provided in 36 Code of Federal Regulations 800, including consultation with the Advisory Council on Historic Preservation, if necessary. (II) Non-federal undertakings will follow the procedures provided in Chapters 41, 43, and 45 of this title. (F) Review of MOU. This memorandum shall be reviewed and updated no later than January 1, 1997, and every fifth year after that date, as provided for in Senate Bill 352 and Texas Civil Statutes, Article 6673g, sec.3(d). (2) Future adoption of memoranda of understanding. The commission may, at a later date, adopt by rule memoranda of understanding with additional state and/or federal agencies to better implement programs and policies for the preservation of historic properties and archeological resources. 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 15, 1992. TRD-9216694 Curtis Tunnell Executive Director Texas Historical Commission Effective date: January 6, 1993 Proposal publication date: September 9, 1992 For further information, please call: (512) 463-6100 TITLE 19. Education Part II. Texas Education Agency Chapter 75. Curriculum Subchapter D. Essential Elements-Grades 9-12 278>19 TAC sec.sec.75.62, 75.63, 75.66 (Editor's note: Due to an agency error in the July 24, 1992, issue of the Texas Register (17 TexReg 5197), the following sections were adopted without changes when in fact changes were made to the sections as proposed. The sections are now being published. The effective date remains August 6, 1992. The Texas Education Agency (TEA) adopts amendments to sec. sec.75.62, 75.63, and 75.66, concerning essential elements - Grades 9-12, with changes to the proposed text as published in the May 19, 1992, issue of the Texas Register (17 TexReg 3687). Identical amendments were adopted in the July 24, 1992, issue of the Texas Register (17 TexReg 5197). At that time, the TEA filed the adopted rule text for public inspection with changes to the proposed text; however, due to a proofreading error, the preamble stated that the amendments were adopted without changes. Consequently, the Texas Register did not publish the text of the sections. The effective date remains August 6, 1992. The amendments are necessary to refine curriculum essential elements. The changes to sec.75.62 adjust the proficiency levels of language skill requirements. They also incorporate new areas of emphasis in the field of writing to parallel first language instruction. The changes to sec.75.63 correct the spelling of the word "COBOL" and add "C" to the list of programming languages for which the student must be able to identify appropriate uses. The changes to sec.75.66 remove the limitations on aerobic exercise by replacing the phrase "aerobic dance" with "aerobic activities." No comments were received regarding adoption of the amendments. Based on a five-year review, the amendments revise essential elements in the state curriculum related to subjects and courses that will be included in the 1993 textbook proclamation. The amendments are adopted under the Texas Education Code, sec.21.101(c), which authorizes the State Board of Education to promulgate rules designating the essential elements of each subject and course in the state curriculum. sec.75.62. Other Languages. (a) Other languages, Level I (one unit). Essential elements described in this subsection for other languages, Level I, shall be superseded by the essential elements described in subsection (j) of this section effective September 1996. Other languages, Level I, shall include in a sequential program the following essential elements. (1)-(6) (No change.) (b) Other languages, Level II (one unit). Essential elements described in this subsection for other languages, Level II, shall be superseded by the essential elements described in subsection (k) of this section effective September 1996. Other languages, Level II, shall include in a sequential program the following essential elements. (1)-(7) (No change.) (c) Other languages, Level III (one unit). Essential elements described in this subsection for other languages, Level III, shall be superseded by the essential elements described in subsection (l) of this section effective September 1996. Other languages, Level III, shall include in a sequential program the following essential elements. (1)-(6) (No change.) (d) Advanced languages I, II, III, IV (one-half to one unit). Essential elements described in this subsection for advanced languages I, II, III, IV shall be superseded by the essential elements described in subsections (m) and (n) of this section effective September 1996. Advanced languages I, II, III, IV shall include in a sequential program one or more of the following essential elements. (1)-(4) (No change.) (e)-(i) (No change.) (j) Languages, Level I (one unit). Essential elements for languages, Level I, as described in this subsection shall be effective September 1996. Languages, Level I, shall include the following essential elements in a sequential program for modern and classical languages. The sequence provides for an integration of skills and a spiraling of content throughout the learning process. (1) Oral communication: listening and speaking. (A) Skills and concepts that result in the understanding of sentence-length utterances, including recombinations of learned material on a variety of topics. The student shall be provided opportunities to: (i) discriminate sounds in meaningful contexts; (ii) distinguish variations in sounds and intonation patterns; (iii) comprehend basic structures, expressions, and common vocabulary; and (iv) comprehend short familiar utterances. (B) Skills and concepts that result in the handling of a limited number of spoken communicative tasks and situations. The student shall be provided opportunities to: (i) reproduce sounds and intonation patterns in meaningful contexts; (ii) use words, phrases, and sentences as appropriate; (iii) use expressions needed for classroom and/or daily life situations; and (iv) restate familiar material. (2) Written communication: reading and writing. (A) Skills and concepts that result in the comprehension of main ideas and/or some facts from simple connected texts. The student shall be provided opportunities to: (i) read familiar material orally, approximating correct pronunciation and intonation; (ii) read familiar material with comprehension; and (iii) use word recognition skills. (B) Skills and concepts that result in meeting limited practical writing needs. The student shall be provided opportunities to: (i) write familiar material using spelling, capitalization, and punctuation conventions; and (ii) write from dictation. (3) Culture and language. (A) Concepts that result in knowledge and awareness of the culture of another people within a range of situations. The student shall be provided opportunities to: (i) experience various aspects of another culture such as contemporary life, the arts, geography, history, and literature; and (ii) understand that behavior is conditioned by culture. (B) Concepts that result in generalizations about how a language operates and skills that result in the application of the language learning process to the study of other languages. The student shall be provided opportunities to: (i) recognize the interrelationship of languages; (ii) recognize the role of nonlinguistic elements in communication; (iii) recognize the role of errors and the process of self-correction in learning a language; and (iv) develop language learning techniques. (k) Languages, Level II (one unit). Essential elements for languages, Level II, as described in this subsection shall be effective September 1996. Languages, Level II, shall include the following essential elements in a sequential program for modern and classical languages. The sequence provides for an integration of skills and a spiraling of content throughout the learning process. (1) Oral communication: listening and speaking. (A) Skills and concepts that result in the understanding of sentence-length utterances, including recombinations of learned material on a variety of topics. The student shall be provided opportunities to: (i) distinguish variations in sounds and intonation patterns; (ii) comprehend basic structures, expressions, and common vocabulary; (iii) comprehend short familiar utterances; and (iv) recognize familiar material in unfamiliar context. (B) Skills and concepts that result in the handling of a limited number of spoken communicative tasks and situations. The student shall be provided opportunities to: (i) reproduce sounds and intonation patterns in meaningful contexts; (ii) use words, phrases, and sentences as appropriate; (iii) use expressions needed for classroom and/or daily life situations; (iv) restate familiar material; and (v) use alternate means of communicating an idea. (2) Written communication: reading and writing. (A) Skills and concepts that result in the comprehension of main ideas and/or some facts from simple connected texts. The student shall be provided opportunities to: (i) read familiar material orally, approximating correct pronunciation and intonation; (ii) read familiar material with comprehension; (iii) use word recognition skills; and (iv) understand unfamiliar material in context. (B) Skills and concepts that result in meeting limited practical writing needs. The student shall be provided opportunities to: (i) write familiar material using spelling, capitalization, and punctuation conventions; (ii) write from dictation; and (iii) write familiar memorized material with some recombinations. (3) Culture and language. (A) Concepts that result in knowledge and awareness of the culture of another people within a range of situations. The student shall be provided opportunities to: (i) experience various aspects of another culture such as contemporary life, the arts, geography, history, and literature; (ii) understand that behavior is conditioned by culture; (iii) become aware of the cultural connotations of common words and phrases; and (iv) locate and organize cultural information. (B) Concepts that result in generalizations about how a language operates and skills that result in the application of the language learning process to the study of other languages. The student shall be provided opportunities to: (i) recognize the interrelationship of languages; (ii) recognize that some language features are unique; (iii) recognize the role of errors and the process of self-correction in learning a language; and (iv) develop language learning techniques. (l) Languages, Level III (one unit). Essential elements for languages, Level III, as described in this subsection shall be effective September 1996. Languages, Level III, shall include the following essential elements in a sequential program for modern and classical languages. (The essential elements for listening, speaking, and writing will not be as fully developed in classical languages as in modern languages.) The sequence provides for an integration of skills and a spiraling of content throughout the learning process. (1) Oral communication: listening and speaking. (A) Skills and concepts that result in the understanding of sentence-length utterances, including recombinations of learned material on a variety of topics. (For classical languages, clauses (iv)-(vii) of this subparagraph may be inappropriate.) The student shall be provided opportunities to: (i) comprehend basic structures, expressions, and common vocabulary; (ii) comprehend short familiar utterances; (iii) recognize familiar material in unfamiliar context; (iv) comprehend native speakers in controlled situations; (v) understand face-to-face speech in a standard dialect on everyday topics; (vi) comprehend simple telephone messages and uncomplicated announcements and reports over the media; and (vii) interpret body language and context to aid comprehension. (B) Skills and concepts that result in the handling of a limited number of spoken communicative tasks and situations. (For classical languages, clauses (v), (vii), (viii) of this subparagraph may be inappropriate.) The student shall be provided opportunities to: (i) reproduce the sounds and intonation patterns in meaningful contexts; (ii) use expressions needed for classroom and/or daily life situations; (iii) retell familiar material; (iv) use alternate means of communicating an idea; (v) initiate and respond to simple statements; (vi) ask and answer questions; (vii) sustain face-to-face conversations on familiar subjects; and (viii) describe particular interests. (2) Written communication: reading and writing. (A) Skills and concepts that result in the comprehension of main ideas and/or some facts from simple connected texts. The student shall be provided opportunities to: (i) use word recognition skills; (ii) understand unfamiliar material in context; (iii) identify main idea and supporting details; and (iv) read selections of simple prose and/or poetry. (B) Skills and concepts that result in meeting limited practical writing needs. (For classical languages, clauses (ii)-(v) of this subparagraph may be inappropriate.) The student shall be provided opportunities to: (i) write familiar or memorized material with some recombinations; (ii) supply information on simple forms and documents; (iii) create statements and questions relating to familiar topics; (iv) write short messages; and (v) apply the writing process to plan and generate writing for a variety of purposes in a variety of formats. (3) Culture and language. (A) Concepts that result in knowledge and awareness of the culture of another people within a range of situations. The student shall be provided opportunities to: (i) experience various aspects of another culture such as contemporary life, the arts, geography, history, and literature; (ii) understand that behavior is conditioned by culture; (iii) become aware of the cultural connotations of common words and phrases; and (iv) study cultural generalizations. (B) Concepts that result in generalizations about how a language operates and skills that result in the application of the language learning process to the study of other languages. The student shall be provided opportunities to: (i) recognize appropriate language for different social situations; (ii) recognize language as a structured and evolving system of communication; (iii) recognize the role of errors and the process of self-correction in learning a language; and (iv) develop language learning techniques. (m) Modern Languages, Levels IV, V, VI, VII (one unit). Essential elements for modern languages, Levels IV, V, VI, VII, as described in this subsection shall be effective September 1996. Modern languages, Levels IV, V, VI, VII, shall include the following essential elements in a sequential program. The sequence provides for an integration of skills and a spiraling of content throughout the learning process. Culture is taught as an integral part of oral and written communication skills. (1) Oral communication: listening and speaking. (A) Skills and concepts that result in the understanding of main ideas and most details of stretches of connected speech of a native speaker on a number of topics beyond the immediacy of the situation. The student shall be provided opportunities to: (i) understand face-to-face speech in a standard dialect on everyday topics; (ii) follow the essential speech, and/or explanation on social and work- related topics; (iii) understand some main ideas and supporting detail; and (iv) comprehend telephone conversations, announcements and reports over the media, and/or short interviews. (B) Skills and concepts that result in handling most uncomplicated spoken communicative tasks and social situations when interacting with a native speaker. The student shall be provided opportunities to: (i) ask and answer questions; (ii) participate in casual conversations about current events, school, work, family, and/or autobiographical information; (iii) initiate, sustain, and close a conversation; (iv) narrate and describe topics of current public and/or personal interests in connected discourse; (v) express opinions; and (vi) expand the use of fundamental grammatical constructions. (2) Written communication: reading and writing. (A) Skills and concepts that result in being able to read and comprehend connected, authentic texts dealing with a variety of basic personal and social needs and interests. The student shall be provided opportunities to: (i) understand social notes and personal and business letters; (ii) read news items describing current events; (iii) do intensive and extensive reading, including simple fiction and/or nonfiction; (iv) read selections of prose and/or poetry of moderate difficulty with attention given to style; (v) identify main idea and supporting details; and/or (vi) use reference works such as dictionaries, encyclopedias, and atlases. (B) Skills and concepts that result in being able to meet most practical writing needs. The student shall be provided opportunities to: (i) take notes on familiar topics; (ii) do simple original composition, including social notes and personal letters; (iii) express personal preferences and observations in some detail; (iv) describe and narrate in paragraphs; (v) write simple summaries, brief synopses, and paraphrases relating to personal experiences; (vi) apply the writing process to plan and generate writing for a variety of purposes in a variety of formats; (vii) understand and use the forms and conventions of written language appropriately; (viii) use reference works such as dictionaries, encyclopedias, and atlases; and/or (ix) expand the use of fundamental grammatical constructions. (n) Classical languages, Levels IV, V, VI, VII (one unit). Essential elements for classical languages, Levels IV, V, VI, VII, as described in this subsection shall be effective September 1996. Classical languages, Levels IV, V, VI, VII, shall include the following essential