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 I. Texas State Library and Archives Commission Chapter 7. Local Records Records Retention Schedules 13 TAC sec.7.125 The Texas State Library and Archives Commission adopts an amendment to sec.7.125, concerning local records, without changes to the proposed text as published in the September 18, 1992, issue of the Texas Register (17 TexReg 6414). Amendments were made to two of the schedules adopted by reference in the section. The retention period for grant applications and reports in Local Schedule GR is changed to the end of the fiscal year plus seven years for school districts and to the end of the fiscal year plus three, five, or seven years for all other governments to resolve a potential conflict between the retention periods and another section of the schedule. As the result of public comment, the retention period for driver's license record checks in Local Schedule SD is changed from three years to until superseded or date of separation of the employee plus two years, as applicable. The justification for the new sections is to adopt by reference records retention schedules for the records of public school districts and public junior colleges and amended records retention schedules for records common to all local governments and for the records of property taxation. The sections will function by providing local governments with mandatory minimum retention periods for records. Comments were received from eight public school districts. None of the comments involved the text of the section as published. The comments concerned suggested changes to the records retention schedules adopted by reference in sec.7.125. A commenter suggested that the retention periods for school district financial records in Local Schedule SD and the second edition of Local Schedule GR be reduced from the end of the fiscal year in which the financial transaction took place plus seven years (FE plus seven years) to FE plus five years. A commenter suggested that the retention period for school district agency fund records in Local Schedule SD be raised from FE plus three years to FE plus seven years. A commenter objected to the retention period of date of withdrawal plus seven years for the scholastic achievement records of children in grades pre-K through eight in Local Schedule SD, stating that the records should be retained permanently. A commenter noted that the number of different retention periods in Local Schedule SD should be reduced to three or four common ones for ease of use by school districts. Three commenters questioned the one year retention period for grade books in Local Schedule SD, observing that it may be in conflict with requirements of the Texas Education Agency. A commenter objected that the two year retention period for parental permission slips in Local Schedule SD was too long. A commenter questioned the need to retain applications for the free lunch program for five years under the requirements of Local Schedule SD when parents have to make new applications each year. A commenter suggested that the retention period for food and food equipment inventory records be reduced from FE plus five years to three years in Local Schedule SD. A commenter objected to the retention periods established for driver's license records checks, service requests/work orders, and annual cost reports in the section of Local Schedule SD dealing with transportation records. Commenting for the section was San Antonio Independent School District. Commenting against the section were Flour Bluff Independent School District, Grand Prairie Independent School District, Houston Independent School District, Northside Independent School District, Rockdale Independent School District, Tuloso-Midway Independent School District, and Whitehouse Independent School District. One commenter objected to the retention period of end of the fiscal year in which the financial transaction took place plus seven years (FE plus seven years) for most financial records of school districts. The commenter observed that this is an increase of two years over the period proposed in preliminary drafts of Local Schedule SD and urged that the shorter period be restored. The agency disagrees. The FE plus seven year retention period is to satisfy Texas Education Agency requirements for the retention of records documenting financial transactions or other records subject to audit involving federal grants or subgrants. It is difficult and often impossible to separate records that document the expenditure of federal funds from those documenting the expenditure of state or local funds. While the standard audit period prescribed by the United States Department of Education is five years, the Texas Education Agency points out the retention period begins to toll from the time it submits certain annual or other periodic financial reports and that it cannot submit the reports until reports are received from all school districts receiving federal dollars. The FE plus seven years minimum retention period is needed to ensure that school districts retain needed records for a reasonable time to cover the contingency of a federal audit. One commenter suggested the retention period of FE plus three years for agency fund accounting records on Local Schedule SD be raised to the prevailing FE plus seven year retention period for school district financial records. The agency disagrees. Agency funds, which consist of clearing accounts that are custodial in nature (e.g., student picture accounts) are not reasonably subject to the same retention requirements as other types of financial records and school districts should have the opportunity to use the shorter retention period if they wish. One commenter felt that school districts should be required to retain the scholastic achievement records of children in grades pre-K through eight permanently and not the date of withdrawal plus seven years given as the retention period on Local Schedule SD. The agency disagrees. While these scholastic records are retained permanently by many districts, not all do