Proposed Sections Before an agency may permanently adopt a new or amended section, or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before any action may be taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive sections, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 19. Education Part II. Texas Education Agency Chapter 157. Hearings and Appeals Subchapter A. General Provisions for Hearings Before the Commissioner of Education The Texas Education Agency (TEA) proposes the repeal of ssec.157.1-157. 16, 157.64-157.68, and 157.91-157.98, concerning hearings and appeals. The chapter is being repealed in accordance with the sunset review process mandated by Senate Bill 1, 71st Legislature. A new Chapter 157 is being proposed in a separate submission. Kevin O'Hanlon, Chief Counsel, has determined that for the first five-year period the proposed repeal is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. O'Hanlon and Criss Cloudt, director of policy planning and evaluation, have determined that for each year of the first five years the repeal is in effect, the public benefit anticipated as a result of enforcing the sections will be a clearer, more concise statement of the rules relating to hearings and appeals. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed repeal submitted in accordance with the Administrative Procedure and Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the sections has been published in the Texas Register. 19 TAC sec.sec.157.1-157.16 (Editor's note: The text of the following section* proposed for repeal will not be published. The section* may be examined in the offices of the Texas Education Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under Senate Bill 1, sec.2.25, 71st Legislature, Sixth Called Session, which authorizes the State Board of Education to review all rules, other than portions of Chapter 75, under Title 19, Texas Administrative Code, relating to public education. sec.157.1. Scope and Purpose. sec.157.2. Hearing Officer. sec.157.3. Classification of Parties. sec.157.4. Appearances. sec.157.5. Conduct and Decorum. sec.157.6. Classification of Pleadings. sec.157.7. Form and Content of Documents. sec.157.8. Filing of Documents. sec.157.9. Petition for Review. sec.157.10. Answers. sec.157.11. Service of Pleadings. sec.157.12. Prehearing Conference. sec.157.13. Motions for Continuance. sec.157.14. Dismissal Without a Hearing; Nonsuits. sec.157.15. Order of Procedure at Hearing. sec.157.16. Filing of Exceptions and Replies to Proposal for Decision. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 30, 1992. TRD-9217034 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Earliest possible date of adoption: February 5, 1993 For further information, please call: (512) 463-9701 The Texas Education Agency (TEA) proposes new sec.sec.157.1- 157.9, 157.21, and 157.26, concerning hearings and appeals. The sections provide procedures for hearings concerning proprietary and driver training schools and cases related to students with disabilities. Kevin O'Hanlon, Chief Counsel, has determined that for the first five-year period the proposed sections are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. O'Hanlon and Criss Cloudt, director of policy planning and evaluation, have determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing the sections will be a clearer, more concise statement of the rules relating to hearings and appeals. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed sections submitted in accordance with the Administrative Procedure and Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the sections has been published in the Texas Register. Subchapter A. Hearings Concerning Students with Disabilities under the Individuals with Disabilities Education Act 19 TAC sec.sec.157.1-157.9 new sections are proposed under the Texas Education Code, s21.501 and sec.32.22; 20 United States Code, sec.1415; and Texas Civil Statutes, Article 4413(29c), sec.4 and sec.17, which authorize the State Board of Education to promulgate rules regarding hearings on proprietary and driver training schools and cases related to students with disabilities. sec.157.1. Purpose. This subchapter shall govern the proceedings in all hearings requested under the Individuals With Disabilities Education Act (IDEA), Part B, as amended, 20 United States Code, sec.1401 et seq, and the applicable federal regulations, 34 Code of Federal Regulations sec.300.1 et seq. The Administrative Procedure and Texas Register Act (APTRA), Texas Civil Statutes, Article 6252-13a, insofar as it does not conflict with the IDEA or these rules, is hereby incorporated into these rules. The Texas Rules of Civil Evidence and Civil Procedure as modified by the APTRA shall apply to proceedings under this subchapter. A one tier system of statewide hearing officers under the IDEA is hereby adopted. sec.157.2. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Eligible student -Any student who has reached his or her 18th birthday and has not been adjudged incompetent by a court of proper jurisdiction, or any minor student who has had his or her disabilities of minority removed by order of a court or by operation of law. Parent-A parent or person acting in the place of a parent, such as a grandparent or stepparent, with whom a student with disabilities lives. The term includes a surrogate parent who has been appointed in accordance with law but does not include the state if the student is in the conservatorship of the state. Personally identifiable information-Information that includes: (A) the name of the student, the student's parent, or other family member; (B) the address of the student; (C) a personal identifier, such as the student's social security number or student number; or (D) a list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty. Public education agency-The local school district, special education cooperatives, and any other agency or political subdivision of the state responsible for providing education to students with disabilities. Students with disabilities-Those students suspected of or evaluated as possessing one or more disabilities as defined by the Individuals With Disabilities Education Act (IDEA) and implemented by federal and Texas Administrative Code regulations. In this subchapter the term "student" means a student with disabilities, unless the context clearly indicates otherwise. sec.157.3. Applicability. These sections shall apply in any hearing brought under the Individuals With Disabilities Education Act (IDEA) involving the identification, evaluation, or educational placement of a student with disabilities or the provision of a free, appropriate public education to the student. sec.157.4. Request for Hearing. (a) A parent, or eligible student, or public education agency may initiate a hearing on any matter described in sec.157.3 of this subchapter (relating to Applicability). (b) The request for hearing shall be in writing and filed with the Division of Hearings, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701. The request for hearing shall be deemed filed only when actually received by the agency. (c) If the request for hearing does not specify the issues to be heard and the relief requested, the division of hearings shall docket the request and notify the complaining party to supplement the request. sec.157.5. Impartial Hearing Officer. (a) Hearings shall be conducted by an independent, impartial hearing officer appointed by the commissioner of education. The hearing officer selected by the commissioner shall not be a person who: (1) is an employee of a public agency that is involved in the education or care of the student; or (2) has a personal or professional interest that would conflict with his or her objectivity in the hearing. (b) The hearing officer has the authority to administer oaths; call and examine witnesses; make rulings on motions, including discovery and dispositive motions; determine admissibility of evidence and amendments to pleadings; maintain decorum; schedule and recess the proceedings from day to day; and make any other orders as justice requires. (c) If the hearing officer is removed, dies, becomes disabled, or withdraws from an appeal before the completion of duties, the commissioner may designate a substitute hearing officer to complete the performance of duties without the necessity of repeating any previous proceedings. sec.157.6. Hearing Rights. (a) Any party to a hearing shall have a right to: (1) be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of students with disabilities; (2) present evidence and confront, cross-examine, and compel the attendance of witnesses under the Administrative Procedure and Texas Register Act (APTRA), Texas Civil Statutes, Article 6252-13a; (3) prohibit the introduction of any evidence at the hearing that has not been disclosed to the opposing party at least five days before the hearing; (4) obtain a written verbatim record of the hearing; and (5) obtain written findings of fact, conclusions of law, and decision. (b) Parents involved in hearings shall have the right to: (1) have the student who is the subject of the hearing present; and (2) open the hearing to the public. sec.157.7. Prehearing Procedures. (a) The hearing officer shall set and hold a prehearing conference unless the interests of justice require otherwise. The prehearing conference shall be held by telephone unless circumstances require an in person conference. Action taken at the conference shall be recorded in the manner directed by the hearing officer. The prehearing conference shall be for the purpose of considering any of the following: (1) the formulation or simplification of issues; (2) admission of certain assertions of fact or stipulations; (3) the procedure at the hearing on the merits; (4) any limitation of the number of witnesses and the time for presentation of each party's case; and/or (5) such other matters as may aid in the simplification of the proceeding or the disposition of matters in controversy, including the settlement of matters in dispute. (b) No pleadings other than the request for hearing are mandatory, unless ordered by the hearing officer. Any pleadings after the request for hearings shall be filed with the hearing officer. Copies of all pleadings shall be sent to all parties of record in the hearing and the Division of Hearings. If a party is represented by an attorney, all copies shall be sent to the attorney of record. Telephone facsimile copies may be substituted for copies sent by other means. An affirmative statement that a copy of the pleading has been sent to all parties and the Division of Hearings is sufficient to indicate compliance with this rule. (c) Discovery methods shall be limited to those set forth in the Administrative