elements in a sequential program. The sequence provides for an integration of skills and a spiraling of content throughout the learning process. (1) Reading. (A) Skills and concepts that result in the ability to read and comprehend connected, authentic texts of prose and poetry. The student shall be provided opportunities to: (i) do intensive and extensive reading; (ii) understand ordinary prose which may include such items as personal letters and inscriptions; and/or (iii) read selections of prose and/or poetry of moderate difficulty with attention given to style. (B) Listening, speaking, and writing. The student shall be provided opportunities to use the skills of listening, speaking, and writing to reinforce the continuing development of the skill of reading. (2) Culture. Culture is taught as an integral part of the skill of reading. sec.75.63. Mathematics. (a)-(l) (No change.) (m) Computer Mathematics I (one-half to one unit). Essential elements described in this subsection for Computer Mathematics I shall be superseded by the essential elements described in subsection (dd) of this section effective September 1996. (The Computer Mathematics course will replace the Computer Mathematics I and Computer Mathematics II courses.) Computer Mathematics I shall include the following essential elements. (1)-(7) (No change.) (n) Computer Mathematics II (one-half to one unit). Essential elements described in this subsection for Computer Mathematics II shall be superseded by the essential elements described in subsection (dd) of this section effective September 1996. (The Computer Mathematics course will replace the Computer Mathematics I and Computer Mathematics II courses.) Computer Mathematics II shall include the following essential elements. (1)-(8) (No change.) (o)-(cc) (No change.) (dd) Computer Mathematics (one-half to one unit). Essential elements for Computer Mathematics as described in this subsection shall be effective September 1996. (The Computer Mathematics course will replace the Computer Mathematics I and Computer Mathematics II courses.) Computer Mathematics shall include the following essential elements. (1) Fundamentals of computer systems. The student shall be provided opportunities to: (A) investigate major hardware components including storage, processing, and input/output devices; (B) investigate past and future computer technology and related applications; (C) use a computer system with attached peripherals; (D) investigate the way characters are stored in the computer memory, including the binary number system and bit and byte terminology; (E) use major types of applications software such as word processing, spreadsheets, database packages, and shells; and (F) explore telecommunications including data communication networks. (2) Programming languages and procedures. The student shall be provided opportunities to: (A) use hierarchy charts such as flowcharts, pseudocodes, and top-down design; (B) identify appropriate uses for languages such as BASIC, COBOL, FORTRAN, Pascal, C, and LISP; (C) use debugging techniques such as interpreting error messages and tracing transfer of control; (D) write structured programs using recursive techniques, arrays, functions, subroutines, and string manipulations; (E) use format techniques to design input and output; and (F) use a programming language in problem-solving situations. (3) Using the computer for topics in mathematics. The student shall be provided opportunities to: (A) explore topics related to consumer mathematics, including payroll, banking, budgets, investments, taxes, and loans and credit systems; (B) explore topics related to algebra, including evaluating expressions, the graphing of functions, relations and inequalities, the solving of equations and systems, sequences, series, and matrices; (C) explore topics related to geometry, including perimeters, areas, volumes, transformational and coordinate geometries, right triangles, properties of triangles and other polygons, and approximation of pi; (D) explore topics related to trigonometry, including trigonometric relationships, polar coordinates, parametric equations, and circular functions; (E) explore topics related to precalculus, including vectors, approximation of areas under a curve, length of arcs, and slopes/derivatives; (F) explore topics related to number theory, including prime numbers; greatest common divisor; least common multiple; divisibility; integral factorization; perfect, abundant, and deficient numbers; and modular arithmetic; and (G) explore topics related to probability and statistics, including permutations, combinations, random numbers, measures of central tendencies, graphing data, standard deviation, variance, simulations, and data analysis. (4) Using computer features and programs. The student shall be provided opportunities to: (A) create computer-generated graphics relating the computer commands to geometric principals, using animation which incorporates the use of functions, and fractals; (B) use a file structure (either a user-created sequential file or a commercial database); (C) use sort and search routines/features; and (D) use a random number generator. sec.75.66. Physical Education. (a) Physical Education I and II (one-half to one unit). Essential elements described in this subsection for Physical Education I and II shall be superseded by the essential elements described in subsections (d)-(f) of this section effective September 1996. Physical Education I and II shall include the following essential elements. (1)-(4) (No change.) (b) (No change.) (c) Dance I, II, III, IV (one-half to one unit). Dance I-IV shall include the essential elements listed in sec.75.67(s)-(v) of this title (relating to Fine Arts). Essential elements described in sec.75.67(s)-(v) shall be superseded by the essential elements described in sec.75.67(cc)-(ff) effective September 1993. (d) Physical Education IA, Foundations of Personal Fitness (1/2 unit). Essential elements for Physical Education IA, Foundations of Personal Fitness, as described in this subsection shall be effective September 1996. Physical Education IA, Foundations of Personal Fitness, shall include the following essential elements. (1) Analysis of the components of physical fitness. The student shall be provided opportunities to: (A) define physical fitness; (B) identify, describe, and demonstrate each of the health-related components of physical fitness; (C) identify, describe, and demonstrate each of the skill- related components of physical fitness; (D) compare and differentiate between health-related fitness and skill-related fitness; and (E) evaluate physical activities in terms of their specific contributions to health-related versus skill- related fitness. (2) Understanding of the relationship between physical fitness activities and stress. The student shall be provided opportunities to: (A) define stress; (B) identify the different types of stress and their relationship to specific health problems; (C) identify physical fitness activities that are positive coping strategies; and (D) identify, describe, and demonstrate how some types of physical activities and/or overtraining in a physical activity may induce negative coping strategies. (3) Understanding of sound nutritional practices related to physical fitness. The student shall be provided opportunities to: (A) describe and explain the relationship between caloric intake and caloric expenditure in relationship to physical activity; (B) describe and explain sound nutritional practices related to physical activity and proper dietary balance of carbohydrates, fats, protein, vitamins, and minerals; (C) describe and explain the importance of adequate fluid balance in relationship to physical activity; (D) describe and explain myths associated with nutritional practices related to physical activity; (E) describe and explain the methods of weight control; and (F) describe and explain the combined use of exercise and diet as a method of weight control. (4) Understanding of health problems associated with inadequate fitness levels. The student shall be provided opportunities to: (A) identify health-related problems associated with inadequate range of motion and poor flexibility; (B) identify health-related problems associated with inadequate cardiovascular fitness; (C) identify health-related problems associated with inadequate muscular strength and muscular endurance; and (D) identify health-related problems associated with an abnormal percentage of body fat. (5) Understanding of consumer issues related to physical fitness. The student shall be provided opportunities to: (A) differentiate between fact and myths as related to physical activity; (B) determine the validity of marketing claims promoting fitness products and services; (C) identify consumer issues related to selection, purchase, care, and maintenance of personal fitness equipment; and (D) describe and explain the consumer issues related to obtaining membership to a reputable health-fitness facility. (6) Selection of a variety of dynamic activities that will help students improve or maintain their physical fitness levels. The student shall be provided opportunities to: (A) identify and demonstrate a variety of static and dynamic stretching exercises which promote range of motion and flexibility; (B) identify and demonstrate a variety of aerobic activities that promote cardiovascular fitness; and (C) identify and demonstrate a variety of activities that promote muscular strength and muscular endurance. (7) Understanding and application of correct biomechanical and physiological principles related to exercise and training. The student shall be provided opportunities to: (A) identify and explain factors one should consider before engaging in a physical fitness program; (B) identify and explain the importance of a warm-up/cool-down period when participating in physical activity; (C) describe and explain the training principles of overload, progression, and specificity (frequency, intensity, duration); (D) describe and explain how range of motion and flexibility are improved through application of training principles; (E) describe and explain how cardiovascular fitness is improved through application of the training principles; (F) identify and explain the biomechanical principles related to cardiovascular activities; (G) describe and explain how muscular strength and muscular endurance are improved through application of the training principles; and (H) identify and explain the biomechanical principles related to muscular strength and endurance activities. (8) Understanding and application of safety practices associated with physical fitness. The student shall be provided opportunities to: (A) describe and explain safety procedures which should be followed when engaging in flexibility, cardiovascular and muscular strength, and muscular endurance activities; (B) describe and explain safety precautions which should be followed when engaging in physical activities regarding clothing, footwear, facilities, and environment; (C) identify and explain signs of heat illnesses caused by fluid loss; and (D) identify precautions to be taken when performing physical activities in extreme weather and/or environmental conditions. (9) Development and/or maintenance of an acceptable health-related level of physical fitness. The student shall be provided opportunities to demonstrate the attainment of the health-related components of physical fitness, measured by a valid and reliable criterion-referenced health-related physical fitness test, as part of their comprehensive physical fitness program. (10) Assessment of individual lifestyles in relationship to regular physical activity and one's quality of living. The student shall be provided opportunities to: (A) identify and describe how regular physical activity influences primary risk factors associated with disease, disability, and premature death; (B) differentiate between changeable and non-changeable risk factors in relation to regular physical activity; (C) identify personal health risk factors that can be changed and/or modified through regular physical activity and that will result in the pursuance of a healthy lifestyle; and (D) describe and explain the relationship between one's health and physical fitness and one's lifestyle. (11) Identification and modeling of characteristics of a positive attitude towards regular physical activity. The student shall be provided opportunities to: (A) identify positive and negative attitudes that people have toward exercise and physical activities; (B) identify why youth and adolescent health-fitness issues are related to national health concerns; and (C) describe the health-fitness benefits of achieving acceptable adult fitness levels. (12) Assessment of individual fitness levels. The student shall be provided opportunities to: (A) identify, describe, and demonstrate methods of evaluating flexibility; (B) identify, describe, and demonstrate methods of evaluating various cardiovascular fitness levels; (C) identify, describe, and demonstrate methods of evaluating muscular strength and muscular endurance levels; and (D) identify, describe, and explain a method of assessing body fat levels that would be consistent with good health. (13) Designing of a fitness program that meets individual student needs and interests. The student shall be provided opportunities to: (A) design a personal fitness program that will lead to or maintain an acceptable level of health-related fitness (generally based on criterion references from the physical fitness program selected by the teacher) based upon an understanding of training principles, individual skill levels, and availability of resources; and (B) determine appropriate individual requirements for physical activity prescription concerning the mode, intensity, duration, frequency, and progression. (e) Physical Education IB, Lifetime Activities (1/2 unit). Essential elements for Physical Education IB, Lifetime Activities, as described in this subsection shall be effective September 1996. Physical Education IB, Lifetime Activities, shall include the following essential elements. (1) Knowledge and motor skills basic to efficient movement. The student shall be provided opportunities to: (A) analyze, review, and improve movement skills basic to the activity being taught; (B) practice efficient movement; and (C) improve skills necessary for successful participation in physical activities. (2) Knowledge, skills, and rules basic to proficient participation in physical recreation activities and individual, dual, or team sports. The student shall be provided opportunities to: (A) learn skills, rules, strategies, officiating techniques, protocol, and safety practices appropriate to individual, dual, and team sports; (B) continue development and practice of behavior reflective of good sportsmanship; and (C) participate in lifetime activities that may include the following: aerobics, archery, badminton, basketball, bowling, dance, golf, horseshoes, outdoor recreational activities, shuffleboard, softball, swimming, table tennis, tennis, volleyball, and weight training. (f) Physical Education II, Intramurals/Fitness for Life (one-half to one unit). Essential elements for Physical Education II, Intramurals/Fitness for Life, as described in this subsection shall be effective September 1996. Physical Education II, Intramurals/Fitness for Life, shall include the following essential elements. (1) Demonstration and participation in lifetime activities within an intramural class format. The student shall be provided the opportunities to: (A) experience game-like conditions through intramural activities; (B) participate in voluntary intramural activities; (C) learn skills, rules, strategies, officiating techniques, protocol, and safety practices appropriate to individual, dual, and team sports; (D) continue development and practice of behavior reflective of good sportsmanship; (E) participate in lifetime activities that may include the following: aerobics, archery, badminton, basketball, bowling, dance, golf, horseshoes, outdoor recreational activities, shuffleboard, softball, swimming, table tennis, tennis, volleyball, and weight training; (F) experience and demonstrate skills and knowledge of fitness equipment for leisure and lifetime activities; and (G) learn physical, recreational, and leisure time use of resources available in the community. (2) Demonstration and participation in lifetime activities within a fitness class format. The student shall be provided the opportunities to: (A) participate in varied physical activities that could be continued throughout life; (B) participate in activities related to muscular strength and endurance, flexibility, cardiorespiratory endurance (sustained at the recommended duration of 20 minutes of activity in the personal target heart rate zone), body composition, nutrition, health-related fitness concepts and behaviors, and lifestyle problem-solving skills; (C) participate in sustained and continuous activities that address the three components of fitness training (frequency, intensity, and duration) required to develop and maintain desired levels of fitness; (D) develop and exhibit positive safety practices (warm-up and cool-down); (E) participate in flexibility and stretching exercises; (F) demonstrate cognitive understanding of the benefits of the components of health-related fitness; (G) develop and maintain an acceptable health-related level of physical fitness; (H) demonstrate the attainment of the health-related components of physical fitness as measured by a fitness assessment; (I) participate in weight training by: (i) utilizing fitness equipment similar to equipment used at health clubs; (ii) applying training principles from the foundations course; and (iii) applying safety practices (warm-up and cool-down, correct spotting techniques); (J) participate in aerobic activities by: (i) applying safety practices related to aerobic activities (correct shoes, low versus high impact); and (ii) analyzing, reviewing, and developing skills for safe and successful participation in aerobic activities. 