Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part II. Texas Ethics Commission Chapter 8. Legislative Per Diem 1 TAC sec.8.1 The Texas Ethics Commission adopts the repeal of sec.8.1, concerning leglislative per diem, as published in the June 19, 1992, issue of the Texas Register (17 TexReg 4443). This section is being replaced with new sec.8.1 which will also set forth the legislative per diem for members of the legislature and the lieutenant governor for each legislative day. No comments were received regarding adoption of the repeal. The repeal is adopted under the authority of Article III, sec.24 and sec.24a, and Article IV, sec.17, of the Texas Constitution, which provides the Texas Ethics Commission with the authority to set the per diem for members of the legislature and the lieutenant governor. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 1, 1993. TRD-9321137 Jim Mathieson Assistant General Counsel Texas Ethics Commission Effective date: April 22, 1993 Proposal publication date: February 26, 1993 For further information, please call: (512) 463-5800 The Texas Ethics Commission adopts new sec.8.1 concerning legislative per diem, without changes to the proposed text as published in the February 26, 1993, issue of the Texas Register (17 TexReg 1221). The new section sets forth the legislative per diem for members of the legislature and the lieutenant governor for each legislative day. The new section provides the rate of per diem receivable by legislators and the lieutenant governor. No public comments were received regarding adoption of the new section. The new section is adopted in compliance with Article III, sec.24 and sec.24a, and Article IV, sec.17, of the Texas Constitution, which provides the Texas Ethics Commission with the authority to set the per diem for members of the legislature and the lieutenant governor. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 1, 1993. TRD-9321136 Jim Mathieson Assistant General Counsel Texas Ethics Commission Effective date: April 22, 1993 Proposal publication date: February 26, 1993 For further information, please call: (512) 463-5800 TITLE 10. COMMUNITY DEVELOPMENT Part IV. Texas Department of Housing and Community Affairs Chapter 53. HOME Investment Partnership Program Rules 10 TAC sec.sec.53.1-53.18 The Texas Department of Housing and Community Affairs (the Department) adopts new sec.sec.53.1-53.18, concerning the Home Investment Partnership Program Rules, without changes to the proposed text as published in the January 8, 1993, issue of the Texas Register (18 TexReg 147). The new rules are adopted to establish procedures for the allocation of HOME investment partnership funds within the State of Texas to enhance the State's ability to provide affordable housing. The new sections provide procedures for the allocation by the Department of certain funds available under federal and state laws and regulations to, among others, qualified public entities, for profit and non-profit organizations and low- and very low income families. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Civil Statutes, Article 4413(501), sec.3.02(2), which provide the Department with the authority to adopt rules governing the administration of the Department and its programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 1, 1993. TRD-9321198 Henry Flores Executive Director Texas Department of Housing and Community Affairs Effective date: April 26, 1993 Proposal publication date: January 8, 1993 For further information, please call: (512) 475-3916 TITLE 16. ECONOMIC REGULATION Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Rates 16 TAC sec.23.21 The Public Utility Commission of Texas adopts an amendment to sec.23.21, concerning Cost of Service, with changes to the proposed text as published in the December 25, 1992, issue of the Texas Register (17 TexReg 9073). The amendment adds provisions governing the ratemaking treatment for post-retirement benefits other than pensions (OPEBs or FASB 106 Expense). Eighteen interested persons commented on the proposed rule. No person expressly supported the rule exactly as written. Texas Industrial Energy Consumers (TIEC) stated that the proposed rule fairly balances the interests of ratepayers and utilities, and recommended some changes to the proposed text to provide additional protections for ratepayers. Specifically, TIEC stated that the rule should specify that the conversion to the accrual method should occur only in a full rate case, that only reasonable OPEB costs should be included in rates, and that if amounts placed in an external trust are not used to pay OPEB expenses, the funds should be returned to ratepayers. The Commission agrees that the rule should clearly state that rate recognition of OPEB expense on an accrual basis should only occur in a full rate case, and clarifying language has been added to the rule. The Public Utility Regulatory Act (PURA) requires that only reasonable and necessary expenses may be included in rates, so it is unnecessary for the rule to so state. Requiring return of trust funds to ratepayers may restrict the ability of future commissions to order appropriate disposition of the funds, so the Commission declines to address the eventual disposition of unused funds in this rule. The Office of Public Utility Counsel (OPC) supports an approach that would allow utilities recovery of OPEB expense based on amounts actually expended. The Commission rejects the pay as you go approach because it does not reflect the current cost of providing OPEB benefits to current employees and does not attempt to match the expense with the corresponding generation of ratepayers. OPC also expressed concern about accurately estimating the amount of OPEB expense to be recovered through rates. The Commission shares OPC's concern, and believes that the requirement to