so. Since the date of withdrawal plus seven years is a minimum retention period, nothing prevents those districts that retain the records permanently from continuing to do so, and the agency anticipates that most districts will continue the practice of permanent retention. A commenter suggested that Local Schedule SD would be easier to use if the various retention periods be reduced to three or four common ones. The agency disagrees. Nothing prevents a school district for the purposes of its records management program from raising the minimum retention periods on some records to reduce the number of different retention periods that appear on its records control schedules. Three commenters pointed out the one year retention period for grade books in Local Schedule SD was in conflict with a Texas Education Agency requirement that grade books be retained for five years. The agency disagrees. During the Texas Education Agency's eight-month review of the first version of Local Schedule SD, no objection was raised to the proposal that grade books need be retained for a minimum of one year only after transcription of grades to a cumulative scholastic record. A commenter objected to the two year retention period for parental permission slips in Local Schedule SD and advocated a retention period of as long as administratively valuable after cessation of the activity for which permission was granted. The commenter pointed out his suggested period was the retention period the agency had proposed on earlier drafts of Local Schedule SD. The agency disagrees with the recommended change. Based on comments received in the development stage of the schedule, the agency feels that many of the activities for which parental permission is granted pose the risk of accident and injury to students and that a two year retention period, which matches the statute of limitations on personal injury claims, is reasonable and prudent. A commenter questioned the need to retain applications for the free school lunch program for a minimum period of five years under the requirements of Local Schedule SD when parents or guardians have to make new applications each year. The agency points out that questions concerning the eligibility of a student to have participated in the free lunch program may arise during an audit and the applications are needed to verify eligibility. While the standard audit period prescribed by the United States Department of Agriculture is three years, the Texas Education Agency points out the retention period begins to toll from the time it submits annual or other periodic financial reports and that it cannot submit the reports until reports are received from all school districts receiving federal dollars. The five year minimum retention period is needed to ensure that school districts retain needed records for a reasonable time to cover the contingency of a federal audit. A commenter recommended that the retention period for food and food equipment records in Local Schedule SD be lowered from FE plus five years to three years. The agency disagrees. Inventory records support financial and other records subject to audit and should be retained for the same period as those records. One commenter suggested that the retention period for service requests/work orders for service or repair to school vehicles in Local Schedule SD be reduced from two years to until data processed. He pointed out that there was no need to retain the paper records once data had been entered in a computer. Commission schedules do not specify in what media a record must be kept during its life to satisfy the minimum retention period. The Local Government Code, Chapter 205, permits the destruction of source documents provided that the data files are retained for the prescribed retention period. The same commenter suggested that the annual school transportation cost reports in Local Schedule SD be lowered from FE plus five years to three years. The agency disagrees. FE plus five years has been established as the base minimum retention period for annual financial reports for all local governments. We see no sufficiently compelling reason why the school transportation reports should be made an exception. The amendment is adopted under the Government Code, sec.441.158, and the Local Government Code, sec.202.001(b)(2). The Government Code, sec.441.158(a), requires the Texas State Library and Archives Commission to prepare and distribute records retention schedules for local government records and to adopt the schedules by rule. The Local Government Code, sec.202.001(b)(2), permits the commission to exempt by rule certain records from records destruction procedures established by statute. The section and the records retention schedules adopted by reference were approved by the Local Government Records Committee, as required by the Government Code, sec.441.165, at an open meeting held in Austin on November 9, 1992. 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 28, 1992. TRD-9217014 Raymond Hitt Assistant State Librarian Texas State Library and Archives Commission Effective date: February 15, 1993 Proposal publication date: September 18, 1992 For further information, please call: (512) 463-5440 TITLE 22. EXAMINING BOARDS Part XIV. Texas Optometry Board Chapter 280. Therapeutic Optometry 22 TAC sec.280.5 The Texas Optometry Board adopts an amendment to sec.280.5, concerning therapeutic optometry, with changes to the proposed text as published in the November 10, 1992, issue of the Texas Register (17 TexReg 7836). The rule will inform doctors of optometry of the list of anti-glaucoma drugs which cannot be prescribed by an optometrists or used in a manner that was not permitted by law on August 31, 1991. The amendment will bring the Board's current Chapter 280 into compliance with Attorney General Opinion DM-152, issued on August 13, 1992. All doctors of optometry will be informed of the lists of anti-glaucoma drugs which cannot be prescribed by an optometrist or used in a manner that was not permitted by law on August 31, 1992. One comment was received from the