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 18, 1992. TRD-9216770 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Effective date: August 6, 1992 Proposal publication date:: May 19, 1992 For further information, please call: (512) 463-9701 TITLE 22. EXAMINING BOARDS Part XV. Texas State Board of Pharmacy Chapter 291. Pharmacies Community Pharmacy (Class A) 22 TAC sec.sec.291.31-291.36 Due to errors in the December 8, 1992, issue of the Texas Register (17 TexReg 8522), sec. sec.291.31-291.36 are being republished for clarification. The effective date of January 1, 1993 will remain the same. The Texas State Board of Pharmacy adopts amendments to Sections 291. 31- 291.36. Sections 291.31-291.34 and 291.36, concerning definitions, personnel, operational standards, records, and Class A pharmacies compounding sterile pharmaceuticals are adopted with changes to the proposed text as published in the August 25, 1992, issue of the Texas Register (17 TexReg 5782). Section 291.35, concerning triplicate prescription requirements, is adopted without changes and will not be republished. The Federal Omnibus Budget Reconciliation Act of 1990 (OBRA '90) was signed into law on November 5, 1990. This Act amended the 1965 Medicaid law to condition Federal Medicaid payments for outpatient drugs on the participation of drug manufacturers in state rebate programs, the development of drug use review programs, and implementation of patient counseling requirements by the states. These adopted amendments will implement the prospective drug review provisions of the OBRA '90 and set standards for patient counseling and prospective drug review for all patients by pharmacists in Class A Pharmacies in Texas. In addition, the adopted rules correct non-substantive inconsistencies in the rules. A public hearing on the proposed rules was held on September 15, 1992, with eight persons giving oral testimony. In addition, the agency has received 17 letters of comment from 16 individuals for a total of 25 comments. The comments are summarized as follows. (1) Regarding Section 291.31 (Definitions), commentors suggested that: (a) the definition of "Confidential health information" be amended by deleting the word "which" and replace the "and" between subparagraph (B) and (C) with "or"; and (b) a definition for "new prescription" be added. The Agency agrees with these suggestions and has amended the definition of "confidential health information" as requested and added a definition for "new prescription." (2) Regarding sec.291.32 (Personnel), commentors suggested that: (a) the language in proposed sec.291.32(a)(2)(C) be modified to read the same as that in sec.291.33(c)(1)(B)(i); (b) pharmacists be allowed to delegate affixing the label to supportive personnel; (c) the phrase "in the pharmacist's professional judgement" be added to paragraph (2)(H); and (d) (2)(J)paragraph be amended as to read: "assuring that a reasonable effort is made to obtain, record, and maintain patient medication records at the individual pharmacy." The Agency agrees with the suggestions made in (a), (c), and (d) and has amended the proposed language as suggested. The agency disagrees with the suggestion in (b) and believes that at the present time a pharmacist should be required to affix the label to the prescription container. (3) Regarding sec.291.33 (Operational Standards), commentors suggested that: (a) all pharmacies should not be required to have an area suitable for confidential patient counseling; (b) subsection (c)(1) should be modified to allow the pharmacist to use his or her professional judgement to determine the content of counseling and delete the reference to minimum; (c) "techniques for self-monitoring of drug therapy" as specified in the OBRA '90 language should be added to the list in subsection (c)(1)(B); (d) subsection (c)(1)(B) should be modified to insert the words "to the patient" between "dispensed" and "by the pharmacy"; (e) subsection (c)(1)(B) be modified to not require that written information be provided; (f) subsection (c)(1)(B) be modified to not require written information but allow use of written information, "when deemed appropriate by the pharmacist"; and (g) subsection (c)(1)(B) be modified to delay requiring written information until January 1, 1994. The Agency agrees with the suggestions made in (b), (c), and (d) and partially agrees with the suggestions made in (f) and (g). The proposed language has been amended to reflect this agreement. The Agency disagrees with the suggestions in (a) and (e). The Agency believes that an area suitable for confidential patient counseling is necessary for pharmacists to effectively counsel their patients. The Agency also believes that the most effective method of presenting information to the patient is to orally tell the patient about the drug or device and to reinforce this oral counseling with written information. However, the proposed rules have been amended to allow pharmacies nine months to implement the provision to provide written information for patients who come into the pharmacy. Written information will be immediately required to be included with prescriptions that are delivered to the patient's residence. (4) Regarding sec.291.34 (Records), commentors suggested that: (a) subsection 291.34(c) exceeds the federal mandate and implementation should be delayed until 1994; (b) subsection 291.34(c)(1) should be modified to delete the words "all pharmacies" and replace with "the individual pharmacy"; (c) the word "year" in sec.291.34(c)(2) and (4) should be clarified by replacing with "12-month period"; (d) review of patient history should be required for 180 days only, not one year; (e) a phase-in period for sec.291.34(c)(3)(E) and (F) should be allowed; (f) sec.291.34(c)(3)(G) should be deleted "since this is not mandated under OBRA and appears to be simply an unnecessary addition of details regarding specifics for a particular type of record system"; (g) implementation of sec.291.34(c)(4) should be delayed until January 1, 1994; and (h) a new sec.291.34(c)(5) should be added as follows: "Nothing in this subparagraph shall be construed as requiring a pharmacist to obtain, record, and maintain patient medication records when a patient or patient's agent refuses to provide the necessary information for such patient medication records." The Agency agrees or partially agrees with the suggestions made in (b), (c), and (h) and the proposed language has been amended to reflect this agreement. The Agency disagrees with the suggestions in (a), (e), (f), and (g). Each of these comments either suggest a delay in implementation of these proposed sections or suggest that the proposed sections exceed the requirements of the Federal requirements of OBRA. The Agency believes that these sections are mandated in the OBRA legislation and thus, does not believe that a delay in implementation is possible. The Agency also disagrees with the suggestion in (d) to require review of medication records for 180 days rather than one year. The agency believes that the one-year requirement will result in a better review of records for possible drug-drug interactions. However, the agency will continue to monitor this requirement and if this appears to be overburdensome will consider modification of this portion of the rules in the future. Comments were received from the following groups: Texas Federation of Drug Stores; Texas Pharmaceutical Association; and Texas Society of Hospital Pharmacists. Each of these groups generally supported the intent and concepts of pharmacist/patient counseling and drug regimen review as proposed. However, each of the groups had specific comments about certain sections of the rules and made recommendations for changes in these sections. The amendments are adopted under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1), sec.17, which gives the Board the authority to specify minimum standards for drug storage, maintenance of prescription drug records, and procedures for the delivery, dispensing in a suitable container appropriately labeled, or providing of prescription drugs or devices within the practice of pharmacy. sec.291.31. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Confidential health information-Any health related information maintained by the pharmacy in the patient's records, is privileged and may be released only to: (A) the patient, or as the patient directs; (B) those health care professionals where, in the pharmacist's professional judgment, such release is necessary to protect the patient's health and well being; or (C) other such persons or governmental agencies authorized by law to receive such confidential information. New prescription drug order-A prescription drug order for a drug not previously taken by the patient. Patient counseling -Communication by the pharmacist of information to the patient or patient's agent, in order to improve therapy by ensuring proper use of drugs and devices. Prospective drug review-A review of the patient's medication record and prescription drug order prior to dispensing. sec.291.32. Personnel. (a) Pharmacist-in-charge. (1) (No change.) (2) Responsibilities. The pharmacist-in-charge shall have the responsibility for, at a minimum, the following: (A)-(B) (No change.) (C) assuring that a pharmacist communicates to the patient or the patient's agent information about the prescription drug or device which in the exercise of the pharmacist's professional judgement, the pharmacist deems significant as specified in sec.291.33(c) of this title (relating to Operational Standards); (D) assuring that a pharmacist communicates to the patient or the patient's agent on their request, information concerning any prescription drugs dispensed to the patient by the pharmacy; (E) assuring that a reasonable effort is made to obtain, record, and maintain patient medication records; (F) education and training of pharmacy supportive personnel; (G) establishment of policies for procurement of prescription drugs and devices and other products dispensed from the Class A pharmacy; (H) disposal and distribution of drugs from the Class A pharmacy; (I) bulk compounding of drugs; (J) storage of all materials, including drugs, chemicals, and biologicals; (K) maintaining records of all transactions of the Class A pharmacy necessary to maintain accurate control over and accountability for all pharmaceutical materials required by applicable state and federal laws and sections; (L) establishment and maintenance of effective controls against the theft or diversion of prescription drugs, and records for such drugs; (M) maintenance of records in a data processing system such that the data processing system is in compliance with Class A (Community) Pharmacy requirements; and (N) legal operation of the pharmacy, including meeting all inspection and other requirements of all state and federal laws or sections governing the practice of pharmacy. (b) Pharmacists. (1) (No change.) (2) Duties. Duties which may only be performed by a pharmacist are as follows: (A)-(C) (No change.) (D) interpreting patient medication records; (E)-(F) (No change.) (G) affixing the label to the prescription container and performing the final check of the dispensed prescription before delivery to the patient; (H) communicating to the patient or patient's agent information about the prescription drug or device which in the exercise of the pharmacist's professional judgement, the pharmacist deems significant, as specified in sec.291.33(c) of this title; (I) communicating to the patient or the patient's agent on his or her request, information concerning any prescription drugs dispensed to the patient by the pharmacy; and (J) assuring that a reasonable effort is made to obtain, record, and maintain patient medication records. (c)-(d) (No change.) sec.291.33. Operational Standards. (a) (No change.) (b) Environment. (1) General requirements. (A)-(C) (No change.) (D) A Class A pharmacy initially licensed after June 1, 1989, shall contain an area which is suitable for confidential patient counseling and beginning January 1, 1995, all Class A pharmacies shall contain an area which is suitable for confidential patient counseling; (E)-(F) (No change.) (2) (No change.) (c) Prescription dispensing and delivery. (1) Patient counseling and provision of drug information. (A) To optimize drug therapy, a pharmacist shall communicate to the patient or the patient's agent, information about the prescription drug or device which in the exercise of the pharmacist's professional judgement the pharmacist deems significant, such as the following: (i) the name and description of the drug or device; (ii) dosage form, dosage, route of administration, and duration of drug therapy; (iii) special directions and precautions for preparation, administration, and use by the patient; (iv) common severe side or adverse effects or interactions and therapeutic contraindications that may be encountered, including their avoidance, and the action required if they occur; (v) techniques for self monitoring of drug therapy; (vi) proper storage; (vii) refill information; and (viii) action to be taken in the event of a missed dose. (B) Such communication: (i) shall be provided with each new prescription drug order, and if the pharmacist deems appropriate, with prescription drug order refills; (ii) shall be provided for any prescription drug order dispensed by the pharmacy on the request of the patient or patient's agent; (iii) shall be communicated orally in person unless the patient or patient's agent is not at the pharmacy or a specific communication barrier prohibits such oral communication; and (iv) may be reinforced with written information when deemed appropriate by the pharmacist. Beginning September 1, 1993, the communication shall be reinforced with written information. (C) Nothing in this subparagraph shall be construed as requiring a pharmacist to provide consultation when a patient or patient's agent refuses such consultation. The pharmacist shall document such refusal for consultation. (D) In addition to the requirements of subparagraphs (A)-(C) of this paragraph, if a prescription drug order is delivered to the patient at the pharmacy the following is applicable. (i) So that a patient will have access to information concerning his or her prescription, a prescription may not be delivered to a patient unless a pharmacist is in the pharmacy, except as provided in clause (ii) of this subparagraph. (ii) An agent of the pharmacist may deliver a prescription drug order to the patient or his or her agent during short periods of time when a pharmacist is absent from the pharmacy, provided the short periods of time do not exceed two hours, and provided a record of the delivery is maintained containing the following information: (I)-(V) (No change.) (iii) Any prescription delivered to a patient when a pharmacist is not in the pharmacy must meet the requirements described in subparagraph (E) of this paragraph. (iv) A Class A pharmacy shall make available for use by the public, a current or updated edition of the United States Pharmacopeia Dispensing Information, Volume II (Advice to the Patient), or, another source of such information, such as patient information leaflets. (E) In addition to the requirements of subparagraphs (A)-(C) of this paragraph, if a prescription drug order is delivered to the patient or his or her agent at the patient's or other designated location, the following is applicable. (i) The information specified in subparagraph (A) of this paragraph shall be delivered with the dispensed prescription in writing. (ii) If prescriptions are routinely delivered outside the area covered by the pharmacy's local telephone service, the pharmacy shall provide a toll-free telephone line which is answered during normal business hours to enable communication between the patient and a pharmacist. (iii) The pharmacist shall place on the prescription container or on a separate sheet delivered with the prescription container in both English and Spanish the local and if applicable, toll-free telephone number of the pharmacy and the statement: "Written information about this prescription has been provided for you. Please read this information before you take the medication. If you have questions concerning this prescription, a pharmacist is available during normal business hours to answer these questions." (F) The provisions of this paragraph do not apply to patients in facilities where drugs are administered to patients by a person required to do so by the laws of the state (i.e., nursing homes). (2) Prospective drug review. (A) For the purpose of promoting therapeutic appropriateness, a pharmacist shall, at the time of dispensing a prescription drug order, review the patient's medication record. Such review shall at a minimum identify clinically significant: (i) inappropriate drug utilization; (ii) therapeutic duplication; (iii) drug-disease contraindications; (iv) drug-drug interactions; (v) incorrect drug dosage or duration of drug treatment; (vi) drug-allergy interactions; and (vii) clinical abuse/misuse. (B) Upon identifying any clinically significant conditions, situations, or items listed in subparagraph (A) of this paragraph, the pharmacist shall take appropriate steps to avoid or resolve the problem including consultation with the prescribing practitioner. (3) Prescription containers. (A)-(C) (No change.) (4) Labeling. At the time of delivery of the drug, the dispensing container shall bear a label with at least the following information: (A)-(M) (No change.) (d)-(h) (No change.) sec.291.34. Records. (a) (No change.) (b) Prescriptions. (1)-(2) (No