Procedure and Texas Register Act (APTRA) and may be further limited by order of the hearing officer. (d) Upon request of a party to the hearing officer, he or she may issue subpoenas and commissions to take depositions under the APTRA, Texas Civil Statutes, Article 6252-13a, sec.14. Subpoenas and commissions to take depositions shall be issued in the name of the Texas Education Agency. (e) Parties shall comply with the requirement in sec.157.6(a)(3) of this title (relating to Hearing Rights) regarding disclosure of evidence five days before hearing. The hearing officer may specify the date and time that constitute compliance with this rule. Disclosure means providing copies of documentary evidence and an index of such documents, unless otherwise agreed by the parties, and providing the names, addresses, and professions of witnesses. In addition, copies of evidence disclosed under this subsection shall be filed with the hearing officer at least five days before hearing. sec.157.8. Hearing. (a) The hearing officer shall afford the parties an opportunity for hearing after reasonable notice of not less than 10 days, unless the parties agree otherwise. (b) Each hearing shall be conducted at a time and place that are reasonably convenient to the parents and child involved. (c) All persons in attendance shall comport themselves with the same dignity, courtesy, and respect required by the district courts of the State of Texas. All argument shall be made to the hearing officer alone. (d) Before the offer, documents offered into evidence shall be numbered, have pages within each exhibit numbered, and have personally identifiable information deleted. (e) The hearing officer may set reasonable time limits for the presentation of evidence at the hearing. (f) Upon request, the hearing officer at his or her discretion may permit the testimony of experts to be received by telephone. (g) Granting of a motion to exclude witnesses from the hearing room shall be at the hearing officer's discretion. (h) Hearings conducted under these sections shall be closed to the public, unless the parent or eligible student requests that the hearing be open. (i) The hearing shall be recorded and transcribed by a reporter, who shall immediately prepare and transmit a transcript of the evidence to the hearing officer with copies to the parties. The hearing officer shall instruct the reporter and the parties to delete all personally identifiable information from the transcription and from all evidence submitted. (j) Filing of post-trial briefs shall be permitted only upon order of the hearing officer and shall be limited to issues specified by the hearing officer. (k) The hearing officer shall issue a final decision no later than 45 days after a request for hearing is filed. A final decision must be in writing and shall include findings of fact and conclusions of law separately stated. Findings of fact must be based exclusively on the evidence and on matters officially noticed under the Administrative Procedure and Texas Register Act (APTRA), Texas Civil Statutes, Article 6252-13a, sec.14. The final decision shall be mailed to each party by the hearing officer. The hearing officer at his or her discretion may render his or her decision following the conclusion of the hearing, to be followed by written findings of fact and written decision. (l) A hearing officer may grant extensions of time for good cause beyond the period set out in subsection (k) of this section at the request of either party. Such extensions shall be granted to a specific date and shall be set forth in writing by the hearing officer to the parties. (m) The decision made under subsection (k) of this section is final, unless a party brings a civil action under 20 United States Code, sec.1415(e). (n) Under the Individuals With Disabilities Education Act (IDEA) requirements concerning prompt rendering of final decisions, decisions issued under this subchapter shall be final. No motion for rehearing shall be required for a decision to be appealable to court, under the APTRA, Texas Civil Statutes, Article 6252-13a, sec.16(c). The decision shall recite the fact that the public welfare requires immediate effect of the final decision. (o) Under the Texas Rules of Civil Procedure, Rule 298, a party may request, within 10 days after the date of the decision, specified additional or amended findings or conclusions. The hearing officer shall issue any additional or amended findings or conclusions that are appropriate, within the discretion of the hearing officer, within ten days after such request is filed. sec.157.9. Student's Status during Proceedings. (a) During the pendency of any administrative or judicial proceeding regarding a complaint, unless the parties agree otherwise, the student involved in the complaint shall remain in his or her present educational placement. (b) If the complaint involves an application for initial admission to public school, the student, with the consent of the parents where appropriate, shall be placed in the public school program until the completion of all proceedings. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 30, 1992. TRD-9217037 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Earliest possible date of adoption: February 5, 1993 For further information, please call: (512) 463-9701 Subchapter B. Hearings Held under the Texas Proprietary School Act 19 TAC sec.157.21 The new section is proposed under The Texas Education Code, sec.21.501 and sec.32.22; 20 United States Code, sec.1415; and Texas Civil Statutes, Article 4413(29c), sec.4 and sec.17, which authorize the State Board of Education to promulgate rules regarding hearings on proprietary and driver training schools and cases related to students with disabilities. sec.157.21. Hearings Held under the Texas Proprietary School Act. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Administrator-The commissioner of education or a person knowledgeable in the administration of regulating proprietary schools designated by the commissioner to administer the provisions of the Texas Proprietary School Act. (2) Applicant-A party seeking a certificate of approval, an exemption, or a representative's registration from the agency. (3) Licensee-A party who is a holder of a certificate of approval or a representative permit issued by the agency. (b) Applicability. (1) This section shall apply in all appeals brought under the Texas Proprietary School Act, Texas Education Code, Chapter 32. To the extent that this section conflicts with any other sections governing proceedings before the agency, the requirements in this section shall prevail. (2) Should an applicant or licensee be dissatisfied with any of the following acts by the administrator, the applicant or licensee may request a hearing before the administrator: (A) denial of a certificate of approval; (B) revocation of a certificate of approval; (C) conditions imposed upon the continued approval represented by the certificate; (D) refusal to grant an exemption pursuant to the Texas Education Code, sec.32.12; or (E) any other act by the administrator which in the interest of fairness ought to entitle the applicant, licensee, other person to a hearing. (c) Time requirements. (1) Request for hearing. Should a party be dissatisfied with any of the actions of the administrator as described in subsection (b) of this section, the party may, by certified mail or personal service, request a hearing with the administrator within 15 days after receipt of notice of the action. (2) Notice of hearing. Upon receipt of the request for a hearing, the administrator shall set a time and place for the hearing and shall send notice to the party of the time and place. The hearing shall be held within 30 days from the receipt of the request for a hearing. (3) Notice of decision. Within 10 days after the hearing, the administrator shall send a notice of decision to the party bringing the appeal. (d) Other provisions. (1) Petitions for review, as described in sec.157.51 of this title (relating to Petition for Review), and answers, as described in sec.157.52 of this title (relating to Answers), are not required in cases brought under this section. (2) Section 157.58 of this title (relating to Filing of Exceptions and Replies to Proposal for Decision) is not applicable to cases brought under this section. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 30, 1992. TRD-9217038 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Earliest possible date of adoption: February 5, 1993 For further information, please call: (512) 463-9701 Subchapter C. Hearings Held under the Texas Driver and Traffic Safety Education Act 19 TAC sec.157.26 new section is proposed under the Texas Education Code, sec.21.501 and sec.32.22; 20 United States Code, sec.1415; and Texas Civil Statutes, Article 4413(29c), sec.4 and sec.17, which authorize the State Board of Education to promulgate rules regarding hearings on proprietary and driver training schools and cases related to students with disabilities. sec.157.26. Hearings Held under the Texas Driver and Traffic Safety Education Act. (a) Applicability. This section shall apply to all hearings and appeals brought under the Texas Driver and Traffic Safety Education Act, Texas Civil Statutes, Article 4413(29c). To the extent that this section conflicts with any other section governing proceedings before the agency, the requirements of this section will prevail. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Aggrieved party-Any person who has received written notification of an adverse act or intended act of the agency that will affect the legal rights, duties, or privileges of that person. (2) Commissioner-The commissioner of education or a person knowledgeable in the administration of regulating driver training schools and designated by the commissioner to administer the Act. (c) Grounds for hearing. An aggrieved party may request a hearing before the commissioner upon receipt of notification of any of the following adverse acts: (1) the intent to deny, revoke, or suspend a license, exemption, or other approval; (2) the denial of any license, exemption, or application for approval; (3) the imposition of conditions upon the continued licensure of a driver training school, instructor, or other approval; or (4) any act by the agency that the commissioner determines should, in the interest of fairness, entitle the aggrieved party to a hearing. (d) Procedure. (1) To obtain a hearing, an aggrieved party must, within the time required by law, submit a written request for a hearing to the agency representative identified in the written notice of adverse action by either personal delivery or by certified mail, return receipt requested, postage prepaid and properly addressed. (2) A request for hearing must include a specific statement of each issue that the aggrieved party intends to raise in the hearing to contest the adverse act. An aggrieved party may be denied the opportunity to present evidence on issues that reasonably should have been raised in the written request for hearing. (3) Section 157.51 of this title (relating to Petitions for Review) and sec.157.52 of this title (relating to Answers) are not applicable to cases brought under this subchapter. (4) Section 157.58 of this title (relating to Filing of Exceptions and Replies to Proposals for Decision) is not applicable to cases brought under this section. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 30, 1992. TRD-9217039 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Earliest possible date of adoption: February 5, 1993 For further information, please call: (512) 463-9701 Subchapter B. Specific Appeals to the Commissioner 19 TAC sec.sec.157.64-157.68 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Education Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under Senate Bill 1, sec.2.25, 71st Legislature, Sixth Called Session, which authorizes the State Board of Education to review all rules, other than portions of Chapter 75, under Title 19, Texas Administrative Code, relating to public education. sec.157.64. Appeals Brought Pursuant to the Term Contract Nonrenewal Act. sec.157.65. Hearings Concerning Complaints Made to the Teachers' Professional Practices Commission of Texas. sec.157.66. Proceedings Concerning the Suspension or Cancellation of a Certificate or Permit Other Than Proceedings Brought to the Commissioner by the Teachers' Professional Practices Commission. sec.157.67. Hearings Held Pursuant to the Texas Proprietary School Act. sec.157.68. Student Appeals. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 30, 1992. TRD-9217035 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Earliest possible date of adoption: February 5, 1993 For further information, please call: (512) 463-9701 Subchapter D. Hearings Concerning Handicapped Students 19 TAC sec.sec.157.91-157.98 (Editor's note: The text of the following section* proposed for repeal will not be published. The section* may be examined in the offices of the Texas Education Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under Senate Bill 1, sec.2.25, 71st Legislature, Sixth Called Session, which authorizes the State Board of Education to review all rules, other than portions of Chapter 75, under Title 19, Texas Administrative Code, relating to public education. sec.157.91. Purpose. sec.157.92. Definitions. sec.157.93. Applicability. sec.157.94. Request for Hearing. sec.157.95. Impartial Hearing Officer. sec.157.96. Hearing Rights. sec.157.97. Hearing. sec.157.98. Student's Status during Proceedings. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 30, 1992. TRD-9217036 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Earliest possible date of adoption: February 5, 1993 For further information, please call: (512) 463-9701 TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 405. Client (Patient) Care Subchapter K. Client Deaths 25 TAC sec.sec.405.261-405.268, 405.271-405.274 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Mental Health and Mental Retardation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Department of Mental Health and Mental Retardation (TXMHMR) proposes the repeal of sec.sec.405.261-405.268, 405.271-405.274, concerning client deaths. The sections would be replaced by new sec.sec.405.261-405.279, concerning deaths of persons served by TXMHMR facilities or community mental health and mental retardation centers, which is contemporaneously proposed for public comment in this issue of the Texas Register. The sections are proposed for repeal to allow for the proposal of new sections which would provide more comprehensive guidelines for the review of deaths of persons served by the department and community centers. Leilani Rose, director, Office of Financial Services, has determined that for the first five-year period the repeals are in effect there will be no significant fiscal implications for state or local government as a result of repealing the sections as proposed. William Reid, M.D., medical director, has determined that for each year of the first five years the repeals are in effect the public benefit anticipated as a result of enforcing the repeals will be to provide more comprehensive guidelines for the review of deaths of persons served by TXMHMR by recognizing the effectiveness of appropriate and timely data collection; enhancing the quality of death reviews through the identification of clinical and non-clinical issues; and extending the requirements for death reviews to community centers. There will be no effect on small businesses. There is no cost to persons required to comply with the repeals as proposed. There is no significant local economic impact anticipated. Written comments on the proposal may be submitted to Linda Logan, Director, Policy Development, Texas Department Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication. The repeals are proposed under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. sec.405.261. Purpose. sec.405.262. Application. sec.405.263. Definitions. sec.405.264. Action Taken upon Death of a Client on Facility Grounds. sec.405.265. Certificate of Death. sec.405.266. Disposition of Deceased Clients. sec.405.267. Autopsy. sec.405.268. Action Taken upon Death of a Client off Facility Grounds. sec.405.271. Disposition of the Property of Deceased Clients. sec.405.272. Death Review Committee; Review of a Client Death. sec.405.273. Distribution. sec.405.274. References. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 22, 1992. TRD-9216885 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Earliest possible date of adoption: February 5, 1993 For further information, please call: (512) 465-4670 Subchapter K. Deaths of Persons Served by TXMHMR Facilities or Community Mental Health and Mental Retardation Centers 25 TAC sec.sec.405.261-405.278, 405.279 The Texas Department of Mental Health and Mental Retardation (TXMHMR) proposes new sec.sec.405.261-405.278, 405.279, concerning the deaths of persons served by TXMHMR facilities or community mental health and mental retardation centers. The new sections are proposed contemporaneously with the proposed repeal of existing Chapter 405, Subchapter K, concerning client deaths, which the proposed new subchapter would replace. The proposed new sections would provide more comprehensive guidelines for the review of deaths of persons served by the department and community centers. Section 405.261 includes the provisions for a clinical death review and an administrative death review. The purpose and the application of this subchapter would apply to community centers and their contract providers as well as to facilities as stated in sec.405.261 and sec.405.262. In sec.401.463, definitions of "chief executive officer or CEO," "community center," "contract provider," "death review," "deceased," "facility community-based services," and "unusual circumstances" would be added. The definition of "death review" would distinguish between a clinical death review (a death review involving clinical issues) and an administrative death review (a death review involving non- clinical issues). The definition of "investigating officer" would be changed to state that the person chosen must not have been actively involved for at least the preceding six months in the care of the deceased. Section 405. 264 includes the special circumstances in which a nurse can pronounce a person dead and requires the completion and faxing of the Report of the Death of a Person Served form to TXMHMR Central Office. Additional sections would be added requiring facility community-based services and community centers to develop separate clinical peer review and administrative review procedures consistent with this subchapter to be implemented at the time a person receiving services dies on the premises or during activities of a TXMHMR-funded or contracted program. The new sections would require the completion and faxing of the Report of the Death of a Person Served form to TXMHMR Central Office in the case of such a death. The new sections would also describe family notification and the information available to the family of the deceased. In the case of suspected abuse or neglect, language would be added that a report would be made in accordance with the rules of the Texas Department of Protective and Regulatory Services. As outlined in sec.405.270, the membership of a facility clinical death review would include the clinical/medical director, the director of nursing, the attending physician, the director of clinical quality assurance, and other clinical professionals as deemed appropriate. Section 405.270 also requires the clinical death review committee to solicit an external physician as a member. Section 405.274 describes the membership of the community center's clinical death review committee and also requires the solicitation of external membership. Section 405.269 describes the types of circumstances surrounding a death which would require a mandatory administrative death review. Section 405.271 and sec.405.272 would state that after appointment, the investigating officer would proceed with a preliminary investigation. At facilities, the determination of the need for a clinical death review would be made by the facility CEO, chair of the clinical death review committee, and the investigating officer, using the death/discharge summary and the preliminary investigation findings. At community centers, the determination would be made by the community center CEO and the investigating officer using the preliminary investigation information. The clinical death review procedures for community centers in sec.405.274 are comparable to the clinical death review procedures for facilities in sec.405.273. The clinical death review recommendations would be forwarded to the administrative death review committee along with other death review related elements. To maintain the effectiveness of the death review process, the TXMHMR medical director or designee would conduct routine, on-site reviews of facility and community center's clinical death review process. Section 405. 