place all FASB 106 related revenues in an external trust largely alleviates that concern. The Commission agrees with OPC that adoption of a rule will not end the debate about the appropriate level of expense to include in rates, but accepts that it is a problem inherent in the ratemaking process. MCI Telecommunications Corporation noted that utilities' cash outlays are not changed by FASB 106 accounting procedures. MCI supported the proposed rule's treatment of the transition obligation on the basis that it is reasonable and emulates competitive markets. MCI contended that recovery of the transition obligation is tantamount to lowering the cost of capital for regulated companies, and would further result in intergenerational inequity. The following persons stated that the proposed rule should not be adopted because it is unnecessary: Central Telephone Company of Texas, Lufkin-Conroe Telephone Exchange, Inc., Sugar Land Telephone Company, GTE Southwest Incorporated and Contel of Texas, Inc., and Texas Telephone Association. The Commission recognizes that ratemaking treatment of FASB 106 costs can be addressed on a case by case basis, but believes that the benefits of promoting consistency of treatment and decreasing litigation support adoption of a rule. Most of the comments submitted focused on the proposal not to allow recovery of the transition obligation as part of OPEB expense, and on the proposal to require external funding of all amounts relating to OPEB expense recovered through rates. The following persons stated that the rule should allow recovery of OPEB costs to the full extent SFAS 106 requires them to be recognized for financial reporting purposes, including the transition obligation: Central Power and Light Company, West Texas Utilities, Southwestern Electric Power Company, Central Telephone Company of Texas, Lufkin-Conroe Telephone Exchange, Inc., Sugar Land Telephone Company, El Paso Electric Company, GTE Southwest and Contel of Texas, Inc., Gulf States Utilities, Houston Lighting & Power Company, Lower Colorado River Authority, Southwestern Bell Telephone Company, Southwestern Public Service Company, Texas Electric Cooperatives, Texas-New Mexico Power Company, Texas Telephone Association, Texas Utilities Electric Company, United Telephone Company. A number of commenters stated that not allowing recovery of the transition obligation would be inconsistent with allowing utilities to recover on a "pay as you go" basis, which would be allowed under the proposed rule. It appears that the commenters misunderstood the Commission's intent in proposing a rule that would allow a utility to recover OPEB expenses on a "pay as you go" basis. The Commission's intent was to accommodate utilities with small numbers of employees which may choose not to adopt SFAS 106 for ratemaking purposes. The Commission recognizes that "pay as you go" does not achieve matching goals, but determined that it would be in the public interest to recognize the diverse regulatory needs of utilities in the state. The primary reasons advanced for why it would be improper to deny recovery of the transition obligation were that the transition obligation is a reasonable and necessary expense that utilities must be allowed an opportunity to recover under the Public Utility Regulatory Act, sec.39; that the matching principle cannot justify a total denial of any opportunity for recovery; that denial of an opportunity to recover the transition obligation will result in increased capital costs and increased total revenue requirements; that not allowing recovery of the transition obligation assumes that the expense should have been recovered in prior years; that the proposed treatment is inconsistent with treatment afforded pension expense; and, that the proposed rule is contrary to the regulatory approach of the Federal Energy Regulatory Commission and a number of states. The Commission agrees that PURA is reasonably interpreted as requiring utilities to be allowed an opportunity to recover the transition obligation to the extent it is found to be reasonable and necessary. The Commission has determined that it is appropriate to amortize the transition obligation over 20 years. The following commenters support the provision of the proposed rule which would require placing all revenues associated with OPEB expense in an external trust: MCI Telecommunications Corporation; Office of Public Utility Counsel; Texas Industrial Energy Consumers. The following commenters oppose the funding requirement: Central Telephone Company of Texas; Lufkin-Conroe Telephone Exchange, Inc.; Sugar Land Telephone Company; Texas Telephone Association; and United Telephone Company. GTE Southwest Incorporated and Contel of Texas, Inc. do not oppose the funding concept, but oppose mandatory funding. The following commenters do not favor the funding requirement, but do not oppose it if the Commission deems it necessary as a condition of allowing recovery of OPEB expenses on an accrual basis: Houston Lighting & Power Company; Southwestern Public Service Company; Texas-New Mexico Power Company, and Texas Utilities Electric Company. Gulf States Utilities does not oppose the funding requirement, but stated that funding should only be required to the extent it can be accomplished on a tax advantaged basis. Texas Electric Cooperatives stated that the funding requirement should be addressed on a case by case basis, and expressed concern that many cooperatives would not have the cash to establish a trust until rate recognition is given. The Commission believes that the funding requirements of the proposed rule are necessary to protect ratepayers. The funding requirement reduces incentive to overstate the expenses, alleviates some concerns over the difficulty of accurately estimating the OPEB expenses, and ensures that the funds will be