change.) (3) Verbal prescription drug orders. (A)-(B) (No change.) (C) If a prescription drug order is transmitted to a pharmacist verbally, the pharmacist shall note any substitution instructions by the practitioner or practitioner's agent on the file copy of the prescription drug order. Such file copy may follow the two-line format indicated in paragraph (2)(B) of this subsection, or any other format that clearly indicates the substitution instructions. (D)-(E) (No change.) (4) (No change.) (5) Authorization for substitution. (A)-(D) (No change.) (6)-(8) (No change.) (c) Patient medication records. (1) A patient medication record system shall be maintained by the pharmacy for patients to whom prescription drug orders are dispensed. (2) The patient medication record system shall provide for the immediate retrieval of information for the previous 12 months which is necessary for the dispensing pharmacist to conduct a prospective drug review at the time a prescription drug order is presented for dispensing. (3) The pharmacist-in-charge shall assure that a reasonable effort is made to obtain and record in the patient medication record at least the following information: (A) full name of the patient for whom the drug is prescribed; (B) address and telephone number of the patient; (C) patient's age or date of birth; (D) patient's gender; (E) any known allergies, drug reactions, idiosyncrasies, and chronic conditions or disease states of the patient and the identity of any other drugs currently being used by the patient which may relate to prospective drug review; (F) pharmacist's comments relevant to the individual's drug therapy, including any other information unique to the specific patient or drug; and (G) a list of all prescription drug orders dispensed (new and refill) to the patient by the pharmacy during the last two years. Such list shall contain the following information: (i) date dispensed; (ii) name, strength, and quantity of the drug dispensed; (iii) prescribing practitioner's name; (iv) unique identification number of the prescription; and (v) name or initials of the dispensing pharmacists. (4) A patient medication record shall be maintained in the pharmacy for two years. If patient medication records are maintained in a data processing system, all of the information specified in this subsection shall be maintained in a retrievable form for two years and information for the previous 12 months shall be maintained on-line. (5) Nothing in this paragraph shall be construed as requiring a pharmacist to obtain, record, and maintain patient information other than prescription drug order information when a patient or patient's agent refuses to provide the necessary information for such patient medication records. (d) Prescription drug order records maintained in a manual system. (1)-(4) (No change.) (e) Prescription drug order records maintained in a data processing system. (1)-(5) (No change.) (f) Limitation to one type of record keeping system. When filing prescription drug order information a pharmacy may use only one of the two systems described in subsection (d) or (e) of this section. (g) Distribution of controlled substances to another registrant. A pharmacy, may distribute controlled substances to a practitioner, another pharmacy or other registrant, without being registered to distribute, under the following conditions: (1)-(4) (No change.) (h) Other records. Other records to be maintained by a pharmacy: (1)-(10) (No change.) (i) Permission to maintain central records. Any pharmacy that uses a centralized recordkeeping system for invoices and financial data shall comply with the following procedures. (1)-(4) (No change.) (j) Ownership of pharmacy records. For the purposes of these sections, a pharmacy licensed under the Act is the only entity which may legally own and maintain prescription drug records. (k) Confidentiality. A pharmacist shall provide adequate security of prescription drug order and patient medication records to prevent indiscriminate or unauthorized access to confidential health information. sec.291.36. Class A Pharmacies Compounding Sterile Pharmaceuticals. (a) (No change.) (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1)-(8) (No change.) (9) Confidential health information-Any health related information maintained by the pharmacy in the patient's records, is privileged and may be released only to: (A) the patient, or as the patient directs; (B) those health care professionals where, in the pharmacist's professional judgment, such release is necessary to protect the patient's health and well being; or (C) other such persons or governmental agencies authorized by law to receive such confidential information. (10) Controlled substance-A drug, immediate precursor, or other substance listed in Schedules I-V or Penalty Groups 1-4 of the Texas Controlled Substances Act, as amended, or a drug, immediate precursor, or other substance included in Schedule I, II, III, IV, or V of the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended (Public Law 91-513). (11) Cytotoxic-A pharmaceutical that has the capability of killing living cells. (12) Dangerous drug-Any drug or device that is not included in Penalty Groups 1-4 of the Controlled Substances Act and that is unsafe for self-medication or any drug or device that bears or is required to bear the legend: (A)-(B) (No change.) (13) Deliver or delivery-The actual, constructive, or attempted transfer of a prescription drug or device or controlled substance from one person to another, whether or not for a consideration. (14) Designated agent-An individual under the supervision of a practitioner, designated by the practitioner, and for whom the practitioner assumes legal responsibility, who communicates the practitioner's instructions to the pharmacist. (15) Device-An instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including any component part or accessory, that is required under federal or state law to be ordered or prescribed by a practitioner. (16) Dispense-Preparing, packaging, compounding, or labeling for delivery a prescription drug or device in the course of professional practice to an ultimate user or his agent by or pursuant to the lawful order of a practitioner. (17) Distribute-The delivery of a prescription drug or device other than by administering or dispensing. (18) Downtime-Period of time during which a data processing system is not operable. (19) Enteral-Within or by the way of the intestine. (20) Facsimile (FAX) prescription drug order-A prescription drug order which is transmitted by an electronic device which sends an exact image to the receiver (pharmacy) over telephone lines. (21) Full-time pharmacist-A pharmacist who works in a pharmacy from 30 to 40 hours per week or if the pharmacy is open less than 60 hours per week, one-half of the time the pharmacy is open. (22) Hard-copy-A physical document that is readable without the use of a special device (i.e., cathode ray tube (CRT), microfiche reader, etc). (23) Medical Practice Act-The Texas Medical Practice Act, Texas Civil Statutes, Article 4495b, as amended. (24) New prescription drug order-A prescription drug order for a drug not previously taken by the patient. (25) Original prescription-The: (A)-(C) (No change.) (26) Parenteral-Sterile preparations of drugs for injection through one or more layers of the skin. (27) Part-time pharmacist-A pharmacist who works less than full-time. (28) Patient counseling-Communication by the pharmacist of information to the patient or patient's agent, in order to improve therapy by ensuring proper use of drugs and devices. (29) Pharmacist-in-charge-The pharmacist designated on a pharmacy license as the pharmacist who has the authority or responsibility for a pharmacy's compliance with laws and rules pertaining to the practice of pharmacy. (30) Physician assistant-A physician assistant recognized by the Texas State Board of Medical Examiners as having the specialized education and training required under the Medical Practice Act, sec.3.06(d), and issued an identification number by the Texas State Board of Medical Examiners. (31) Practitioner- (A)-(D) (No change.) (32) Prepackaging-The act of repackaging and relabeling quantities of drug products from a manufacturer's original commercial container into a prescription container for dispensing by a pharmacist to the ultimate consumer. (33) Prescription drug- (A)-(C) (No change.) (34) Prescription drug order- (A)-(B) (No change.) (35) Registered nurse-A registered nurse recognized by the Texas State Board of Nurse Examiners as having the specialized education and training necessary to carry out a prescription drug order and issued an identification number by the Texas State Board of Nurse Examiners. (36) Sterile pharmaceutical-A dosage form free from living micro-organisms. (37) Supportive personnel-Those individuals utilized in pharmacies whose responsibility it shall be to provide nonjudgmental technical services concerned with the preparation and distribution of drugs under the direct supervision of and responsible to a pharmacist. (38) Texas Controlled Substances Act-The Texas Controlled Substances Act, Health and Safety Code, Chapter 481, as amended. (c) Personnel. (1) Pharmacist-in-charge. (A) (No change.) (B) Responsibilities. The pharmacist-in-charge shall have the responsibility for, at a minimum, the following: (i)-(ii) (No change.) (iii) assuring that a pharmacist communicates to the patient or the patient's agent information about the prescription drug or device which in the exercise of the pharmacist's professional judgement, the pharmacist deems significant as specified in subsection (c)(3) of this section; (iv) assuring that a pharmacist communicates to the patient or the patient's agent on his or her request, information concerning any prescription drugs dispensed to the patient by the pharmacy; (v) assuring that a reasonable effort is made to obtain, record, and maintain patient medication records; (vi) education and training of pharmacy supportive personnel; (vii) establishment of policies for procurement of prescription drugs and devices and other products dispensed from the Class A pharmacy; (viii) disposal and distribution of drugs from the Class A pharmacy; (ix) bulk compounding of drugs; (x) preparation and sterilization of sterile pharmaceuticals compounded within the pharmacy; (xi) admixture of sterile pharmaceuticals, including education and training of personnel concerning incompatibility; (xii) participation in those aspects of the patient care evaluation program relating to pharmaceutical material utilization and effectiveness; (xiii) implementation of the policies and decisions relating to pharmaceutical services; (xiv) storage of all materials, including drugs, chemicals, and biologicals; (xv) maintaining records of all transactions of the Class A pharmacy necessary to maintain accurate control over and accountability for all pharmaceutical materials required by applicable state and federal laws and rules; (xvi) establishment and maintenance of effective controls against the theft or diversion of prescription drugs, and records for such drugs; (xvii) maintenance of records in a data processing system such that the data processing system is in compliance with this section; (xviii) assuring that the pharmacy has a system to dispose of cytotoxic/biohazardous waste in a manner so as not to endanger the public health; and (xix) legal operation of the pharmacy, including meeting all inspection and other requirements of all state and federal laws or rules governing the practice of pharmacy. (2) Pharmacists. (A) (No change.) (B) Duties. Duties which may only be performed by a pharmacist are as follows: (i)-(iii) (No change.) (iv) interpreting patient medication records; (v) affixing the label to the prescription container and performing the final check of the dispensed prescription before delivery to the patient; (vi) communicating to the patient or patient's agent information about the prescription drug or device which in the exercise of the pharmacist's professional judgement, the pharmacist deems significant as specified in subsection (c)(3) of this section; (vii) communicating to the patient or the patient's agent on his or her request, information concerning any prescription drugs dispensed to the patient by the pharmacy; and (viii) assuring that a reasonable effort is made to obtain, record, and maintain patient medication records. (C) (No change.) (3) -(4) (No change.) (d) Operational standards. (1) (No change.) (2) Environment. (A) General requirements. (i) -(vi) (No change.) (vii) If prescription drug orders are delivered to the patient at the pharmacy, beginning January 1, 1995, the pharmacy shall contain an area which is suitable for confidential patient counseling, (B)-(C) (No change.) (3) Prescription dispensing and delivery. (A) Patient counseling and provision of drug information. (i) To optimize drug therapy, a pharmacist shall communicate to the patient or the patient's agent, information about the prescription drug or device which in the exercise of the pharmacist's professional judgement the pharmacist deems significant, such as the following: (I) the name and description of the drug or device; (II) dosage form, dosage, route of administration, and duration of drug therapy; (III) special directions and precautions for preparation, administration, and use by the patient; (IV) common severe side or adverse effects or interactions and therapeutic contraindications that may be encountered, including their avoidance, and the action required if they occur; (V) techniques for self monitoring of drug therapy; (VI) proper storage; (VII) refill information; and (VIII) action to be taken in the event of a missed dose. (ii) Such communication: (I) shall be provided with each new prescription drug order, and if the pharmacist deems appropriate, with prescription drug order refills; (II) shall be provided for any prescription drug order dispensed by the pharmacy on the request of the patient or patient's agent; (III) shall be communicated orally in person unless the patient or patient's agent is not at the pharmacy or a specific communication barrier prohibits such oral communication; and (IV) may be reinforced with written information when deemed appropriate by the pharmacist. Beginning September 1, 1993, the communication shall be reinforced with written information. (iii) Nothing in this subparagraph shall be construed as requiring a pharmacist to provide consultation when a patient or patient's agent refuses such consultation. The pharmacist shall document such refusal for consultation. (iv) In addition to the requirements of clauses (i)-(iii) of this subparagraph, if a prescription drug order is delivered to the patient at the pharmacy, the following is applicable. (I) So that a patient will have access to information concerning his or her prescription, a prescription may not be delivered to a patient unless a pharmacist is in the pharmacy, except as provided in subclause (II) of this clause. (II) An agent of the pharmacist may deliver a prescription drug order to the patient or his or her agent during short periods of time when a pharmacist is absent from the pharmacy, provided the short periods of time do not exceed two hours, and provided a record of the delivery is maintained containing the following information: (-a-)-(-e-) (No change.) (III) Any prescription delivered to a patient when a pharmacist is not in the pharmacy must meet the requirements described in clause (v) of this subparagraph. (IV) A Class A pharmacy compounding sterile pharmaceuticals that delivers prescriptions to patients or their agents on-site shall make available for use by the public, a current or updated edition of the United States Pharmacopeia Dispensing Information, Volume II (Advice to the Patient), or, another source of such information, such as patient information leaflets. (v) In addition to the requirements of clauses (i)-(iii) of this subparagraph, if a prescription drug order is delivered to the patient or his or her agent at the patient's residence or other designated location, the following is applicable: (I) the information specified in clause (i) of this subparagraph shall be delivered with the dispensed prescription in writing; (II) if prescriptions are routinely delivered outside the area covered by the pharmacy's local telephone service, the pharmacy shall provide a toll-free telephone line which is answered during normal business hours to enable communication between the patient and a pharmacist; (III) the pharmacist shall place on the prescription container or on a separate sheet delivered with the prescription container in both English and Spanish the local and if applicable, toll-free telephone number of the pharmacy and the statement: "Written information about this prescription has been provided for you. Please read this information before you take the medication. If you have questions concerning this prescription, a pharmacist is available during normal business hours to answer these questions;" (IV) the pharmacist-in-charge shall assure that: (-a-)-(-b-) (No change.) (vi) This provisions of this subparagraph do not apply to patients in facilities where drugs are administered to patients by a person authorized to do so by the laws of the state (i.e., nursing homes). (B)-(C) (No change.) (4)-(6) (No change.) (7) Patient medication records. A patient medication record shall be maintained for each patient of the pharmacy. The PMR shall contain at a minimum the following: (A) patient information: (i) patient's full name, gender, and date of birth; (ii)-(iv) (No change.) (v) other drugs the patient is receiving; (vi) (No change.) (vii) pharmacist's comments relevant to the individual's drug therapy, including any other information unique to the specific patient or drug; and (viii) a list of all prescription drug orders dispensed (new and refill) to the patient by the pharmacy during the last two years. Such list shall contain the following information: (I) date dispensed; (II) name, strength, and quantity of the drug dispensed; (III) prescribing practitioner's name; (IV) unique identification number of the prescription; and (V) name or initials of the dispensing pharmacist. (B) (No change.) (C) Nothing in this paragraph shall be construed as requiring a pharmacist to obtain, record, and maintain patient information other than prescription drug order information when a patient or patient's agent refuses to provide the necessary information for such patient medication records. (8)-(10) (No change.) (e) Records. (1)-(10) (No change.) (11) Confidentiality. A pharmacist shall provide adequate security of prescription drug order and patient medication records to prevent indiscriminate or unauthorized access to confidential health information. (f) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1992. TRD-9216014 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: January 1, 1993 Proposal publication date: August 25, 1992 For further information, please call: (512) 832-0661 Part XVIII. Texas State Board of Podiatry Examiners Chapter 371. Examinations 22 TAC sec.sec.371.3, 371.6, 371.9, 371.14 The Texas State Board of Podiatry Examiners adopts amendments to sec.sec.371. 