275 describes the administrative death review duties and the membership of the administrative death review committee, which would involve external membership. The administrative death review committee recommendations, along with the clinical death review recommendations and other death review related elements, would be submitted to the TXMHMR medical director who would provide a copy to the appropriate deputy commissioner. A new section would be added which would require the TXMHMR medical director to report to the Texas Board of Mental Health and Mental Retardation any systemic issues emerging from the death reviews. The new section would also require the community center CEO to report to the community center board of trustees any systemic issues emerging from its death reviews. Leilani Rose, director, Office of Financial Services, has determined that for the first five-year period the sections are in effect there will be no additional fiscal cost to state or local government as a result of administering the new sections. William Reid, M.D., medical director, has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be to provide more comprehensive guidelines for the review of deaths of persons served by TXMHMR by recognizing the effectiveness of appropriate and timely data collection; enhancing the quality of death reviews through the identification of clinical and non-clinical issues; and extending the requirements for death reviews to community centers. There will be no effect on small businesses. There will be no significant local economic impact. There is no anticipated cost to persons required to comply with the new sections as proposed. Comments on the proposed new sections may be submitted to Linda Logan, Director, Policy Development, Texas Department Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication. The new sections are proposed under the Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. sec.405.261. Purpose. The purpose of this subchapter is to provide clinical peer review procedures and, separately, administrative review procedures to be followed upon the death of a person receiving services directly operated or contracted for by a facility of the Texas Department of Mental Health and Mental Retardation or a community mental health and mental retardation center, and their respective contract providers, in order to improve the quality of care. sec.405.262. Application. The provisions of this subchapter apply to all facilities of the Texas Department of Mental Health and Mental Retardation; to community mental health and mental retardation centers; and to their respective contract providers. sec.405.263. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Attending physician -A physician licensed to practice medicine in the State of Texas who is responsible for the general medical care of the person served. Chief executive officer or CEO-The superintendent or director of a state facility or the executive director of a community center. Community center -A community mental health and mental retardation center organized pursuant to Texas Health and Safety Code, Title 7, Chapter 534, sec.053 (formerly the Texas Mental Health and Mental Retardation Act, sec.3, as amended, Texas Civil Statutes, Article 5547-201 et seq). Contract provider -An entity which, through written agreement or contract, is providing services to a person served by a facility or a community center, including entities regulated by other governmental agencies. Death review-A clinical quality assurance/peer review activity conducted to identify clinically related problems requiring correction and opportunities to improve the quality of care pursuant to the statutes that authorize peer review activities in the State of Texas or an administrative/quality assurance review activity to identify non-clinically related problems requiring correction and opportunities to improve the quality of care. Deceased-A person who, at death, is receiving services directly operated or contracted for by a facility or community center. Department-The Texas Department of Mental Health and Mental Retardation. Duty physician -The physician designated by the chief executive officer to handle medical care or emergencies outside regular working hours. Facility-Any state hospital, state school, state center, or other entity which is now or may hereafter be made a part of the department. Facility community-based services-Community service residential and nonresidential programs under the jurisdiction of a facility. Investigating officer -A physician or nurse who, for at least the preceding six months, was not actively involved in or responsible for the direct care of the deceased. Person in charge -The employee designated as supervisor for a dorm, ward, or other program or residence area. Registered nurse -A nurse licensed by the Texas Board of Nurse Examiners to practice professional nursing in the State of Texas. Unusual circumstances -A death which occurs under circumstances including, but not limited to, the following: unnatural death; death by unlawful means or suspicion of death by unlawful means; absence of witnesses; suicide or suspicion of suicide; or death within 24 hours of admission to the facility. sec.405.264. Facility Campus-Based Programs: Actions Taken upon the Death of Person Served. (a) Death occurring on facility grounds. (1) When a death occurs, the person in charge shall immediately notify the attending or duty physician and the registered nurse, as appropriate. (2) The person in charge or registered nurse, as appropriate, shall perform the following activities and document them in the progress flow sheet or progress notes of the person's record: (A) the date, time, and location where the person was found, and the events immediately preceding and/or leading to the person's death; (B) the name of the physician notified, the time and date of notification, and the name of the employee making notification; (C) the names of persons who observed the person dying or who found the person; (D) any emergency procedures initiated; and (E) complete the Client Injury/Incident Report if the death was related to an injury. (3) The attending or duty physician shall: (A) identify, examine, and pronounce the person dead (see paragraph (4) of this subsection); (B) make notation of: (i) the date, the time, and if known, the probable cause of death; (ii) the time and by whom the physician was notified of the person's condition; (iii) the treatment, if any, administered to the person immediately prior to death; and (iv) any information given by other individuals who were present at the time of death; (C) determine whether the death occurred under unusual circumstances and whether the cause of death is uncertain; and (D) perform the following activities or delegate them and ensure completion and documentation: (i) notify the facility CEO or the administrative duty officer and the chairperson of the death review committee; (ii) if the cause of death is uncertain or if the death occurred under unusual circumstances, immediately notify the appropriate justice of the peace or county medical examiner and request an inquest; and (iii) arrange for the notification of a funeral home of the family's and/or guardian's choice to which the decedent is to be released. (4) In some cases, a registered nurse may pronounce a person dead and determine the date and time of death. In such instances, the registered nurse must ensure the accurate documentation of the requirements indicated in paragraph (2) of this subsection. (A) In order for a registered nurse to pronounce a person dead the following conditions must be met: (i) the registered nurse is privileged, in writing, by the facility to pronounce a person dead; (ii) the person is classified either in Category II or Category III according to Subchapter C of this chapter (relating to Life-Sustaining Treatment); (iii) the person is not being treated with artificial means of supporting the respiratory and circulatory system; (iv) the cause of death is determined not to be uncertain or to have occurred under unusual circumstances; (v) the facility has a written policy and procedure, jointly developed and approved by the nursing staff and medical staff, governing the practice of registered nurses pronouncing death. (B) The registered nurse shall complete the activities described in paragraph (3)(D)(i) and (iii) of this subsection. (C) When a registered nurse has pronounced a person dead, a physician shall within 24 hours complete the activities described in paragraph (3)(D)(ii) of this subsection and complete the death certificate. (5) The facility CEO or designee shall notify the decedent's primary or emergency correspondent(s) of the death; request an autopsy; provide an explanation of the circumstances surrounding the death; and inform them of their right to examine the decedent's medical information relevant to the death, death certificate, and autopsy findings, if any. (6) The attending or duty physician, as appropriate, shall complete the Report of the Death of a Person Served form, which herein is adopted by reference as Exhibit A, copies of which may be obtained by contacting TXMHMR, Office of Policy Development, P.O. Box 12668, Austin, Texas 78711. Within one working day of each death, the facility CEO shall be responsible for ensuring the completed reporting form (Exhibit (A)) is faxed to the Office of Medical Services, Central Office, which shall be responsible for immediately transmitting the information to the appropriate deputy commissioner. The facility CEO should also initiate direct phone contact with the appropriate deputy commissioner or designee when warranted. (b) Death occurring off facility grounds. Death occurring off facility grounds shall be reported as required in subsection (a)(5) and (6) of this section and reviewed as required in s405.269 of this title (relating to Facility Campus- Based Programs, Facility Community-Based Services, and Community Centers: Administrative Death Review Determination). sec.405.265. Facility Community-Based Services: Actions Taken upon the Death of Person Served. (a) Each facility community-based services shall develop separate clinical peer review and administrative review procedures consistent with this subchapter to be implemented at the time that a person receiving services dies on the premises or during activities of a TXMHMR-funded or contracted program. (b) Upon the knowledge of such a death as described in subsection (a) of this section, the facility CEO or designee shall notify the decedent's primary or emergency correspondent(s) of the death; request an autopsy; provide an explanation of the circumstances surrounding the death; and inform him or her of his or her right to examine the decedent's medical information relevant to the death, death certificate, and autopsy findings, if any. (c) Within one working day of such a death as described in subsection (a) of this section, the facility CEO shall be responsible for ensuring the completed reporting form (attached to sec.405. 