available to provide benefits to future retirees. The Commission's concern in this regard is not to protect the interests of the retirees, but rather to address the interests of the ratepayers inherent in paying rates that include costs intended to maintain quality of service. The Commission believes that the benefit of having all amounts recovered placed in an external trust fund outweighs the anticipated costs of non-tax advantaged funding. The Commission clarifies that the funding requirement does not become effective as to any utility until OPEB expenses are recognized in rates on an accrual basis in accordance with the new rule. Some commenters suggested that the rule should address the tax treatment to be used if not all of the funding can be accomplished on a tax advantaged basis. The Commission has determined that the tax issues are more appropriately addressed in the context of a general rate case and does not adopt any changes to the proposed text in that regard. Texas Utilities Electric Company suggested that utilities should be given six months from the date of an order requiring funding before funding must actually be accomplished. The Commission agrees that it is appropriate to allow utilities a reasonable time to establish trust vehicles, and has modified the rule accordingly. The following commenters stated that the Commission should allow creation of a regulatory asset and deferral of FASB 106 amounts accrued before rate recognition of the new level of expense: Central Power & Light Company; West Texas Utilities; Southwestern Electric Power Company; Gulf States Utilities Company; Southwestern Public Service Company. The Commission determined that deviation from the usual ratemaking treatment of expenses subject to regulatory lag is not justified in this situation. The amendment is adopted under Texas Civil Statutes, Article 1446c, sec.16(a) , which provide the Public Utility Commission of Texas with the authority to make and enforce the rules reasonably required in the exercise of its powers and jurisdiction. sec.23.21. Cost of Service. (a) (No change.) (b) Allowable expenses. Only those expenses which are reasonable and necessary to provide service to the public shall be included in allowable expenses. In computing a utility's allowable expenses, only the utility's historical test year expenses as adjusted for known and measurable changes will be considered, except as provided for in any section of these rules dealing with fuel expenses. (1) Components of allowable expenses. Allowable expenses, to the extent they are reasonable and necessary, and subject to the rules in this section, may include, but are not limited to, the following general categories: (A)-(G) (No change.) (H) Post-retirement benefits other than pensions (OPEB). For ratemaking purposes, expense associated with post-retirement benefits other than pensions (OPEB) shall be treated as follows. (i) OPEB expense shall be included in a utility's cost of service for ratemaking purposes based on actual payments made. (ii) A utility may request a one time conversion to inclusion of current OPEB expense in cost of service for ratemaking purposes on an accrual basis in accordance with generally accepted accounting principles (GAAP). Rate recognition of OPEB expense on an accrual basis shall be made only in the context of a full rate case. (iii) A utility shall not be allowed to recover current OPEB expense on an accrual basis until GAAP requires that utility to report OPEB expense on an accrual basis. (iv) For ratemaking purposes, the transition obligation shall be amortized for 20 years. (v) OPEB amounts included in rates shall be placed in an irrevocable external trust fund dedicated to the payment of OPEB expenses. The trust shall be established no later than six months after the order establishing the OPEB expense amount included in rates. The utility shall make deposits to the fund no less frequently than annually. Deposits on the fund shall include, in addition to the amount included in rates, an amount equal to fund earnings that would have accrued if deposits had been made monthly. The funding requirement can be met with deposits made in advance of the recognition of the expense for ratemaking purposes. The utility shall, to the extent permitted by the Internal Revenue Code, establish a post-retirement benefit plan that allows for current federal income tax deductions for contributions and allows earnings on the trust funds to accumulate tax free. (2) (No change.) (c)-(d) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1993. TRD-9321076 John M. Renfrow Secretary of the Commission Public Utility Commission of Texas Effective date: April 21, 1993 Proposal publication date: December 25, 1992 For further information, please call: (512) 458-0100 TITLE 19. EDUCATION Part II. Texas Education Agency Chapter 141. Teacher Certification Subchapter U. Alternative Teacher Certification 19 TAC sec.141.481, sec.141.482 The Texas Education Agency (TEA) adopts the repeal of sec.141.481 and sec.141.482, concerning alternative teacher certification, without changes to the proposed text as published in the February 26, 1993, issue of the Texas Register (18 TexReg 1225). The sections are being repealed in accordance with the sunset review process mandated by Senate Bill 1, 71st Legislature. After review, the substance of these sections is being relocated to Chapter 137. The review process will result in a clearer, more concise statement of the rules relating to teacher certification. No comments were received regarding adoption of the repeals. The repeals are adopted 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. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 5, 1993. TRD-9321191 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Effective date: April 26, 1993 Proposal publication date: February 26, 1993 For further information, please call: (512) 463-9701 Chapter 153. Professional Practices 19 TAC sec.153.1 The Texas Education Agency (TEA) adopts the repeal of sec.153.1, concerning the Professional Practices Commission, without changes to the proposed text as published in the February 26, 1993, issue of the Texas Register (18 TexReg 1241). The section is being repealed in accordance with the sunset review process mandated by Senate Bill 1, 71st Legislature. After review, the substance of this section is being relocated to Chapter 137. The review process will result in a clearer, more concise statement of the rules relating to teacher certification. No comments were received regarding adoption of the repeal. The repeal is adopted 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. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 5, 1993. TRD-9321192 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Effective date: April 26, 1993 Proposal publication date: February 26, 1993 For further information, please call: (512) 463-9701 TITLE 22. EXAMINING BOARDS Part XXI. Texas State Board of Examiners of Psychologists Chapter 465. Rules of Practice 22 TAC sec.465.36 The Texas State Board of Examiners of Psychologists adopts new sec.465.36, concerning ethics code, with changes to the proposed text as published in the December 4, 1992, issue of the Texas Register (17 TexReg 8379). Subsections (a), (c)(6)(K)(i) and (ii) and (1) and (d) are being changed. The section is necessary to codify the Ethics Code into a Board Rule so that persons bound by the rules and regulations of the Board as well as the general public will be able to refer to a specific Board Rule concerning the ethical practice of psychology. This ethics code provides a common set of values, standards, and behavior upon which psychologists build their professional and scientific work. The section will inform licensees/certificands of the Board of the requirements for the ethical practice of psychology in the State of Texas. The section will also help to inform persons seeking mental health services from a licensee/certificand of the Board of the ethical standards of the profession. Violations of this section constitute unprofessional conduct and accordingly, violations of this rule may result in Board action. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. sec.465.36. Ethics Code. (a) Preamble. Psychologists work to develop a valid and reliable body of scientific knowledge based on research. They may apply that knowledge to human behavior in a variety of contexts. In doing so, they perform many roles, such as researcher, educator, diagnostician, therapist, supervisor, consultant, administrator, social interventionist, and expert witness. Their goal is to broaden knowledge of behavior and, where appropriate, to apply it pragmatically to improve the condition of both the individual and society. Psychologists respect the central importance of freedom of inquiry and expression in research, teaching, and publication. They also strive to help the public in developing informed judgments and choices concerning human behavior. This Ethics Code provides a common set of values upon which psychologists build their professional and scientific work. Violations of this section constitute unprofessional conduct. (1) This Code is intended to provide both the general principles and the decision rules to cover most situations encountered by psychologists. It has as its primary goal the welfare and protection of the individuals and groups with whom psychologists work. It is the individual responsibility of each psychologist to aspire to the highest possible standards of conduct. Psychologists respect and protect human and civil rights, and do not knowingly participate in or condone unfair discriminatory practices. (2) The development of a dynamic set of ethical standards for a psychologist's work-related conduct requires a personal commitment to a lifelong effort to act ethically; to encourage ethical behavior by students, supervisees, employees, and colleagues, as appropriate; and to consult with others, as needed, concerning ethical problems. Each psychologist supplements, but does not violate, the Ethics Code's values and rules on the basis of guidance drawn from personal values, culture, and experience. (b) General Principles. (1) Competence. Psychologists strive to maintain high standards of competence in their work. They recognize the boundaries of their particular competencies and the limitations of their expertise. They provide only those services and use only those techniques for which they are qualified by education, training, or experience. Psychologists are cognizant of the fact that the competencies required in serving, teaching, and/or studying groups of people vary with the distinctive characteristics of those groups. In those areas in which recognized professional standards do not yet exist, psychologists exercise careful judgment and take appropriate precautions to protect the welfare of those with whom they work. They maintain knowledge of relevant scientific and professional information related to the services they render, and they recognize the need for ongoing education. Psychologists make appropriate use of scientific, professional, technical, and administrative resources. (2) Integrity. Psychologists seek to promote integrity in the science, teaching, and practice of psychology. In these activities psychologists are honest, fair, and respectful of others. In describing or reporting their qualifications, services, products, fees, research, or teaching, they do not make statements that are false, misleading, or deceptive. Psychologists strive to be aware of their own belief systems, values, needs, and limitations and the effect of these on their work. To the extent feasible, they attempt