3, 371.6, 371.9, and 371.14, concerning examinations, without changes to the proposed text as published in the November 10, 1992, issue of the Texas Register (17 TexReg 7837). The justification for the adoption of the amendments is to better clarify the requirements for taking the examination. The sections will function by instructing the applicants as to what requirements he/she must meet in order to take the examination. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide the State Board of Podiatry Examiners with the authority to adopt all reasonable and necessary rules, regulations, and by-laws not consistent with the law regulating the practice of podiatry, the laws of this state, or of the United States, to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 14, 1992. TRD-9216782 Janie Alonzo Certifying Official, Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: January 11, 1993 Proposal publication date: November 10, 1992 For further information, please call: (512) 794-0145 Chapter 373. Identification of Practice 22 TAC sec.373.2 The Texas State Board of Podiatry Examiners adopts an amendment to sec.373. 2, concerning practitioner identification, without changes to the proposed text as published in the November 10, 1992, issue of the Texas Register (17 TexReg 7838). The justification for the adoption of the amendment to this section is to make professional appelations consistent with the statute. The section will function by instructing the podiatrists what professional designations he may use in his advertisements. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide the State Board of Podiatry Examiners with the authority to adopt all reasonable and necessary rules, regulations, and by-laws not consistent with the law regulating the practice of podiatry, the laws of this state, or of the United States, to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 14, 1992. TRD-9216783 Janie Alonzo Certifying Official, Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: January 11, 1993 Proposal publication date: November 10, 1992 For further information, please call: (512) 794-0145 Chapter 377. Procedures Governing Grievances, Hearings, and Appeals 22 TAC sec.377.1, sec.377.43 The Texas State Board of Podiatry Examiners adopts amendments to sec.377.1 and sec.377.43, concerning procedures governing grievances, hearings, and appeals, without changes to the proposed text as published in the November 10, 1992, issue of the Texas Register (17 TexReg 7839). The justification for the adoption of the amendments is to provide better clarification of the rules. The sections will function by advising the podiatrist of the procedures that take place regarding grievances, hearings, and appeals. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide the State Board of Podiatry Examiners with the authority to adopt all reasonable and necessary rules, regulations, and by-laws not consistent with the law regulating the practice of podiatry, the laws of this state, or of the United States, to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 14, 1992. TRD-9216784 Janie Alonzo Certifying Official, Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: January 11, 1993 Proposal publication date: November 10, 1992 For further information, please call: (512) 794-0145 22 TAC sec.382.1 The Texas State Board of Podiatry Examiners adopts an amendment to sec.382. 1 concerning registration of podiatry radiologic technologists, without changes to the proposed text as published in the November 10, 1992, issue of the Texas Register (17 TexReg 7839). The justification for the adoption of the amendment is to recover all the agency's expenses for registering the applicants. The section will function by allowing the agency to recover costs of registering radiologic technologists. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide the State Board of Podiatry Examiners with the authority to adopt all reasonable and necessary rules, regulations, and by-laws not consistent with the law regulating the practice of podiatry, the laws of this state, or of the United States, to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 14, 1992. TRD-9216785 Janie Alonzo Certifying Official, Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: January 11, 1993 Proposal publication date: November 10, 1992 For further information, please call: (512) 794-0145 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part IX. Texas Water Commission Chapter 281. Applications Processing 31 TAC sec.sec.281.2, 281.3, 281.5, 281.17, 281.18, 281.21 The Texas Water Commission (TWC) adopts amendments to sec. sec.281.2, 281.3, 281.5, 281.17, 281.18, and 281.21, concerning the processing of applications for new, amended or renewed municipal solid waste permits, without changes to the proposed text as published in the October 30, 1992, issue of the Texas Register (17 TexReg 7646). The replacement of these sections is a result of Senate Bill 2, First Called Session, 72nd Legislature, which transferred the jurisdiction over municipal solid waste management from the Texas Department of Health (TDH) to the TWC effective March 1, 1992. The TWC proposes to add these amendments to the existing Chapter 281 to allow the orderly processing of applications for new, amended or renewed municipal solid waste permits. No comments were received regarding adoption of the amendments. The amended sections are adopted under the Texas Water Code sec.5.103 and sec.26.011, which gives the Texas Water Commission the authority to adopt any rules necessary to carry out its powers, duties and policies and to protect water quality in the state. These sections are also adopted under the Texas Solid Waste Disposal Act, Texas Health and Safety Code Annotated, Chapter 361 (Vernon) which gives the Texas Water Commission the authority to regulate industrial, hazardous and municipal solid wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the 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 December 17, 1992. TRD-9216742 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: January 7, 1993 Proposal publication date: October 30, 1992 For further information, please call: (512) 908-2059 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part VII. Texas Commission on Law Enforcement Officer Standards and Education Chapter 211. Administration Division Substantive Rules 37 TAC sec.211.85 The Texas Commission on Law Enforcement Officer Standards and Education adopts an amendment to sec.211.85, concerning proficiency certificates for jailers, with changes to the proposed text as published in the July 21, 1992, issue of the Texas Register (17 TexReg 5076). The amendment to this Section was adopted at the December 9, 1992, meeting of the Commission, as Final Order 92-5. The amendment to sec.211.85 as adopted adds the provision that the jailer must attend training related to the management and operation of a correctional facility (including county jails) and related courses as determined by the commission. The Section as adopted also provides that the courses for the certificate will include crime scene search and investigation in jail setting; inmate rights and privileges; interpersonal communications, in addition to other courses. The subsections were relettered in order to conform with the format. In addition to the comments received at the Commission meeting, which were extensive and of record, regarding the proposed amendments to sec.211.85, the Commission provides the following responses to the wrtten comments and a summary of the verbal. The Commission was requested by an individual representing the Houston Police Department Training Academy, who spoke, on behalf of the committee appointed by Sheriff Joe King, October 1990, and provided the Commissioners with a draft of the modifications to amendment setting out the proposed changes of the Committee. The Commission provides the following response. For now the Commission believes that not changing the training points as contained in the proposed amendment adopted by the Commissioners, will reduce the confusion caused by trying to maintain two different point systems. In addition, maintaining the same point system is more effective and efficient to administer. The Commission finds that a standardized point system is fair, since many of the licensees are both jailers and peace officers. The Commission anticipates that this program will increase the availability of correctional facility management and operational courses and related courses. The Commission incorporated the additional comments regarding course content. A written comment was received regarding the Commission's use of the terms "jailer" or "county jailer," as opposed to "correctional officer" or "detention officer." The term "jailer" is a defined term in the Government Code, sec.415.001, and pertains to only county jailers appointed by the sheriff pursuant to the Local Government Code, sec.85.005. The definition of "jailer" in the Commission's rules do reference the term "county correctional officer." It should also be noted that the Commission does not have jurisdiction over either the city, state, or federal correctional personnel, so the designation of county jailer also reduces public's confusion in this matter. The amendment is proposed under the Texas Government Code, Chapter 415, sec.sec.415.010(1), 415.32, and 415.062, which provides the Texas Commission on Law Enforcement Officer Standards and Education with the authority to pass rules for the administration of Chapter 415, and Texas Civil Statutes, Article 6252- 13a, which taken together establish the procedures for the rulemaking requirements for the Commission. sec.211.85. Proficiency Certificates. (a)-(c) (No change.) (d) A permanent jailer license holder who is reported to the commission as currently appointed as a jailer may, if qualified, be issued one of the following proficiency certificates: (1) basic jailer; (2) intermediate jailer; or (3) advanced jailer. (e)-(j) (No change.) (k) To qualify for an intermediate jailer certificate, the applicant: (1) must attend training related to the management and operation of a correctional facility (including county jails) and related courses as determined by the commission; (2) must have one of the following combinations of points and jailer experience: (A) 20 points and six years' experience; (B) 40 points and four years' experience; (C) 60 points or an associate's degree and two years' experience; or (D) 120 points or a bachelor's degree and one year experience; and (3) if the basic jailer was issued or qualified for on or after March 1, 1993, must also complete an intermediate proficiency course which must: (A) be approved by the commission; (B) be taught in conformity with the instructor guides provided by the commission; (C) require passing a final examination; and (D) consist of the following subjects, each credited with three points upon successful completion: suicide detection and prevention; use of force in jail setting; crime scene search and investigation in jail setting; inmate rights and privileges; interpersonal communications; or as otherwise required by the commission. (l) To qualify for an advanced jailer certificate, the applicant must have already qualified for an intermediate jailer certificate and have either: (1) 40 points and eight years' experience; (2) 60 points or an associate's degree and six years' experience; (3) 120 points or a bachelor's degree and four years' experience; or (4) a post-graduate degree and two years' experience. (m) To qualify for a crime prevention inspector or a homeowners insurance inspector certificate, the applicant must meet the requirements found in sec.211.106 of this title (relating to Crime Prevention and Homeowners Insurance Inspector Certificates and Inspection Standards). (n) To qualify for an investigative hypnotist certificate, the applicant must meet the requirements found in sec.211.103 of this title (relating to Investigative Hypnosis by a Peace Officer). (o) To qualify for a drug recognition expert (DRE) certificate or standardized field sobriety testing (SFST) certificate, the applicant must meet any training, testing, certification, recertification, or other standards that may be required by the commission in the discretion of the executive director. (p) Any person, if qualified, may be issued an emergency telecommunications operator's certificate or emergency telecommunications technician certificate. The applicant must meet any training, testing, certification, recertification, or other standards that may be required by the commission in the discretion of the executive director. (q) To qualify for the issuance of a certificate, the commission may require submission of an application by an individual or agency on a completed commission form, including any documentation requested. (r) A license holder must return any cancelled certificate to the commission. The commission may cancel any certificate if the recipient was not qualified for its issue and it was issued: (1)-(2) (No change.) (s) In this section, the term "experience" means the actual number of months served in the appropriate capacity in law enforcement, the term "points" means training or education points, and the term "post-graduate degree" means either a master's degree, a doctoral degree, or other similar degree above the level of a bachelor's degree. (1)-(4) (No change.) (t) The effective date of this section is February 1, 1989; the effective date of subsections (a)(6) and (o) is February 1, 1990; the effective date of subsections (a) and (o) of this section as amended, is February 1, 1991; the effective date of subsection (p) of this section as amended is September 1, 1991; the effective date of subsection (d) of this section as amended is March 1, 1993; the effective date of subsections (k) and (l) is March 1, 1993. 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-9216736 Johanna McCully-Bonner General Counsel Texas Commission on Law Enforcement Officer Standards and Education Effective date: January 7, 1993 Proposal publication date: July 21, 1992 For further information, please call: (512) 406-3619 37 TAC sec.211.100 The Texas Commission on Law Enforcement Officer Standards and Education adopts an amendment to sec.211.100, concerning the requirements of continuing education for constables and their deputies, without changes to the proposed text as published in the September 22, 1992, issue of the Texas Register (17 TexReg 6543). The amendment to this Section was adopted at the December 9, 1992, meeting of the Commission. Section 211.100 was adopted as Final Order 92-7. The amendment is adopted under the Texas Government Code, Chapter 415, sec.sec.415.010(1), 415.32, 415.034, 415.0345, which provides the Texas Commission on Law Enforcement Officer Standards and Education with the authority to pass rules for the administration of Chapter 415, and Texas Civil Statutes, Article 6252-13a, which taken together establish the procedures for the rule making requirements for the 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-9216735 Johanna McCully-Bonner General Counsel Texas Commission on Law Enforcement Office Standards and Education Effective date: January 7, 1993 Proposal publication date: September 22, 1992 For further information, please call: (512) 406-3619 TITLE 40. Social Services and Assistance Part I. Texas Department of Human Services Chapter 29. Purchased Health Services Subchapter C. Rehabilitative Services for Persons with Mental Illness 40 TAC sec.29.206 The Texas Department of Human Services (DHS) adopts amendments to sec.29. 206 and sec.29.2306, without changes to the proposed text as published in the November 13, 1992, issue of the Texas Register (17 TexReg 7996). The justification for the amendments is to formalize and clarify current reimbursement practices. The amendments will function by providing a more accurate reflection of the way reimbursement rates are determined. No comments were received regarding adoption of the amendments. 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. 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 17, 1992. TRD-9216723 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: January 15, 1993 Proposal publication date: November 13, 1992 For further information, please call: (512) 450-3765 Subchapter X. Diagnostic Services for Persons with Potential of Mental Retardation 40 TAC sec.29.2306 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. 