264 of this title (relating to Facility Campus-Based Programs: Actions Taken upon the Death of Person Served) as Exhibit (A) is faxed to the Office of Medical Services, Central Office, which shall be responsible for immediately transmitting the information to the appropriate deputy commissioner. The facility CEO should also initiate direct phone contact with the appropriate deputy commissioner or designee when warranted. sec.405.266. Community Centers: Actions Taken Upon the Death of Person Served. (a) Each community center shall develop separate clinical peer review and administrative review procedures consistent with this subchapter to be implemented at the time that a person receiving services dies on the premises or while participating in a community center sponsored activity. (b) Upon the knowledge of such a death as described in subsection (a) of this section, the community center CEO or designee shall notify the decedent's primary or emergency correspondent(s) of the death; request an autopsy; provide an explanation of the circumstances surrounding the death; and inform them of their right to examine the decedent's medical information relevant to the death, death certificate, and autopsy findings, if any. (c) Within one working day of such a death as described in subsection (a) of this section, the community center CEO shall be responsible for ensuring the completed reporting form (attached to sec.465.264 of this title (relating to Facility Campus-Based Programs: Actions Taken Upon the Death of Person Served) this subchapter as Exhibit A) is faxed to the Office of Medical Services, Central Office, which shall be responsible for immediately transmitting the information to the appropriate deputy commissioner. The community center CEO should also initiate direct phone contact with the appropriate deputy commissioner or designee when warranted. sec.405.267. Facility Campus-Based Programs and Facility Community-Based Services: Statutory Requirements. (a) Certificate of death. A certificate of death is required for every death which occurs in the state. When possible a copy of the certificate of death shall be made a part of the deceased person's record. Any additional findings that would reflect on the information contained in the original certificate should be amended and refiled as required and a copy retained in the deceased person's record. (1) The individual responsible for interment or for removal of the body of the deceased for disposition is responsible for obtaining and filing the certificate of death. (2) Medical certification of death will be made by the appropriate physician. The certificate of death shall document the disease(s), injuries, or complications that caused the death rather than the mode of dying, e.g., cardiac arrest, respiratory arrest, shock, heart failure, etc. (b) Autopsy. An autopsy is recommended whenever possible providing that appropriate consent can be obtained. When possible, autopsy reports shall be made a part of the deceased person's record. (1) The physician must request permission for an autopsy and document the request in the deceased person's record when: (A) the death occurred under unusual circumstances or the cause of death is uncertain; or (B) the autopsy would clarify the diagnosis and efficacy of treatment choices. (2) Consent for autopsy will be deemed sufficient when obtained under the provisions of Texas Code of Criminal Procedures, Article 49.13, and TXMHMR Operating Instruction 405-K, Deaths of Persons Served, which herein is adopted by reference as Exhibit B, copies of which may be obtained by contacting TXMHMR, Office of Policy Development, P.O. Box 12668, Austin, TX 78711. (3) The person from whom consent for autopsy is sought shall be given an explanation of what an autopsy is and why an autopsy is appropriate or desirable. (c) Disposition of deceased persons. If burial at public expense is necessary, or if the body of the deceased is not claimed for burial, a report to that effect must be made to the Anatomical Board of the State of Texas. (1) If burial is to take place at no expense to the state, e.g., prepaid burial contract or designated funds in the deceased person's trust fund, then a report need not be made to the Anatomical Board provided the body is claimed. (2) To claim the body for burial, an individual must provide documentation to the facility CEO which proves the individual is: (A) related to the deceased by blood or marriage; (B) a bona fide friend; or (C) representative of an organization of which the deceased was a member. (3) If efforts to contact the family and/or guardian of the deceased prove futile, a report must be made to the Anatomical Board. (4) If the family and/or guardian is notified of the death, but the body remains unclaimed 48 hours after the notification, a report must be made to the Anatomical Board. (5) If the body of the deceased is released to the Anatomical Board, the facility CEO or designee must file with the county clerk an affidavit that a diligent inquiry was made to find the family and/or guardian of the deceased. The affidavit will detail the manner of the attempts at notification. A copy of the affidavit will be retained in the deceased person's record. (d) Disposition of the property of deceased persons. When appropriate, the property of the decedent will be disposed of under the provisions of the Texas Probate Code. When no claim is made, the property of the decedent, including clothing, personal effects, and trust funds, shall be disposed of under the provisions of the Texas Health and Safety Code, sec.sec.551.003, 551.004, 551.005 and 551.044 (formerly Texas Civil Statutes, Article 3183c). sec.405.268. Community Centers: General Guidelines upon Death of a Person Served. (a) When a person receiving services dies on the premises or while participating in a community center sponsored activity, a copy of the certificate of death shall be made a part of the deceased's record, when possible. Any additional findings that would reflect on the information contained in the original certificate should be amended and refiled as required and a copy retained in the deceased's record. (b) When appropriate, the property of the deceased person will be disposed of under the provisions of the Texas Probate Code. sec.405.269. Facility Campus-Based Programs, Facility Community-Based Services and Community Centers: Administrative Death Review Determination. (a) Within one working day of the knowledge of death of a person receiving services in a TXMHMR-funded or TXMHMR-contracted program, the facility or community center CEO is responsible for conducting a preliminary review to determine whether: (1) the death occurred on the premises of a TXMHMR-funded or TXMHMR- contracted program; (2) the death occurred while the person was participating in TXMHMR-funded or TXMHMR-contracted program activities; (3) other conditions indicate that the death may reasonably have been related to the individual's care or activities as part of the facility community-based or community center program; or (4) other conditions indicate that although the death is not reasonably related to the individual's care or activities as part of the facility community-based or community center program, an evaluation of policy is warranted. (b) If none of the conditions described in subsection (a) of this section is true, the facility or community center CEO may elect not to conduct an administrative death review. (c) If any of the conditions described in subsection (a) of this section are true, an administrative death review must be conducted. In addition, the need for a clinical death review must be determined as described in sec.405.271 of this title (relating to Facility Campus-Based Programs and Facility Community- Based Services: Clinical Death Review Determination) or in sec.405.272 of this title (relating to Community Centers: Clinical Death Review Determination). sec.405.270. Facility Campus-Based Programs and Facility Community-Based Services: Clinical Death Review Committee. (a) Each facility shall maintain a clinical death review committee which shall be a medical peer review body responsible for reviewing deaths and the quality of care delivered prior to each death reviewed by that committee. (b) The purpose of the committee is: (1) to review the quality and appropriateness of medical care and other medically related services rendered prior to the death; and (2) to recommend, when appropriate, changes in medically related policy and procedure, professional education, clinical operations, or patient care. (c) The clinical death review committee shall be chaired by a physician and include representatives of the following functions listed, which in some circumstances may be staffed by the same individual, e.g., the clinical/medical director may be the attending physician as well: (1) the clinical/medical director or designee, who shall serve as chair provided that person is not the attending physician (the facility CEO will appoint a replacement chair when the chair of the clinical death review committee is the attending physician); (2) the director of nursing or registered nurse designee; (3) the attending physician; (4) the director of clinical quality assurance, designee, or the person who carries out clinical quality assurance functions; and (5) other medical/nursing professionals as deemed appropriate by the committee chair, e.g., the duty physician at the time of the death; etc. (d) The clinical death review committee shall solicit a physician external to TXMHMR to participate as a member of the clinical death review committee. If such physician is not available, then the effort to obtain external membership must be documented in the information sent to the administrative death review committee. sec.405.271. Facility Campus-Based Programs and Facility Community-Based Services: Clinical Death Review Determination. (a) Upon notification of a death requiring an administrative death review, the chairperson of the clinical death review committee shall appoint a member of the clinical death review committee or a qualified medical/nursing professional from outside the facility to serve as an investigating officer. The investigating officer shall not be the attending physician or anyone who, for at least the preceding six months, was actively involved in or responsible for the direct care of the deceased. The investigating officer must be either: (1) a physician (M.D., D.O.); or (2) a registered nurse. (b) After appointment, the investigating officer shall begin a preliminary investigation based upon the decedent's medical record and other information he/she deems appropriate. (c) Within five working days of the knowledge of death, the appropriate physician shall complete a death/discharge summary for the medical record. The death/discharge summary shall include: (1) identifying information, including: (A) name; (B) case number; (C) date of birth; (D) sex; (E) date