to clarify for relevant parties the roles they are performing and to function appropriately in accordance with those roles. Psychologists avoid improper and potentially harmful dual relationships. (3) Professional and Scientific Responsibility. Psychologists uphold professional standards of conduct, clarify their professional roles and obligations, accept appropriate responsibility for their behavior, and adapt their methods to the needs of different populations. Psychologists consult with, refer to, or cooperate with other professionals and institutions to the extent needed to serve the best interests of their patients, clients, or other recipients of their services. Psychologists' moral standards and conduct are personal matters to the same degree as is true for any other person, except as psychologists' conduct may compromise their professional responsibilities or reduce the public's trust in psychology and psychologists. Psychologists are concerned about the ethical compliance of their colleagues' scientific and professional conduct. When appropriate, they consult with colleagues in order to prevent or avoid unethical conduct. (4) Respect for People's Rights and Dignity. Psychologists accord appropriate respect to the fundamental rights, dignity, and worth of all people. They respect the rights of individuals to privacy, confidentiality, self- determination, and autonomy, mindful that legal and other obligations may lead to inconsistency and conflict with the exercise of these rights. Psychologists are aware of cultural, individual, and role differences, including those due to age, gender, race, ethnicity, national origin, religion, sexual orientation, disability, language, and socioeconomic status. Psychologists try to eliminate the effect on their work of biases based on those factors, and they do not knowingly participate in or condone unfair discriminatory practice. (5) Concern for Others' Welfare. Psychologists seek to contribute to the welfare of those with whom they interact professionally. In their professional actions, psychologists weigh the welfare and rights of their patients or clients, students, supervisees, human research participants, and other affected persons, and the welfare of animal subjects of research. When conflicts occur among psychologists' obligations or concerns, they attempt to resolve these conflicts and to perform their roles in a responsible fashion that avoids or minimizes harm. Psychologists are sensitive to real and ascribed differences in power between themselves and others, and they do not exploit or mislead other people during or after professional relationships. (6) Social Responsibility. Psychologists are aware of their professional and scientific responsibilities to the community and the society in which they work and live. They apply and make public their knowledge of psychology in order to contribute to human welfare. Psychologists are concerned about and work to mitigate the causes of human suffering. When undertaking research, they strive to advance human welfare and the science of psychology. Psychologists try to avoid misuse of their work. Psychologists comply with the law and encourage the development of law and social policy that serve the interests of their patients and clients and the public. They are encouraged to contribute a portion of their professional time for little or no personal advantage. (c) Ethical Standards. (1) General Standards. These General Standards are potentially applicable to the professional and scientific activities of all psychologists. "Psychologists" include licensed psychologists, certified psychologists, certified psychological associates and applicants to the Board. (A) Applicability of the Ethics Code. The activity of a psychologist subject to the Ethics Code may be reviewed under these Ethical Standards only if the activity is part of his or her work-related functions or the activity is psychological in nature. Personal activities having no connection to or effect on psychological roles are not subject to the Ethics Code. (B) Relationship of Ethics and Law. If psychologists' ethical responsibilities conflict with law, psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict in a responsible manner. (C) Professional and Scientific Relationship. Psychologists provide diagnostic, therapeutic, teaching, research, supervisory, consultative, or other psychological services only in the context of a defined professional or scientific relationship or role (see also paragraph (2)(A) of this subsection, Evaluation, Diagnosis, and Interventions in Professional Context, and paragraph (7)(B) of this subsection, Forensic Assessments). (D) Boundaries of Competence. (i) Psychologists provide services, teach, and conduct research only within the boundaries of their competence, based on their education, training, supervised experience, or appropriate professional experience. (ii) Psychologists provide services, teach, or conduct research in new areas or involving new techniques only after first undertaking appropriate study, training, supervision, and/or consultation from persons who are competent in those areas or techniques. (iii) In those emerging areas in which generally recognized standards for preparatory training do not yet exist, psychologists nevertheless take reasonable steps to ensure the competence of their work and to protect patients, clients, students, research participants, and others from harm. (E) Maintaining Expertise. Psychologists who engage in assessment, therapy, teaching, research, organizational consulting, or other professional activities maintain a reasonable level of awareness of current scientific and professional information in their fields of activity, and undertake ongoing efforts to maintain competence in the skills they use. (F) Basis for Scientific and Professional