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 17, 1992. TRD-9216724 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: January 15, 1993 Proposal publication date: November 13, 1992 For further information, please call: (512) 450-3765 Chapter 31. Case Management Services Subchapter A. Program Requirements The Texas Department of Human Services (DHS) adopts amendments to sec.31. 11 and sec.31.205, without changes to the proposed text as published in the November 13, 1992, issue of the Texas Register (17 TexReg 7999). The justification for the amendments is to formalize and clarify current reimbursement practices. The amendments will function by providing a more accurate reflection of the way reimbursement rates are determined. No comments were received regarding adoption of the amendments. 40 TAC 31.11 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. 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 17, 1992. TRD-9216725 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: January 15, 1993 Proposal publication date: November 13, 1992 For further information, please call: (512) 450-3765 Subchapter C. Case Management for Persons with Chronic Mental Illness 40 TAC sec.31.205 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. 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 17, 1992. TRD-9216726 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: January 15, 1993 Proposal publication date: November 13, 1992 For further information, please call: (512) 450-3765 Chapter 48. Community Care for Aged and Disabled Client-managed Attendant Services 40 TAC sec.48.2613 The Texas Department of Human Services (DHS) adopts new sec.48.2613, with changes to the proposed text as published in the November 13, 1992, issue of the Texas Register (17 TexReg 8001). The justification for the new section is to add contracted provider requirements for the submission of annual cost reports, guidelines for allowable and unallowable costs, and provisions for audit desk reviews and onsite audits of cost reports. The new section will function by providing a more accurate reflection of the costs to deliver these contracted services. No comments were received regarding adoption of the section. DHS, however, has initiated a minor editorial change to sec.48.2613(b)(19)(EE). The new section 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.48.2613. Cost Reporting Guidelines for Client-managed Attendant Services. (a) The term contracted provider, when used in this section, shall have the following meaning, unless the context clearly indicates otherwise. An agency that has contracted with the Texas Department of Human Services (DHS) to provide the Community Care for Aged and Disabled (CCAD) Services that DHS has authorized for eligible clients. (b) Contracted providers must submit financial and statistical information at least annually on cost report forms provided by DHS or on facsimiles preapproved by DHS and formatted according to DHS specifications. Contract-specific reimbursement rates are determined through either the procurement or rate negotiation process with DHS staff and the contracted provider. The reimbursement rate is per hour of service. (1) Cost report due date. Contracted providers must submit cost reports to DHS by the due date stated in the cost report transmittal letter, which is usually 90 days following the receipt of the cost report forms. (2) Extension of due date. DHS may grant extensions of due dates for good cause. Good cause is defined as a situation that the provider could not reasonably be expected to control. Contracted providers must submit requests for extensions to DHS in writing before the cost report due date. Provider Reimbursement Department staff respond to requests within 10 workdays of receipt. (3) Reporting period. The contracted provider must prepare the cost report to reflect the activities of the contracted provider during its previous fiscal year. Cost reports may be required for other periods at the discretion of DHS. (4) Failure to file an acceptable cost report. If a contracted provider fails to file a cost report according to all applicable rules and instructions, DHS may withhold all provider payments until the contracted provider submits an acceptable cost report. (5) Accounting requirements. The contracted provider must ensure that financial and statistical information submitted in cost reports is based upon the accrual method of accounting, except for governmental institutions operated on the cash or modified accrual method of accounting. The contracted provider's treatment of any financial or statistical item must reflect the application of the generally accepted accounting principles (GAAP) approved by the American Institute of Certified Public Accountants (AICPA). (6) Allocation methods. If allocation of costs is necessary, contracted providers must use reasonable methods of allocation. DHS adjusts allocated costs if it considers the allocation method is unreasonable. The contracted provider must retain workpapers supporting allocations. (7) Cost report certification. Contracted providers must certify the accuracy of cost reports submitted to DHS in the format specified by DHS. Contracted providers may be liable for civil and/or criminal penalties in the case of misrepresented or falsified information. (8) Cost report supplements. DHS may require additional financial and statistical information other than the information contained in the cost report. (9) Review of cost reports. DHS staff review each cost report to ensure that all financial and statistical information submitted conforms to all applicable rules and instructions. The review of the cost report includes a desk audit. If a contracted provider fails to complete a cost report according to instructions or rules, DHS returns the cost report to the contracted provider for proper completion. DHS may require information other than that contained in the cost report to substantiate reported information. (10) Onsite audits. DHS may perform onsite audits on all contracted providers that participate in the program. DHS determines the frequency and nature of audits, but ensures that they are not less than that required by regulations relating to the administration of the program. Failure to allow DHS to perform an audit in sufficient detail to verify reported information may result in the withholding of provider payments. (11) Cost of out-of-state audits. When possible, the records necessary to verify information submitted to DHS on cost reports, including related-party transactions and other business activities engaged in by the provider, must be accessible to DHS audit staff in Texas. When records are not available to DHS audit staff within the state, the contracted provider must pay the costs for DHS staff to travel and review the records out-of-state. If a provider fails to reimburse DHS for these costs within 30 days of the request for payment, DHS may place a hold on the provider's vendor payments until the costs are paid in full. (12) Notification by regular mail. DHS notifies providers by regular mail of exclusions and adjustments to reported expenses made during desk reviews and onsite audits of cost reports. (A) DHS mails notices of desk-review exclusions and adjustments within 10 workdays after entering them in the cost-report data base. The notice consists of a one-page desk-review audit adjustment sheet that specifies the line-items on the cost report that have been adjusted or excluded, the amount of each adjustment or exclusion, and the principal reason for each adjustment or exclusion. (B) DHS mails each onsite audit report within 30 days after the final exit interview with the contracted provider. An exit interview is final when DHS audit staff have received, reviewed, and analyzed all documentation from the contracted provider pertinent to the scope of the audit. The onsite audit report consists of a multiple-page professional report prepared by DHS audit staff to enumerate the results of the onsite audit. Each onsite audit report includes a specification of cost-report line-items that have been adjusted or excluded, the amount of each adjustment or exclusion, and the principal reason for each adjustment or exclusion. (C) DHS mails onsite audit reports and notices of desk-review exclusions and adjustments to the addresses that providers have given to DHS as their standard mailing addresses. However, if a provider submits a written request for DHS to send an onsite audit report or a notice of desk-review exclusions and adjustments to another address, DHS must do so. (D) A provider may also submit a written request for DHS to provide additional information about exceptions and adjustments to the provider's cost reports, including citations of the laws or regulations that constitute the grounds for the exceptions and adjustments. DHS must provide the additional information in writing within 30 calendar days. (13) Access to records. Each contracted provider or its designated agent(s) must allow access to any and all records necessary to verify information submitted to DHS on cost reports. This requirement includes records pertaining to related-party transactions and other business activities engaged in by the contracted provider. If a contracted provider does not allow inspection of pertinent records within 30 days following written notice from DHS, a hold is placed on vendor payments until access to the records is allowed. If the provider continues to deny access to records, DHS may cancel the provider's contract. (14) Recordkeeping requirements. Contracted providers must maintain records according to the requirements stated in sec.69.202 of this title (relating to Contractors' Records). Contracted providers must ensure that records are accurate and sufficiently detailed to support the financial and statistical information contained in cost reports. If a provider fails to maintain adequate records to support the financial and statistical informa- tion reported in cost reports, DHS allows 90 days for the contracted provider to bring recordkeeping into compliance. If a provider fails to correct deficiencies within 90 days from the date of notification of the deficiency, DHS may cancel the provider's contract for services. (15) Amended cost report due dates. Contracted providers must submit cost reports to DHS in a manner prescribed by DHS. DHS accepts amended cost reports submitted on the request of the provider until 180 days after the due date of the cost report. (16) Exclusion of certain reported expenses. Contracted providers must ensure that all unallowable costs are eliminated from the cost report. DHS excludes any unallowable costs that are included in the cost report. (17) Projected costs. DHS projects allowable expenses per hour of service from each contracted provider's reporting period to the next rate period. DHS determines reasonable and appropriate economic adjusters to calculate the projected expenses. DHS also adjusts rates if new legislation, regulations, or economic factors affect costs. (18) Allowable costs. To be allowable under client-managed attendant services, costs must be: (A) necessary and reasonable for the proper and efficient administration of the program to deliver services for which DHS has contracted; (B) authorized or not prohibited under state or local laws or regulations; (C) consistent with any limitations or exclusions described in this section, federal or state laws, or other governing limitations as to types or amounts of cost items; (D) consistent with policies, regulations, and procedures that apply uniformly to both the Client-Managed Attendant Services Program and other activities of the organization of which the contracted provider is a part; (E) treated consistently using generally accepted accounting principles appropriate to the circumstances; (F) not allocable to or included as a cost of any other program in either the current or a prior period; and (G) the net of all applicable credits. (19) Definition of reasonableness. A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by an ordinarily prudent person in the conduct of competitive business. In determining the reasonableness of a given cost, DHS considers the following: (A) whether the cost is a type generally recognized as ordinary and necessary for the operation of the business or the performance under the contract; (B) the restraints or requirements imposed by generally accepted sound business practices, arm's length bargaining, federal and state laws and regulations, and contract terms and specifications; and (C) the action that a prudent person would take in the circumstances, considering his responsibilities to the public, the government, his employees, clients, shareholders, or members, and the fulfillment of the purpose for which the business was organized. (20) Unallowable costs. Unallowable costs are expenses incurred by a contracted provider which are not directly or indirectly related to the provision of contracted services according to applicable laws, rules, and standards. A contracted provider may expend funds on unallowable cost items, but those costs must not be included in the cost report and are not used in arriving at a contract-specific rate. The information contained in subparagraphs (A) through (JJ) of this paragraph is a general guide to the various unallowable costs frequently encountered in cost reports submitted by contracted providers and is not intended to be inclusive of all possible unallowable costs: (A) advertising expenses other than those for employee recruitment, yellow page listings no larger than one column width and one inch length, and advertising to meet statutory or regulatory requirements; (B) allowances for bad debts, other allowances, returns, refunds, or other similar accounts; (C) business, personal, or other expenses not related to the provision of services for which DHS has contracted; (D) contributions to political activities or contributions to charity; (E) corporate headquarters or central office expenses that are not directly involved in providing services or supplies used by the contracted provider's staff in normal operations relating to client-managed attendant services; (F) depreciation expenses other than those based on straight-line depreciation; building depreciation expenses based on less than a 30-year life; depreciation and amortization of unallowable costs, including amounts in excess of those resulting from the straight-line method, capitalized lease expenses in excess of actual lease payments, and goodwill or any excess above the actual value of physical assets at the time of purchase; (G) discounts for administrative reasons; courtesy, cash, trade, and quantity discounts; rebates; or other discounts granted; (H) dues and membership fees to organizations whose primary emphasis is not related to the services for which DHS has contracted; (I) dues to all types of political and social organizations, and to professional associations not directly and primarily concerned with the provision of services for which DHS has contracted; (J) entertainment expenses, except for entertainment which is reported as an employee benefit; (K) expenses for purchases of goods and services from revenues received from restricted or unrestricted gifts, donations, endowments, and trusts; (L) expenses which are not the legal obligation of the contracted provider or are not clearly enumerated as to dollar amount; (M) expenses of donated items (facilities, materials, supplies, services, etc.), including depreciation and amortization of the value of the donations, and values assigned to the services of unpaid workers or volunteers; (N) fees and travel expenses for corporation or association board of directors, and partnership or corporation filing fees; (O) fines and other penalties for violation of statutes or ordinances; penalties for late payment of taxes, utilities, mortgages, loans; insufficient fund bank charges; and other similar penalties; (P) franchise fees; (Q) fundraising, promotion, and public relations expenses; (R) expenses for life insurance premiums where the beneficiary is the provider organization, unless life insurance is a requirement of a loan agreement and the loan is related to client care; (S) interest expense on loans for assets not related to the delivery of services for which DHS has contracted; interest expense on loans pertaining to unallowable items; and interest expenses on that portion of interest paid which is reduced or offset by interest income (interest expenses must be reduced or offset by interest income except interest income from funded depreciation accounts or qualified pension funds); (T) medical equipment and supplies (except those required by the Occupational Safety and Health Administration, those used for universal health and safety precautions, and those otherwise needed to meet program requirements); (U) personal compensation not related to the delivery of services for which DHS has contracted; (V) physicians' fees for completion of physician orders; (W) expenses for the purchase of services, facilities, or supplies from related organizations or parties if the expenses exceed the lower of the cost to the related party or organization or the price of comparable services, facilities, or supplies purchased in an arm's length transaction; (X) rental or lease expense on any item not related to the delivery of services for which DHS has contracted; (Y) tax expense for federal, state, or local income tax, and any tax levied on assets not related to the delivery of services for which DHS has contracted; (Z) any expense, and corresponding revenues, that are reimbursed directly through voucher payment systems which are outside of the per-hour rate payment system; (AA) expenses which cannot be adequately documented; (BB) motor vehicles that are not generally suited or are not commonly used to transport clients or contracted provider supplies. This includes motor homes and recreational vehicles; sports and luxury automobiles; motorcycles; heavy trucks, tractors and equipment used in farming, ranching, and construction; and other activities unrelated to the provision of client-managed attendant services; (CC) transportation expenses for vehicles which are not generally suited to functions related to the provision of services for which DHS has contracted. Mileage expense may be included at a cost per mile not to exceed the current reimbursement rate set by the legislature for state employee travel. Mileage is allowable if there is adequate documentation of the mileage and if the expense was related to delivery of services for which DHS has contracted; (DD) any expense incurred because of imprudent business practices; (EE) out-of-state travel expenses, except for the provision of client-care- related services to contracted provider personnel, which include training and quality assurance functions; (FF) forms of compensation that are not clearly enumerated as to dollar amount or which represent profit distributions; (GG) management fees paid to a related organization that are not clearly derived from the actual cost of materials, supplies, or services provided directly to the contracted provider; (HH) insurance premiums pertaining to items of unallowable cost; (II) contributions to self-insurance funds which do not represent payments based on current liabilities; and (JJ) any expense not allowable under other pertinent federal, state, or local laws and regulations. 