and type of most recent admission; and (F) date, time, and location of death; (2) a summary of the medical history; (3) a summary of active medical problems; (4) significant recent laboratory and procedural findings; (5) a summary of recent pertinent medical consultations; (6) clinical factors leading up to the terminal event and a review of the clinical circumstances surrounding the death, or circumstances leading to the transfer to another facility or outpatient status where death occurred, i.e., all pertinent notes, procedures, medications, resuscitation category status, and pertinent quality of life issues; (7) preliminary autopsy findings, if available; and (8) additional clinically related information which may be furnished by other staff. (d) Within 14 calendar days of the knowledge of death, the facility CEO, chair of the clinical death review committee, and investigating officer shall use the preliminary investigation information and the death/discharge summary to determine whether the death should be reviewed clinically prior to the required administrative death review. (e) If it has been determined that a clinical death review is unnecessary, then the chair of the clinical death review committee shall forward to the administrative death review committee the following: (1) the preliminary investigation information; (2) a copy of the death/discharge summary; (3) a copy of the death certificate, bearing a valid diagnosis, if available; and (4) the probable final diagnosis, including contributory causes, and reasons for variance from the death certificate, if available. sec.405.272. Community Centers: Clinical Death Review Determination. (a) Upon notification of a death requiring an administrative review, the community center CEO or designee appoints a physician or registered nurse as the investigating officer who shall begin a preliminary investigation based upon the decedent's medical record and other information he/she deems appropriate. (b) Within 14 calendar days of the knowledge of death, the community center CEO and investigating officer shall use the preliminary investigation information to determine whether the death should be reviewed clinically prior to the required administrative death review. (c) If it has been determined that a clinical death review is unnecessary, then the investigating officer shall forward to the administrative death review committee the following: (1) the preliminary investigation information; (2) a copy of the death/discharge summary; (3) a copy of the death certificate, bearing a valid diagnosis, if available; (4) a copy of the preliminary or full autopsy report, if available; and (5) the probable final diagnosis, including contributory causes, and reasons for variance from the death certificate, if available. sec.405.273. Facility Campus-Based Programs and Facility Community-Based Services: Clinical Death Review. (a) Upon determination of the need for a clinical death review, the investigating officer shall provide to the clinical death review committee: (1) a copy of the death certificate, bearing a valid diagnosis; (2) a copy of the preliminary or full autopsy report, if available; and (3) the probable final diagnosis, including contributory causes, and reasons for variance from the death certificate; and (4) a briefing of possible issues involving clinically related facility operational policies and procedures and quality of medical care. (b) Within 14 calendar days (or 45 days in which an autopsy is performed, or for deaths occurring at medical facilities off campus) of the determination of the need for a clinical death review the clinical death review committee shall meet to review the death/discharge summary, the decedent's medical record, and the information the investigating officer has provided as described in subsection (a)(1)-(4) of this section. On the basis of the review, the committee shall evaluate the quality of medical and nursing care given prior to death and shall formulate written recommendations, if appropriate, for changes in policy and procedures, professional education, operations, or patient care. Suspected abuse or neglect must be reported in accordance with the rules of the Texas Department of Protective and Regulatory Services. (c) Within 21 calendar days of the determination of the need for a clinical death review (or 52 days in cases in which an autopsy is performed, or for deaths occurring at medical facilities off campus), the clinical death review committee shall submit to the administrative death review committee the following: (1) the clinical death review recommendations; (2) a copy of the death/discharge summary; (3) a copy of the death certificate, bearing a valid diagnosis; (4) the probable final diagnosis, including contributory causes, and reasons for variance from the death certificate; and (5) documentation of the effort to obtain a physician external to TXMHMR to participate as a member of the clinical death review committee, if no such physician was available. (d) To maintain the effectiveness of the death review process, the TXMHMR medical director or designee shall conduct routine, on-site reviews of each facility's clinical death review process. (e) The facility CEO is authorized to grant variances from the timelines by this section on a case-by-case basis. Reasons for timeline variances must be justified and documented. sec.405.274. Community Centers: Clinical Death Review. (a) Each community center shall develop and implement procedures consistent with this subchapter for the timely reporting and review of deaths. (b) Deaths subject to a clinical death review will be reviewed by a committee consisting of three medical/nursing professionals (M.D., D.O., R.N.), one of which should be a medical professional whom is neither an employee of the community center nor was the decedent's attending physician (if such medical professional is not available, then the effort to obtain external membership must be documented in the information sent to the administrative death review committee). Of the three committee members, all must be either medical doctors or registered nurses. For the purposes of this subchapter the term employee does not refer to consultants or contractors. (1) Within 14 calendar days (or 45 days in which an autopsy is performed, or for deaths occurring at medical facilities to which the person was transferred prior to death) of the determination of the need for a clinical death review as described in sec.405. 272 of this title (relating to Community Centers: Clinical Death Review Determination) a review will be made of the quality and appropriateness of medical and nursing care given prior to death. The review shall include: (A) the individual's medical record; (B) the individual's active medical problems; (C) significant recent laboratory and procedural findings; (D) recent pertinent medical consultations; (E) clinical factors leading up to the terminal event and a review of the clinically related circumstances surrounding the death, or circumstances leading to the transfer to another facility where death occurred, i.e., all pertinent notes, procedures, medications, resuscitative status category, and pertinent quality of life issues; (F) additional clinically relevant information which may be furnished by other staff; (G) the death certificate, bearing a valid diagnosis; (H) the preliminary or full autopsy report, if available; and (I) the probable final diagnosis, including contributory causes, and reasons for variance from the death certificate. (2) On the basis of the review, the clinical death review committee shall formulate written recommendations, if appropriate, regarding clinical policies and procedures, professional education, clinical operations, and patient care. Suspected abuse or neglect must be reported in accordance with rules of the Texas Department of Protective and Regulatory Services. (c) Within 21 calendar days of the determination of the need for a clinical death review (or 52 days in cases in which an autopsy is performed, or for deaths occurring at medical facilities to which the person was transferred prior to death), the clinical death review committee shall submit to the administrative death review committee the following: (1) the clinical death review committee's recommendations; (2) a copy of the elements listed in subsection (b)(1)(A)-(I) of this section; and (3) documentation of the effort to obtain an external medical professional, if no such person was available. (d) To maintain the effectiveness of the death review process, the TXMHMR medical director or designee shall conduct periodic, on-site reviews of the community center's clinical death review process. (e) The community center CEO is authorized to grant variances from the timelines by this section on a case-by-case basis. Reasons for timeline variances must be justified and documented. sec.405.275. Facility Campus-Based Programs, Facility Community-Based Services, and Community Centers: Administrative Death Review. (a) Immediately after the receipt of the information from the clinical death review committee as described in sec.405.273(c) or sec.405.274(c) of this title or, if a clinical death review was not conducted, immediately after the determination of the need for an administrative death review, the facility or community center CEO shall convene an administrative death review committee. (b) The membership of the administrative death review committee shall consist of: (1) three senior administrative and medical personnel, e. g., CEO, medical director, director of nursing, director of quality assurance, etc.; (2) a representative of the public, external to TXMHMR and not related to or associated with the deceased, e.g., a member of the public responsibility committee; a member of the facility or community hospital's Ethics Committee; a family member; advocate; consumer; etc.; and (3) other individuals appropriate to the death being reviewed. (c) The purpose of the administrative death review committee is to: (1) review the information and recommendations provided by the clinical death review committee; (2) review operational policies and procedures and continuity of care issues which may have affected the care of the individual and formulate written recommendations for changes in policies and procedures, if appropriate; and (3) act upon the recommendations described in paragraphs (1) and (2) of this subsection. (d) If a clinical death review was not conducted and information presented during the administrative review indicates the need for a clinical death review, then the administrative death review committee has the authority to request a clinical death review. (e) Suspected abuse or neglect must be reported in accordance with the rules of the