Judgments. Psychologists rely on scientifically and professionally derived knowledge when making scientific or professional judgments or when engaging in scholarly or professional endeavors. (G) Describing the Nature and Results of Psychological Services. (i) When psychologists provide assessment, evaluation, treatment, counseling, supervision, teaching, consultation, research, or other psychological services to an individual, a group, or an organization, they provide, using language that is reasonably understandable to the recipient of those services, appropriate information beforehand about the nature of such services and appropriate information later about results and conclusions (see also paragraph (2)(I) of this subsection, Explaining Assessment Results). (ii) If psychologists will be precluded by law or by organizational roles from providing such information to particular individuals or groups, they so inform those individuals or groups at the outset of the service. (H) Human Differences. Where differences of age, gender, race, ethnicity, national origin, religion, sexual orientation, disability, language, or socioeconomic status significantly affect psychologists' work concerning particular individuals or groups, psychologists obtain the training, experience, consultation, or supervision necessary to ensure the competence of their services, or they make appropriate referrals. (I) Respecting Others. In their work-related activities, psychologists respect the rights of others to hold values, attitudes, and opinions that differ from their own. (J) Nondiscrimination. In their work-related activities, psychologists do not engage in unfair discrimination based on age, gender, race, ethnicity, national origin, religion, sexual orientation, disability, socioeconomic status, or any basis proscribed by law. (K) Sexual Harassment. (i) Psychologists do not engage in sexual harassment. Sexual harassment is sexual solicitation, physical advances, or verbal or nonverbal conduct that is sexual in nature, that occurs in connection with the psychologists' activities or roles as a psychologist, and that either: (I) is unwelcome, is offensive, or creates a hostile workplace environment, and the psychologist knows or is told this; or (II) is sufficiently severe or intense to be abusive to a reasonable person in the context. Sexual harassment can consist of a single intense or severe act or of multiple persistent or pervasive acts. (ii) Psychologists accord sexual harassment complainants and respondents dignity and respect. Psychologists do not participate in denying a person academic admittance or advancement, employment, tenure, or promotion, based solely upon their having made, or their being the subject of, sexual harassment charges. This does not preclude taking action based upon the outcome of such proceedings or consideration of other appropriate information. (L) Other Harassment. Psychologists do not knowingly engage in behavior that is harassing or demeaning to persons with whom they interact in their work based on factors such as those person's age, gender, race, ethnicity, national origin, religion, sexual orientation, disability, language, or socioeconomic status. (M) Personal Problems and Conflicts. (i) Psychologists recognize that their personal problems and conflicts may interfere with their effectiveness. Accordingly, they refrain from undertaking an activity when they know or should know that their personal problems are likely to lead to harm to a patient, client, colleague, student, research participant, or other person to whom they may owe a professional or scientific obligation. (ii) In addition, psychologists have an obligation to be alert to signs of, and to obtain assistance for, their personal problems at an early stage, in order to prevent significantly impaired performance. (iii) When psychologists become aware of personal problems that may interfere with their performing work-related duties adequately, they take appropriate measures, such as obtaining professional consultation or assistance, and determine whether they should limit, suspend, or terminate their work-related duties. (N) Avoiding Harm. Psychologists take reasonable steps to avoid harming their patients or clients, research participants, students, and others with whom they work, and to minimize harm where it is foreseeable and unavoidable. (O) Misuse of Psychologists' Influence. Because psychologists' scientific and professional judgments and actions may affect the lives of others, they are alert to and guard against personal, financial, social, organizational, or political factors that might lead to misuse of their influence. (P) Misuse of Psychologists' Work. (i) Psychologists do not participate in activities in which it appears likely that their skills or data will be misused by others, unless corrective mechanisms are available (see also paragraph (7)(D) of this subsection, Truthfulness and Candor). (ii) If psychologists learn of misuse or misrepresentation of their work, they take reasonable steps to correct or minimize the misuse or misrepresentation. (Q) Multiple Relationships. (i) In many communities and situations, it may not be feasible or reasonable for psychologists to avoid social or other nonprofessional contacts with persons such as patients, clients, students, supervisees, or research participants. Psychologists must always be sensitive to the potential harmful effects of other contacts on their work and on those persons with whom they deal. A psychologist refrains from entering into or promising another personal, scientific, professional, financial, or other relationship with such persons if it appears likely that such a relationship reasonably might impair the psychologist's objectivity or otherwise interfere with the psychologist effectively performing his or her functions as a