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 15, 1992. TRD-9216727 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: January 15, 1993 Proposal publication date: November 13, 1992 For further information, please call: (512) 450-3765 Part III. Texas Commission on Alcohol and Drug Abuse Chapter 150. Licensure of Chemical Dependency Counselors Counselor Licensure Rules 40 TAC sec.150.1, sec.150.13 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.150.1 and sec.150.13, concerning licensure of chemical dependency counselors, without changes to the proposed text as published in the August 7, 1992, issue of the Texas Register (17 TexReg 5518). The sections will clarify the requirements of licensure of chemical dependency counselors by more specifically defining supervision of counselor interns and renewal requirements. The amendments further define requirements for counselor interns and clarify requirements in continuing education for license renewal. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 4512o, which provide the Texas Commission on Alcohol and Drug Abuse with the authority to establish procedures which the commission is to license chemical dependency counselors. 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 18, 1992. TRD-9216801 Bob Dickson Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 11, 1993 Proposal publication date: August 7, 1992 For further information, please call: (512) 867-8720 Part IX. Texas Department on Aging Chapter 255. Designation of Area Agencies on Aging 40 TAC sec.255.36 The Texas Department on Aging adopts an amendment to sec.255.36, concerning operating an area agency on aging, without changes to the proposed text as published in the September 14, 1992, issue of the Texas Register (17 TexReg 70). This section concerns the operation an area agency on aging by establishing rules for uniform logo, telephone listings, and listing the Department as the primary funding source for area agencies on aging for all public information purposes. Each area agency will use the uniform logo designed by the Department to assure a uniform, statewide symbol for area agencies on aging designation for public information purposes. The telephone number of each area agency on aging, the area agency on aging's information and assistance toll-free or collect number, and the area agency on aging's nursing home ombudsman toll-free or collect number will appear in each telephone directory that is published by the provider of local telephone service, for residents in any geographical area that lies in whole or in part in the planning and service area served by the area agency on aging. Listing of the Texas Department on Aging as primary funding source by area agencies on aging. All area agencies on aging designated under Title III of the Older Americans Act, as amended, will cite the Texas Department on Aging as the primary funding source. Comments on the uniform logo included concerns for the cost for signs, stationery, and business cards; support for the concept of a uniform logo to increase the visibility of the area agencies on aging; and concern over the readability by older people with one suggestion that the logo be redesigned by a commercial or advertising artist. Comments on the uniform telephone listing included concerns over the cost of telephone listings in several directories, when compared to the with the results; the increased costs would result in reduced services; and one commenter suggested that the listing should be in the government section of the telephone directories under aging. Comments on the listing of the Texas Department on Aging as the funding source included prediction of difficulties when the Department does not serve as the primary funding source; and that some well established grantee/contract agencies may object to this requirement. General comments in favor of the new rules were very supportive of the Texas Board on Aging's goal to improve the visibility of the area agencies on aging and thereby improve access to services. Names of groups and associations making comments against the new rules were received from the Texas Association of Regional Councils, Rio Grande Area Agency on Aging, Middle Rio Grande Area Agency on Aging, Harris County Area Agency on Aging, Brazos Valley Development Council, and South Plains Association of Governments. The Department disagrees with the comments on the uniform logo because such a logo will help give a statewide, recognizable identity to area agencies on aging. The logo to be used was developed by the National Association of Area Agencies on Aging and is being used by several area agencies on aging already. The Department disagrees with the comments on the uniform telephone listings because the language used in the rule follows the new language in the reauthorization of the Older Americans Act concerning area agencies on aging. The portions dealing with Information and Assistance and the nursing home Ombudsman are established or will be established in service standards. Listings in the telephone directories of the service area are a necessary cost to area agencies on aging to ensure that they are accessible and that they serve as a visible advocate to the elderly in that area, and if future public awareness efforts are to fully succeed. The Department disagrees with the comments on listing the Department as a funding source because this rule is to assure that the public served by area agencies on aging are aware of the state program that provides funding for Older Americans Act programs in their area. There was no requirement that other organizations that also fund area agencies could not be cited and therefore no foreseen conflict exists at the local level. The amendment is proposed under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operations of this department. 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 18, 1992. TRD-9216748 Mary Sapp Executive Director Texas Department on Aging Effective date: January 8, 1993 Proposal publication date: September 14, 1992 For further information, please call: (512) 444-2727 Chapter 299. Ombudsman Service Standards 40 TAC sec.sec.299.1, 299.3, 299.5, 299.7, 299.9, 299.11, 299. 13. The Texas Department on Aging adopts the repeal of sec.sec.299.1, 299.3, 299.5, 299.7, 299.9, 299.11, and 299.13, concerning Ombudsman Service Standards, without changes to the proposed text as published in the September 1, 1992, issue of the Texas Register (17 TexReg 66). no longer reflect the intent of the Older Americans Act, as amended, for the implementation and operation of a statewide Office of State Long Term Care Ombudsman. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operations of this department. 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 18, 1992. TRD-9216749 Mary Sapp Executive Director Texas Department on Aging Effective date: January 8, 1993 Proposal publication date: September 1, 1992 For further information, please call: (512) 444-2727 40 TAC sec.sec.299.1, 299.3, 299.5, 299.7, 299.9, 299.11 The Texas Department on Aging adopts new sec.sec.299.1, 299.3, 299.5, 299.7, 299.9, and 299.11 concerning Ombudsman Service Standards. Sections 299.5, 299. 7, 299.9, and 299.11 are adopted with changes to the proposed text published in the September 1, 1992 issue of the Texas Register (17 TexReg 66). Section 299.1 and sec.299.3 are adopted without changes and will not be republished. The new sections reflect the intent of the Older Americans Act, as amended, for the implementation and operation of a statewide Office of State Long Term Care Ombudsman. The new sections will function as a delineation of responsibilities for the Texas Department on Aging, the Office of the State Long Term Care Ombudsman, and the regional ombudsman programs in the provision of ombudsman services to residents of long term care facilities and their families. This new rule replace the Ombudsman Service Standards published as 40 TAC Chapter 299. One commenter presented commendations on the proposed standards. One commenter suggested that the Texas Department of Protective and Regulatory Services be listed to reflect the new Health and Human Services Commission organization where appropriate. Three commenters expressed comments on the program relationship between the state and regional offices and requested clarification. Program relationships are outlined in the Older Americans Act and the standards are not addressing the management structure at the regional level. Two commenters wrote on the issue of coverage of facilities not regularly served by certified volunteer ombudsmen and the costs associated with this coverage. Regional programs are responsible for monitoring care in facilities in their regions. Frequency of monitoring should be based on the needs of the facility and not based on a set schedule. Funding for all aspects of the regional program should be included in the Area Plan budget. The following group/association made comments in favor of the proposed rule: Senior Citizens of Greater Dallas. The following groups/associations made comments not in favor of the proposed rule: Ark-Tex Council of Governments, South Plains Association of Governments, and North Central Texas Council of Governments. The Department disagreed with those comments which did not reflect the federal mandate of the Older Americans Act and the state enabling legislation; therefore, no changes were made to accommodate those comments. The new sections are adopted under the authority of Chapter 101, Human Resources Code, which provides the Texas Department on Aging with the authority to promulgate rules governing the operations of this department. sec.299.5. Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. Advocacy-Defending, upholding, or assuring the provision of individual rights of residents of long term care facilities. Advocacy efforts may include, but are not limited to, providing information, negotiation, mediation, confrontation, involvement of other organizations or legal procedures. Certified volunteer -An individual who has been selected by a regional program to serve as an advocate for long term care facility residents and participate in the ombudsman program. Certified volunteers shall successfully complete an internship, or equivalent experience, as determined by the office, and complete required training prior to being certified and prior to engaging in independent complaint resolution. A certified volunteer shall be a representative of the office. Clients or recipients of services-Persons who reside in settings described in sec.299.3(b) of this title (relating to Philosophy and Mission Statement), and their families. Conflict of interest-A representative of the office, paid or volunteer, or an immediate member of his/her family, who has one or more of the following: (A) direct involvement in the licensing or certification of a long term care facility or of a provider of a long term care service; (B) ownership or investment interest in a long term care service; (C) employed by or participates in the management of a long term care facility; (D) receives or has the right to receive, directly or indirectly, remuneration under a compensation arrangement with an owner or operator of a long term care facility; and; (E) has a family member residing in a long term care facility in which the representative is assigned or provides advocacy. Department-The Texas Department on Aging, the single state agency for Older Americans Act programs. Friendly visitor -A volunteer who does not participate in complaint resolution. Friendly visitors receive orientation and may receive local training but do not receive certification. Grantee-The entity at the regional level that is contractually responsible for the ombudsman program. In-service-A planned educational effort conducted or coordinated by professional staff or certified volunteers. Long term care facility-A facility that is licensed or regulated or that is required to be licensed or regulated by the Texas Department of Health. Office-The Office of the State Long Term Care Ombudsman, a division of the Texas Department on Aging. Ombudsman intern -A volunteer who has been admitted to the regional training program as a potential certified volunteer ombudsman. Professional staff -An individual at the regional or state level who has responsibility directing, implementing or supervising ombudsman program operations. A professional generally refers to an individual who has obtained a four-year bachelors degree in aging related areas or human services, but may include an individual who does not have a four year degree, but who has qualifying experience as a substitute for a degree. Such substitution shall be consistent with the employing entity's personnel policies. Regional program -A provider and its implementation of these standards on a sub-state level. Regional programs are Area Agencies on Aging, or other entities, as defined by the Board on Aging, Texas Department on Aging. Staff ombudsman -The professional staff person at the regional level who directs ombudsman program activities. The staff ombudsman the regional program and so designated by the Executive Director, Texas Department on Aging, and under state law shall be granted access to long term care facility resident records. The staff ombudsman shall be a representative of the office. State ombudsman -The person designated by the Executive Director, Texas Department on Aging, as Chief Administrator of the Office of the State Long Term Care Ombudsman. The state ombudsman is accountable to the Executive Director, Texas Department on Aging, for program and personnel matters. Texas Department of Health-The state agency responsible under state law for the regulation of long term care facilities in Texas. sec.299.7. Responsibilities of the Department on Aging. (a) The department shall establish and operate the office. (b) The department may operate the office directly or by contract or memorandum of agreement with a public agency or other appropriate private nonprofit organization. The department may not contract with an agency or organization that is: (1) responsible for licensing or certifying long term care services; or (2) an association of long term care facilities or an affiliate of such an association. (c) The department shall consider the views of elderly persons, provider organizations, advocacy groups, and area agencies on aging in planning and operating the office. (d) The department shall assure that a person involved in designating the state ombudsman or in designating an employee or representative of the office does not have a conflict of interest. (e) The department shall designate a state ombudsman, who on a full time basis will direct the activities of the office. (f) The department shall assure that representatives of the office receive adequate legal advice and representation. (g) The department shall operate the ombudsman program in cooperation with state and federal regulatory agencies and shall enter into a cooperative agreement with the Texas Department of Health to define areas of responsibilities, roles, and expectations. (h) The department shall assure that appropriate funding and resources are made available to the office to protect the office's ability to thoroughly investigate and resolve complaints and support a statewide advocacy effort. sec.299.9. Responsibilities of the Office of the State Long Term Care Ombudsman. (a) General responsibilities of the office. The office shall be an aggressive advocate for the development of an effective and progressive system of quality long term care; and of rules, policy, procedures, resource development, and legislation on the state and national level for quality long term care services. It shall assure that residents and family members have regular and timely access to services provided through the office and that they receive timely responses from representatives of the office to complaints and requests for information and assistance. (b) Specific responsibilities of the office; (1) provide policies, procedures, and technical assistance for regional programs to assure consistent investigation and resolution of complaints made by or on behalf of residents of long term care facilities relating to action, inaction, or