Texas Department of Protective and Regulatory Services. (f) Within 14 calendar days of the determination of the need for an administrative death review (or 45 days in cases in which an autopsy is performed, or for deaths occurring at medical facilities off campus or for deaths occurring at medical facilities to which the person was transferred prior to death) or within 14 calendar days after the receipt of the information from the clinical death review committee, the administrative death review committee shall submit the following elements to the TXMHMR medical director (who shall forward a copy to the appropriate deputy commissioner): (1) a copy of the death/discharge summary; (2) a copy of the death certificate, bearing a valid diagnosis, if available; (3) a copy of the preliminary or full autopsy report, if available; (4) the probable final diagnosis, including contributory causes, and reasons for variance from the death certificate, if available; (5) a copy of the clinical death review committee's recommendations, if applicable; (6) a copy of the administrative death review committee's recommendations; and (7) if applicable, documentation of the effort to obtain external membership for the clinical death review committee, if no such medical professional was available. (g) A summary of the resulting actions taken in response to the recommendations of the administrative and clinical death review committees shall be forwarded to the TXMHMR medical director (who shall forward a copy to the appropriate deputy commissioner), within 28 calendar days following the submission of the elements contained in subsection (f)(1)-(7) of this section. sec.405.276. Reporting of Systemic Issues Emerging from Death Reviews (a) Utilizing information gathered from the elements submitted by the administrative death review committees and periodic on-site reviews of facility and community center's clinical death review process, the TXMHMR medical director shall report to the Texas Board of Mental Health and Mental Retardation any systemic issues emerging from death reviews, on a routine basis or when necessary. (b) Utilizing information gathered from the elements submitted by the administrative death review committees to the TXMHMR medical director, the community center CEO shall report to the community center's board of trustees any systemic issues emerging from death reviews, on a routine basis or when necessary. sec.405.277. Distribution. (a) The provisions of this subchapter concerning deaths will be distributed to members of the Texas Board of Mental Health and Mental Retardation; medical director, deputy commissioners, associate deputy commissioners, assistant deputy commissioners, management and program staff of Central Office; Chief Executive Officers of all TXMHMR facilities; and Chief Executive Officers and chairpersons of the boards of trustees of all community centers. (b) The facility CEO shall be responsible for the dissemination of the information contained in this subchapter to all appropriate staff members and to contract providers of services. sec.405.279. References. Reference is made to the following: (1) Texas Code of Criminal Procedures, Article 49; (2) Attorney General Opinion Number C-762; (3) Chapter 405, Chapter C of this title, relating to Life-Sustaining Treatment; (4) Chapter 403, Subchapter K of this title (relating to Client-Identifying Information); (5) Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services); (6) Chapter 405, Subchapter Y of this title (relating to Client Rights-Mental Retardation Services); (7) Texas Health and Safety Code, Chapters 532-534; (8) Texas Heath and Safety Code, Chapter 691 of Subtitle B, relating to death and disposition of a deceased person; (9) Texas Health and Safety Code, Chapter 551, Sections .003, .004, .005, and .044; (10) Texas Probate Code; and (11) Rules of the Texas Department of Protective and Regulatory Services. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 22, 1992. TRD-9216887 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Earliest possible date of adoption: February 5, 1993 For further information, please call: (512) 465-4670 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 10. Family Self-Support Services Eligibility Determination The Texas Department of Human Services (DHS) proposes amendments to sec.sec.10.1009 and 10.3464, concerning determination and redetermination of income eligibility for child care and development block grant funded child care in its Family Self-Support Services chapter. The purpose of the amendments is to increase access to child care services for teen parents who need child care in order to complete high school. Burton F. Raiford, commissioner, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Raiford also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be that more teen parents will have child care services while finishing high school. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed sections. Questions about the content of this proposal may be directed to Beverly Duffee at (512) 450-4172 in DHS's Self-Support Services program. Comments on the proposal may be submitted to Nancy Murphy, Policy and Document Support-249, Texas Department of Human Services E-503, P.O. Box 149030, Austin, Texas 78714- 9030, within 30 days of publication in the Texas Register . 40 TAC sec.10.1009 The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 44, which authorizes the department to administer public assistance and day care programs. sec.10.1009. Determination and Redetermination of Income Eligibility. (a) Family planning and day care are the only family self-support services that use income as a criterion for eligibility when other categories of eligibility do not apply. (1) (No change.) (2) To determine a client's eligibility for day care services based on income, DHS or contracted provider staff must : (A) determine that the client's total gross income is equal to or less than 150% of the applicable, current federal poverty income guidelines; or
    [.] (B) for teen parents who need child care in order to complete high school, determine that the client's total gross income is equal to or less than 200% of the applicable, current federal poverty income guidelines. (b) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 30, 1992. TRD-9217041 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: March 1, 1993 For further information, please call: (512) 450-3765 Child Care Management Services Statewide Implementation 40 TAC sec.10.3464 The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 44, which authorizes the department to administer public assistance and day care programs. sec.10.3464. Eligibility for Child Care and Development Block Grant (CCDBG) Funded Child Care. The Texas Department of Human Services (DHS) uses Child Care and Development Block Grant (CCDBG) funds to purchase child care for clients who meet the requirements stated for the following client groups: (1) (No change.) (2) children of teen parents whose family income is below 200%
      [150%] of the FPIL and who need child care in order to complete high school or the equivalent [, as specified in sec.10.3414 of this title (relating to Exceptions to Eligibility). These children will continue to receive child care for one year after the family income exceeds 150% of the FPIL, provided the family income remains below 185% of the FPIL;]. (3)-(5) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 30, 1992. TRD-9217042 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: March 1, 1993 For further information, please call: (512) 450-3765 Chapter 48. Community Care for Aged and Disabled Case Management 40 TAC sec.48.3903 The Texas Department of Human Services (DHS) proposes an amendment to sec.48.3903, concerning denial, reduction, and termination of benefits, in its Community Care for Aged and Disabled (CCAD) chapter. The purpose of the amendment is to require 12 days' advance written notice of adverse action, regardless of whether the notice is given or mailed to the client. Burton F. Raiford, commissioner, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Raiford also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be a simpler policy that provides all clients with 12 days' advance notice. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed section. Questions about the content of the proposal may be directed to Armando Delgado at (512) 450-3217 in DHS's Community Care Section. Comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-309, Texas Department of Human Services E-503, P.O. Box 149030, Austin, Texas 78714- 9030, within 30 days of publication in the Texas Register. The amendment is proposed 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.48.3903. Denial, Reduction, and Termination of Benefits. (a) An applicant or client may request an appeal of any decision that denies, reduces, or terminates his benefits. The effective date of the action depends on the situation, as shown in the following table: [graphic] (b)-(f) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 28, 1992. TRD-9216990 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: March 1, 1993 For further information, please call: (512) 450-3765 Chapter 79. Legal Services Subchapter S. Contracting Ethics The Texas Department of Human Services (DHS) proposes amendments to sec.sec.79.1801 and 79.1802, proposes the repeal of ssec.79.1803-79.1807, and proposes new sec.sec.79.1803-79.1806 concerning contracting ethics, in its Legal Services rules. The purpose for the amendments, repeals, and new sections is to update DHS's contracting ethics rules by simplifying the wording and by deleting references to statutory restrictions and notice requirements that no longer exist. The rules are amended to limit their application to situations other than enrollment contracts. Burton F. Raiford, commissioner, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the proposal. Mr. Raiford also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be that DHS's contracting ethics rules will be current and easier to comprehend. There is no anticipated economic cost to persons who are required to comply with the proposal. Questions about the content of the proposal may be directed to Glenn Scott at (512) 450-3119 in DHS's Office of the General Counsel. Comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support- 322, Texas Department of Human Services E-503, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register. 40 TAC sec.79.1801, sec.79.1802 The amendments are proposed under the Human Resources Code, Title 2, sec.21.0031, which restricts Board membership and employment, and sec.22.002, which provides the department with the authority to administer federal welfare programs. sec.79.1801. Introduction.