psychologist, or might harm or exploit the other party. (ii) Likewise, whenever feasible, a psychologist refrains from taking on professional or scientific obligations when preexisting relationships would create a risk of such harm. (iii) If a psychologist finds that, due to unforeseen factors, a potentially harmful multiple relationship has arisen, the psychologist attempts to resolve it with due regard for the best interests of the affected person and maximal compliance with the Ethics Code. (R) Barter (With Patients or Clients) . Psychologists ordinarily refrain from accepting goods, services, or other nonmonetary remuneration from patients or clients in return for psychological services because such arrangements create inherent potential for conflicts, exploitation, and distortion of the professional relationship. A psychologist may participate in bartering only if: (i) it is not clinically contraindicated; and (ii) the relationship is not exploitative (see also paragraph (1)(Q) of this subsection, Multiple Relationships, and paragraph (1)(Y) of this subsection, Fees and Financial Arrangements). (S) Exploitative Relationships. (i) Psychologists do not exploit persons over whom they have supervisory, evaluative, or other authority such as students, supervisees, employees, research participants, and clients or patients (see also paragraphs (4)(E)-(G) of this subsection regarding sexual involvement with clients or patients). (ii) Psychologists do not engage in sexual relationships with students or supervisees in training over whom the psychologist has or may have evaluative or direct authority, because such relationships are so likely to impair judgment or be exploitative. (T) Consultations and Referrals. (i) Psychologists arrange for appropriate consultations and referrals based principally on the best interests of their patients or clients, with appropriate consent, and subject to other relevant considerations, including applicable law and contractual obligations (see also paragraph (5)(A) of this subsection, Discussing the Limits of Confidentiality, and paragraph (5)(F) of this subsection, Consultations). (ii) When indicated and professionally appropriate, psychologists cooperate with other professionals in order to serve their patients or clients effectively and appropriately. (iii) Psychologists' referral practices are consistent with law. (U) Third-Party Requests for Services. (i) When a psychologist agrees to provide services to a person or entity at the request of a third party, the psychologist clarifies to the extent feasible, at the outset of the service, the nature of the relationship with each party. This clarification includes the role of the psychologist (such as therapist, organizational consultant, diagnostician, or expert witness), the probable uses of the services provided or the information obtained, and the fact that there may be limits to confidentiality. (ii) If there is a foreseeable risk of the psychologist being called upon to perform conflicting roles because of the involvement of a third party, the psychologist clarifies the nature and direction of his or her responsibilities, keeps all parties appropriately informed as matters develop, and resolves the situation in accordance with this Ethics Code. (V) Delegation to and Supervision of Subordinates. (i) Psychologists delegate to their employees, supervisees, and research assistants only those responsibilities that such persons can reasonably be expected to perform competently, on the basis of their education, training, or experience, either independently or with the level of supervision being provided. (ii) Psychologists provide proper training and supervision to their employees or supervisees and take reasonable steps to see that such persons perform services responsibly, competently, and ethically. (iii) If institutional policies, procedures, or practices prevent fulfillment of this obligation, psychologists attempt to modify their role or to correct the situation to the extent feasible. (W) Documentation of Professional and Scientific Work. (i) Psychologists appropriately document their professional and scientific work in order to facilitate provision of services later by them or by other professionals, to ensure accountability, and to meet other requirements of institutions or the law. (ii) When psychologists have reason to believe that records of their professional services will be used in legal proceedings involving recipients of or participants in their work, they have a responsibility to create and maintain documentation in the kind of detail and quality that would be consistent with reasonable scrutiny in an adjudicative forum (see also paragraph (7)(A) of this subsection, Professionalism, under Forensic Activities). (X) Records and Data. Psychologists create, maintain, disseminate, store, retain, and dispose of records and data relating to their research, practice, and other work in accordance with law and in a manner that permits compliance with the requirements of this Ethics Code (see also paragraph (5)(D) of this subsection, Maintenance of Records). (Y) Fees and Financial Arrangements. (i) As early as is feasible in a professional or scientific relationship, the psychologist and the patient, client, or other appropriate recipient of psychological services reach an agreement specifying the compensation and the billing arrangements. (ii) Psychologists do not exploit recipients of services or payors with respect to fees. (iii) Psychologists' fee practices are consistent with law. (iv) Psychologists do not misrepresent their fees. (v) If limitations to services can be anticipated because of limitations in financing, this is discussed with the patient, client, or other appropriate recipient of services as early as is feasible (see also paragraph (4)(H) of this subsection, Interruption