decisions of providers, or their representatives, of long term care services, of public agencies, or of social service agencies, which may adversely affect the health, safety, welfare, or rights of such residents; (2) establish procedures for appropriate access by the ombudsman to long term care facilities and patients' records, including procedures to protect the confidentiality of such records and assure that the identity of any complainant or resident shall not be disclosed without the consent of such complainant or resident, or upon court order; (3) establish procedures to assure that any files maintained by a representative of the office shall be disclosed only at the discretion of the ombudsman having authority over the disposition of such files or upon consent of the complainant, or resident, or the resident's legal representative, or as required by court order; (4) establish written procedures to train staff and volunteers and assure that all representatives of the office are qualified to investigate and resolve complaints; (5) assure that no representative of the office shall be liable under State law for the good faith performance of official duties; (6) assure that willful interference with representatives of the office in the performance of their official duties shall be unlawful in accordance with State enabling legislation; (7) prohibit retaliation and reprisals by a long term care facility or other entity with respect to any resident or employee for having filed a complaint with, or providing information to, the office and assuring that existing sanctions with respect to such interference, retaliation, and reprisals are applied; (8) establish a statewide uniform reporting system to collect and analyze data relating to complaints and conditions in long term care facilities for the purpose of identifying and resolving significant problems and making recommendations regarding policy, regulatory and legislative issues affecting quality of care. Such data shall be submitted on an annual basis, to the Texas Department of Health, the Texas Department of Human Services, the Texas Department of Protective and Regulatory Services, Office of the Governor, advocacy and membership organizations interested in long term care and elder rights issues, area agencies on aging, and the Administration on Aging; (9) ensure that mechanisms are in place to identify and resolve conflicts of interest. (10) coordinate ombudsman activities with Advocacy, Incorporated, the protection and advocacy system, that exists for persons with developmental disabilities or mental illness; (11) form an advisory committee representing consumers, advocates, providers, and regulators to meet at least two times per year, to obtain advice on matters of priorities of service, standards, policies and procedures and identify advocacy strategies for the statewide program. Membership of the committee shall be approved by the Board on Aging, Texas Department on Aging; (12) demonstrate the coordination with citizen and advocacy organizations to support quality of care and increase community involvement with and awareness of long term care services; (13) develop procedures to evaluate the effectiveness of the statewide ombudsman program. The office shall conduct on-site evaluations of regional programs at least biennially; (14) assure the functioning of an effective training program and promotional program to promote the acceptance and operation of the ombudsman program. sec.299.11. Responsibilities of Regional Programs. (a) General responsibilities of the program. The regional program shall be an organization with a responsive, visible presence in its region. It shall be coordinated with state, regional and local agencies and be recognized as an active member in the continuum of care in the communities it serves. It shall have a mutually positive referral relationship with the Texas Department of Health, the Texas Department of Human Services and the Texas Department of Protective and Regulatory Services. It shall be an expert and reliable source of information for families seeking information on long term care placement or general requests for assistance. It shall be a catalyst for community involvement in long term care facilities and be viewed as a credible source of information for the community, the regulatory system, and the nursing home industry. It shall maintain an active and visible advocacy effort to assure quality of care and quality of life in every facility in the region. (b) Specific responsibilities of regional programs: (1) shall have adequate staff to manage all aspects of the program and shall designate a professional staff person as the regional ombudsman. The regional ombudsman program shall be a subdivision of the office. The regional ombudsman under federal authority shall be a representative of the office; (2) recruit, select, and provide regional certification training and supervision for volunteer ombudsmen to serve all licensed nursing facilities in the region with the goal of at least one ombudsman per nursing facility. Selection, training, acceptance, and placement of volunteers shall be in accordance with procedures established by the office; (3) provide active supervision and monitoring of certified volunteers and regional staff participating in the program, ensuring that each certified volunteer contributes at least two hours per week, on the average, to the program. Staff ombudsman shall visit each nursing facility in the region at least once per year. Assure that facilities not regularly served by volunteers are monitored by regional staff; (4) provide a minimum of 12 hours of in-service training for certified volunteers per year. Content and process will be in accordance with procedures developed by the office; (5) provide recertification of existing certified volunteers on a biennial basis, as directed by the office; (6) assure that residents, families, and complainants have regular, timely, and no-cost access to the program and that timely responses are given to complainants and requesters of the service. The ombudsman telephone number shall be listed under the area agency on aging listing in accordance with current TDoA policy; (7) support the formation of family and resident councils in each facility of the region, in an effort to provide advocacy resources to promote quality of care; (8) ensure availability of materials, resources and in- services relating to quality of care to residents, family, and staff of each nursing facility in the region with the goal of providing at least one in-service per facility per year, conducted by certified volunteers or staff ombudsmen. Regional programs shall demonstrate coordination with regional offices of the Texas Department of Health in conducting an educational session in conjunction with the open hearing for each nursing facility in the region per year; (9) coordinate with regional administrators or their designees of the Texas Department of Health, the Texas Department of Human Services, and the Texas Department of Protective and Regulatory Services serving the region at least quarterly to develop efficient referral, communication, and problem-solving procedures; (10) participate in inspection and survey activities with the Texas Department of Health in accordance with the cooperative agreement between the department and the Texas Department of Health; (11) submit program performance and other reports in accordance with requirements established by the office, to include an analysis of complaints, a facility by facility synopsis of advocacy activities and recommendation for policy-regulatory changes; (12) assure local awareness of the ombudsman program through the frequent use of local and regional resources, including the media, in order to assure access to the program; (13) demonstrate the coordination with citizen, membership and advocacy organizations to support quality of care and increase community involvement with and awareness of long term care services. 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 18, 1992. TRD-9216750 Mary Sapp Executive Director Texas Department on Aging Effective date: January 8, 1993 Proposal publication date: September 1, 1992 For further information, please call: (512) 444-2727 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 Texas Register publishes notices of actions taken by the State Board of Insurance pursuant to the Code, Chapter 5, Subchapter L. 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 Texas Department of Insurance, 1110 San Jacinto Street, Austin.) The State Board of Insurance of the Texas Department of Insurance, at a public hearing held at 9 a.m. on November 20, 1992, under Docket Number 1934, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street, Austin, adopted amendments as proposed by Staff in a petition filed in the Chief Clerk's Office on August 19, 1992. The petition recommended, in part, revising Rule 74 of the Texas Automobile Rules and Rating Manual (the Manual) to allow insurers to establish discounts of the following categories: Good Student Discount, Student Away at School Discount, Anti-Lock Brake Discount, and Renewal Discount. Based on these amendments, an insurer would file its election to give a discount prior to the effective date. Staff's petition (Reference Number A-0892-54-I), was published in the September 22, 1992, issue of the Texas Register (17 TexReg 6544). The State Board of Insurance has jurisdiction over this matter pursuant to the Insurance Code, Articles 5.06 and 5.96. The amendments as adopted by the State Board of Insurance, adding a new section H to the Manual's Rule 74, are as follows: H. Student Away from Home, Anti-Lock Brake and Renewal Discounts. 1. This rule is not applicable to risks: a. written in the Texas Automobile Insurance Plan; b. subject to experience rating, loss rating, composite rating, or retrospective rating; or c. rated in accordance with the miscellaneous type vehicles rule. 2. Policies that provide private passenger automobile coverages may afford any or all of the discounts described in paragraphs 3.a., b., and c., of this rule. Discounts and the amount of discounts applied are optional for each company but any discounts elected must be applied uniformly to applicable classes and coverages. No sub-classification is permissible. Discounts may be applied to bodily injury/property damage liability, personal injury protection/medical payments, collision, other than collision, and specified causes of loss coverages. The election to give discounts must be filed with the Department prior to the effective date of such discounts. A company may file its intent to give discounts on its own form. If a company chooses to withdraw any discounts, written notification must be given to the Department prior to such withdrawal. A company may establish its own criteria for giving the discounts subject to applicable provisions of paragraphs 3.a., b., and c. of this rule. The criteria to be used by each company must be filed with the Department prior to the effective date of the discounts. The effect of a discount under this rule shall be in addition to the effect of any other discount applicable under this Manual or under any other rating manual approved by the Board. "Discount" means a percentage credit applicable to the company's filed rate within the flexibility band or approved rate outside the flexibility band. 3. Discount. Categories a. Student Away at School Discount A discount may be given for a household member who: (1) is classified as a youthful operator; (2) is a student living away from home to attend school; and (3) does not own an auto or have an auto furnished for his or her regular use at school. Any such discount must be applicable to the full term of the policy and may not be withdrawn when the student returns to his or her domicile on a temporary basis, such as holidays and summer break. However, the discount shall be withdrawn once the student has completed his or her schooling or does not intend to return to the school. b. Anti-Lock Brake Discount A discount may be given for an anti-lock brake system which has the ability to lessen the likelihood of an automobile accident. c. Renewal Discount A renewal discount may be given after a policy has been in force for no less than six months, based upon the driving experience of the members of a household to which the policy applies. The standards for a renewal discount may be established by each company. This notification is made pursuant to the Texas Insurance Code, Article 5. 96, which exempts it from the requirements of the Administrative Procedure and Texas Register Act. Consistent with the Texas Insurance Code, Article 5.96(h), prior to the effective date of this action, the Board will notify all insurers writing automobile insurance. IT IS THEREFORE THE ORDER of the State Board of Insurance that the amendments of the Manual's Rule 74, to allow insurers to establish discounts designated as Student Away at School Discount, Anti-Lock Brake Discount, and Renewal Discount, be adopted and become effective on and after 15 days after publication of this notice in the Texas Register. 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 21, 1992. TRD-9216781 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: January 9, 1993 Proposal publication date: September 22, 1992 For further information, please call: (512) 463-6327 The State Board of Insurance of the Texas Department of Insurance, at a public hearing held at 9 a.m. on December 11, 1992, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street, Austin, adopted amendments proposed by Staff. The amendments to the endorsements in the Texas Automobile Rules and Rating Manual (the Manual) bring the endorsements into compliance with the Insurance Code by meeting the plain language requirements of Article 5.06(7), and Commissioner's Order Number 92-0573, issued June 15, 1992. The numbers of the existing endorsements are 501, 503, 510, 511, 512, 529A, 552A, 561C, and 573. Those numbers are changed to 501A, 503A, 510A, 511A, 512A, 529B, 552B, 561D, 573A. Staff's petition (Reference Number A-0792-45-I), was published in the July 24, 1992 issue of the Texas Register (17 TexReg 5191). The State Board of Insurance has jurisdiction over this matter pursuant to the Insurance Code, Articles 5.06 and 5.96. The amendments as adopted by the State Board of Insurance are shown in exhibits 1-11, which were filed with the Chief Clerk under Reference Number A-0792-45-I, and are incorporated by reference herein. This notification is made pursuant to the Texas Insurance Code, Article 5. 96, which exempts it from the requirements of the Administrative Procedure and Texas Register Act. Consistent with the Texas Insurance Code, Article 5.96(h), the Department will notify all insurers writing automobile insurance of this adoption by letter summarizing the Board's action. IT IS THEREFORE THE ORDER of the State Board of Insurance that endorsements 501, 503, 510, 511, 512, 529A, 552A, 561C, and 573 are hereby changed to 501A, 503A, 510A, 511A, 512A, 529B, 552B, 561D, 573A, and the amendments of the Manual's endorsements named herein are adopted to become effective on and after 12:01 a.m., February 1, 1993. 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 21, 1992. TRD-9216779 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: February 1, 1993 Proposal publication date: July 24, 1992 For further information, please call: (512) 463-6327 The Texas Department of Insurance, at a public hearing held at 9 a.m. on November 12, 1992, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street, Austin, adopted amendments as proposed by Staff to the Symbol and Identification Section of the Texas Automobile Rules and Rating Manual (the Manual). The amendments adopt certain new and/or adjusted 1991 and 1992 Model Private Passenger Automobile Physical Damage Rating Symbols. The symbols are for various models of the following makes: Isuzu, Oldsmobile, Acura, Alfa Romeo, Audi, Avanti, BMW, Buick, Chevrolet, Chrysler, Daihatsu, Dodge, Eagle, Ford, Honda, Hyundai, Infiniti, Jaguar, Lexus, Lincoln, Mazda, Mercury, Mercedes Benz, Mitsubishi, Nissan, Plymouth, Pontiac, Saab, Subaru, Suzuki, Toyota, Volkswagen, and Volvo. The symbols adopted were developed from Manufacturer List Price Data and adjusted in accordance with the prescribed Vehicle Series Rating Rule contained in the Symbol and Identification Section of the Manual, for 1990 and subsequent models. Staff's petition (Reference Number A-0992-61-I), was published in the October 9, 1992, issue of the Texas Register (17 TexReg 7058). The State Board of Insurance has jurisdiction over this matter pursuant to the Insurance Code, Articles 5.101 and 5.96. The amendments as adopted by the State Board of Insurance are shown in the exhibits which were filed with the Chief Clerk under Reference Number A-0992-61- I, and are incorporated by reference herein. This notification is made pursuant to the Texas Insurance Code, Article 5. 96, which exempts it from the requirements of the Administrative Procedure and Texas Register Act. Consistent with the Texas Insurance Code, Article 5.96(h), prior to the effective date of this action, the Board will notify all insurers writing automobile insurance. IT IS THEREFORE THE ORDER of the State Board of Insurance that the Manual's Symbol and Identification Section is amended to include the new and/or adjusted 1991 and 1992 model private passenger automobile physical damage rating symbols, and these symbols are hereby adopted to become effective on and after 60 days after publication of this notice in the Texas Register. 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 21, 1992. TRD-9216780 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: February 23, 1993 Proposal publication date: October 9, 1992 For further information, please call: (512) 463-6327