Texas State Board of Pharmacy suggesting that the proposed rule be further restricted to exclude the use of all drugs with an FDA-approved indication for treatment of glaucoma. The Texas Optometry Board views this suggested language as too restrictive under the applicable opinion of the Attorney General, DM-152, interpreting the statutes. Therapeutic optometrists may not prescribe drugs that are anti-viral or anti-glaucoma agents; however, the opinion of the Attorney General also acknowledged that it was an issue of fact "whether a particular topical ocular pharmaceutical agent is primarily an antiviral or antiglaucoma gent." In the judgment of the Texas Optometry Board, the rule does not include any drug which is primarily an antiviral or antiaglaucoma agent; it therefore disagrees with the restrictions suggested by the Pharmacy Board. The Texas Optometry Board did, however, add to the list of exclusion drugs, carteolol, a suggestion made by the Pharmacy Board. The amendment is adopted under Texas Civil Statutes, Article 4452, sec.2.14, which provide the Texas Optometry Board with the authority to promulgate substantive and procedural rules. sec.280.5. Prescriptions Written for Pharmaceutical Agents by the Therapeutic Optometrists. (a)-(g) (No change.) (h) The following are those drugs which are classified as antiglaucoma drugs and may not be used in a manner that was not permitted by law on August 31, 1991: (A) Pilocarpine 1.0%-10%; (B) Carbachol 0.75%-3.0%; (C) Carteolol; (D) Epinephrine 0.25%-2.0%; (E) Dipivefrin 0.1%; (F) Betaxolol 0.5%; (G) Levobunolol 0.5%; (H) Metipranolol 0.3%; (I) Timolol 0.25%-0.5%; (J) Physostigmine 0.25%-0.5%; (K) Demecarium 0.125%-0.25%; (L) Echothiophate 0.03%-0.25%; (M) Isoflurophate 0.25%;. (i) This formulary specifically lists the types of drugs which may be prescribed by a therapeutic optometrists. Subject to the antiglaucoma and antiviral limitations described in subsections (g) and (h) of this section, a therapeutic optometrist may possess and administer any topical ocular pharmaceutical agent which has a legitimate diagnostic or therapeutic use. 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 23, 1992. TRD-9217016 Lois Ewald Executive Director Texas Optometry Board Effective date: January 19, 1993 Proposal publication date: November 10, 1992 For further information, please call: (512) 835-1938 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 33. Early and Periodic Screening, Diagnosis, and Treatment Subchapter J. Medical Phase 40 TAC sec.33.140 The Texas Department of Human Services (DHS) adopts an amendment to sec.33. 140, concerning Early and Periodic Screening, Diagnosis and Treatment- Comprehensive Care Program Providers (EPSDT-CCP), with changes to the proposed text as published in the November 27, 1992, issue of the Texas Register (17 TexReg 8279). The justification for the amendment is to clarify the reimbursement methodologies for private duty nurses, occupational therapists, speech-language pathologists, freestanding psychiatric hospitals and facilities, and freestanding rehabilitation hospitals providing EPSDT-CCP services. The amendment will function by providing the methodology DHS uses to reimburse providers for covered services under the Medicaid program and by ensuring that recipients continue to have access to services. DHS received comments concerning the proposal from the State Committee of Examiners for Speech-Language Pathology and Audiology. A summary of the comments and DHS's response follows. COMMENT: The commenter requested that DHS change the term "speech therapist" to "speech-language pathologist" and also change the term "licensed speech therapist" to "licensed speech-language pathologist" in sec.33.140(8). RESPONSE: DHS agrees and is adopting the section with the requested changes in terminology. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.33.140. Early and Periodic Screening, Diagnosis, and Treatment- Comprehensive Care Program Providers (EPSDT-CCP). The following are approved EPSDT-CCP provider types and the approved Texas Medical Assistance (Medicaid) Program reimbursement methodology for each provider type. (1)-(5) (No change.) (6) Private duty nurses. DHS or its designee makes payment to independently practicing licensed vocational nurses and registered nurses according to the lesser of actual charge or a fee schedule established by DHS. (7) Occupational therapists. DHS or its designee makes payment to independently practicing licensed occupational therapists according to the lesser of actual charge or a fee schedule established by DHS. (8) Speech-language pathologists. DHS or its designee makes payment to independently practicing licensed speech-language pathologists according to the lesser of actual charge or a fee schedule established by DHS. (9) Freestanding psychiatric hospitals and facilities. The freestanding psychiatric hospital or facility must be accredited by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). Reimbursement for acute care inpatient psychiatric care is made according to the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) reimbursement principles without the application of TEFRA targets (reasonable cost basis). DHS or its designee reimburses freestanding psychiatric hospitals and facilities under similar methods and procedures used in Title XVIII of the Social Security Act, as amended, effective October 1, 1982, by Public Law 97-248. DHS or its designee establishes interim payment rates. (10) Freestanding rehabilitation hospitals. A freestanding rehabilitation hospital must be enrolled and participating in Medicare. Reimbursement for inpatient care provided in the freestanding rehabilitation hospital is made under the Texas Diagnosis Related Group (DRG) payment system, as described in sec.29.606 of this title (relating to Reimbursement Methodology for Inpatient Hospital 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 30, 1992. TRD-9217046 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1993 Proposal publication date: November 27, 1992 For further information, please call: (512) 450-3765