        Sections 79.1802-79.1806
          [79.1807] of this subchapter specify the standards by which the Texas Department of Human Services awards contracts for goods, services, and products to nongovernmental organizations. sec.79.1802. Definitions.
            The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise: Current Board member-A
              [Any] person presently a member of the Texas Board of Human Services. Current employee -A
                [Any] person presently employed by the Texas Department of Human Services (DHS). Former Board member-A former
                  [Any person who was a member of the] Texas Board of Human Services member
                    [and] whose last date of service was within the immediately preceding two years
                      [on or after September 1, 1987]. Former employee -A former DHS employee
                        [Any person who was an employee of DHS and] whose last date of service was within the immediately preceding two years
                          [on or after September 1, 1987]. Organization-An entity (for profit or nonprofit)
                            [Any form of for profit business or nonprofit entity] including, but not limited to, corporations, sole proprietorships, partnerships and unincorporated associations, but excluding any governmental entity. Relative-A current or former DHS Board member's or current or former employee's spouse, father, mother, sister, son or stepson, daughter or stepdaughter, mother-in-law, father-in-law, sister-in-law, brother-in-law, son- in-law, or daughter-in-law.
                              [Any of the following: [(A) wife; [(B) husband; [(C) father; [(D) mother; [(E) brother; [(F) sister; [(G) son; [(H) daughter; [(I) stepdaughter; [(J) stepson; [(K) mother-in-law; [(L) father-in-law; [(M) spouse's sister; [(N) spouse's brother.] Substantial financial interest-Ownership or control by a former employee (or relative) or a former DHS Board member (or relative) of 10% or more of the contracting firm or its stock or an investment of $2,500 or more in the organization, whichever is less; or receipt of a 25% or more increase in overall annual benefits, including salary or wages, upon employment by a contractor of a former employee who held one of the positions listed under the definition in this section of "substantial involvement in the development of the contract," as compared to the employee's DHS salary and benefits. Substantial involvement in the development of the contract-Direct or indirect participation by a former employee (or relative) or a former DHS Board member (or relative) in the development of program policy which influenced the type of services provided by the contracting organization. The following positions are assumed to have had such participation: Board member, commissioner, deputy commissioner, associate commissioner, assistant commissioner, regional administrator, assistant regional administrator, regional director, program manager, attorney, business officer (when the contract is of the type handled by the business manager), and (when they are in the same program area) contract manager, program specialist, and contract specialist. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 30, 1992. TRD-9217043 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: March 1, 1993 For further information, please call: (512) 450-3765 40 TAC sec.sec.79.1803-79.1807 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Human Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Human Resources Code, Title 2, sec.21. 0031, which restricts Board membership and employment, and sec.22.002(f), which provides the department with the authority to administer federal welfare programs. sec.79.1803. Prohibition Against Contracts with Certain Former Employees. sec.79.1804. Presumption Against Contract Involving Former Employees, Former Board Members, and Their Relatives. sec.79.1805. Contracts Involving Current Employees. sec.79.1806. Contracts Involving Current Board Members. sec.79.1807. Nongovernmental Contractor Certification. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 30, 1992. TRD-9217044 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: March 1, 1993 For further information, please call: (512) 450-3765 40 TAC sec.sec.79.1803-79.1806 The new sections are proposed under the Human Resources Code, Title 2, sec.21.0031, which restricts Board membership and employment, and sec.22.002(f), which provides the department with the authority to administer federal welfare programs. sec.79.1803. Presumption Against Contracts Involving Former Employees, Former Board Members, and Their Relatives. (a) Paragraphs (1) and (2) of this subsection govern the award of Texas Department of Human Services (DHS) contracts. (1) If a former DHS Board member or a former employee who was paid a salary equal to, or above DHS's pay group 17, step 1, of the position classification salary schedule, participated in a particular matter during their period of employment or Board membership, either through personal involvement or because the matter was within the former employee's or former Board member's official responsibility, that former Board member or former employee may not represent any person or receive compensation for services rendered on behalf of any person regarding that matter, nor may contracts relating to that matter be awarded to that person. The DHS commissioner reviews the circumstances surrounding the proposed representation or award of the contract and determines in accordance with applicable state law whether this subsection applies. (2) For a period of two years from the date a person ceased his employment or Board member duties with DHS, DHS will not award a contract to an organization in which any former Board member, or any former employee or any former Board member's or former employee's relative, as defined in sec.79.1802 of this title (relating to Definitions), is an officer, director, employee, or owner (in part or whole) if the former employee, former Board member, or former Board member's or former employee's relative has a substantial financial interest in the contract or had a substantial involvement in the development of the contract. In addition, a former Board member or former employee may not represent any person before DHS on a matter for which the former Board member or former employee had substantial involvement in the development or has substantial financial interest. The commissioner or his designee may waive this rule as it applies to award of contracts if he determines that there is no reasonable alternative but to award a contract to the organization for the needed goods, products, or services. A waiver would normally be granted for contracts of $5,000 or less, and in instances in which the work for the contractor is on a volunteer basis. The commissioner determines whether the representation provisions of this section apply in a particular case. (b) DHS may award a contract to an organization in which a former employee, former Board member, or their relative is an officer, director, employee, consultant, or owner (in part or whole), if the commissioner determines that these persons actually had no substantial financial interest or substantial involvement in the development of the contract. sec.79.1804. Contracts Involving Current Employees. (a) Except as noted in this section, the Texas Department of Human Services (DHS) does not contract directly with current employees, their spouses, children, parents, or siblings. DHS also does not contract with organizations which are owned or controlled in part or whole by these persons. (b) The DHS commissioner may waive this section if he finds that enforcement would create an undue hardship. (c) This section is not intended to preclude current employees from serving contracted organizations on a volunteer basis. sec.79.1805. Contracts Involving Current Board Members. (a) Except as noted in this section, the Texas Department of Human Services (DHS) does not contract directly with current DHS Board members or their spouses, children, parents, or siblings, or with organizations which are owned or controlled, in part or whole, by these persons. (b) The DHS Board may waive this section if the Board finds that enforcement would create an undue hardship. sec.79.1806. Nongovernmental Contractor Certification. (a) Each bidder or contractor that is not a governmental body must execute a certification disclosing the identity, salary, and job functions of any current and former Texas Department of Human Services (DHS) employee, former or current DHS Board member, and the relatives of any of the foregoing persons, who are employed by the contractor, or who are officers, directors, consultants, or owners of or for the contractor. (b) If a contractor certifies that it has a current or former DHS employee, current or former DHS Board member, or their relatives as defined in this section and sec.sec.79.1802 and 79.1805 of this title (relating to Definitions and Contracts Involving Current Board Members) as an officer, director, employee, or owner (in part or whole), the contract or contract renewal is not to be executed by DHS until the commissioner or his designee approves the contract or contract renewal in accordance with this subchapter. (c) DHS may terminate a contract for cause if the contractor: (1) knowingly provides incorrect information in its certification, or (2) uses a subterfuge, such as a subcontract arrangement, to avoid the application of the rules in this subchapter. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 30, 1992. TRD-9217045 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: March 1, 1993 For further information, please call: (512) 450-3765