of Services). (vi) If the patient, client, or other recipient of services does not pay for services as agreed, and if the psychologist wishes to use collection agencies or legal measures to collect the fees, the psychologist first informs the person that such measures will be taken and provides that person an opportunity to make prompt payment (see also paragraph (5)(K) of this subsection, Withholding Records for Nonpayment). (Z) Accuracy in Reports to Payors and Funding Sources. In their reports to payors for services or sources of research funding, psychologists accurately state the nature of the research or service provided, the fees or charges, and where applicable, the identity of the provider, the findings, and the diagnosis (see also paragraph (5)(E) of this subsection, Disclosures). (AA) Referrals and Fees. When a psychologist pays, receives payment from, or divides fees with another professional other than in an employer-employee relationship, the payment to each is based on the services (clinical, consultative, administrative, or other) provided and is not based on the referral itself. (2) Evaluation, Assessment, or Intervention. (A) Evaluation, Diagnosis, and Interventions in Professional Context. (i) Psychologists perform evaluations, diagnostic services, or interventions only within the context of a defined professional relationship (see also paragraph (1)(C) of this subsection, Professional and Scientific Relationship). (ii) Psychologists' assessments, recommendations, reports, and psychological diagnostic or evaluative statements are based on information and techniques (including personal interviews of the individual when appropriate) sufficient to provide appropriate substantiation for their findings (see also paragraph (7)(B) of this subsection, Forensic Assessments). (B) Competence and Appropriate Use of Assessments and Interventions. (i) Psychologists who develop, administer, score, interpret, or use psychological assessment techniques, interviews, tests, or instruments do so in a manner and for purposes that are appropriate in light of the research on or evidence of the usefulness and proper application of the techniques. (ii) Psychologists refrain from misuse of assessment techniques, interventions, results, and interpretations and take reasonable steps to prevent others from misusing the information these techniques provide. This includes refraining from releasing raw test results or raw data to persons, other than to patients or clients as appropriate, who are not qualified to use such information (see also paragraph (1)(B) of this subsection, Relationship of Ethics and Law, and paragraph (1)(D) of this subsection, Boundaries of Competence). (C) Test Construction. Psychologists who develop and conduct research with tests and other assessment techniques use scientific procedures and current professional knowledge for test design, standardization, validation, reduction or elimination of bias, and recommendations for use. (D) Use of Assessment in General and With Special Populations. (i) Psychologists who perform interventions or administer, score, interpret, or use assessment techniques are familiar with the reliability, validation, and related standardization or outcome studies of, and proper applications and uses of, the techniques they use. (ii) Psychologists recognize limits to the certainty with which diagnoses, judgments, or predictions can be made about individuals. (iii) Psychologists attempt to identify situations in which particular interventions or assessment techniques or norms may not be applicable or may require adjustment in administration or interpretation because of factors such as individuals' gender, age, race, ethnicity, national origin, religion, sexual orientation, disability, language, or socioeconomic status. (E) Interpreting Assessment Results. When interpreting assessment results, including automated interpretations, psychologists take into account the various test factors and characteristics of the person being assessed that might affect psychologists' judgments or reduce the accuracy of their interpretations. They indicate any significant reservations they have about the accuracy or limitations of their interpretations. (F) Unqualified Persons. Psychologists do not promote the use of psychological assessment techniques by unqualified persons (see also paragraph (1)(V) of this subsection, Delegation to and Supervision of Subordinates). (G) Obsolete Tests and Outdated Test Results. (i) Psychologists do not base their assessment or intervention decisions or recommendations on data or test results that are outdated for the current purpose. (ii) Similarly, psychologists do not base such decisions or recommendations on tests and measures that are obsolete and not useful for the current purpose. (H) Test Scoring and Interpretation Services. (i) Psychologists who offer assessment or scoring procedures to other professionals accurately describe the purpose, norms, validity, reliability, and applications of the procedures and any special qualifications applicable to their use. (ii) Psychologists select scoring and interpretation services (including automated services) on the basis of evidence of the validity of the program and procedures as well as on other appropriate considerations. (iii) Psychologists retain appropriate responsibility for the appropriate application, interpretation, and use of assessment instruments, whether they score and interpret such tests themselves or use automated or other services. (I) Explaining Assessment Results. Unless the nature of the relationship is clearly explained to the person being assessed in advance and precludes provision of an explanation of results (such as in some organizational consulting, preemployment or security screenings, and forensic evaluations), psychologists ensure that an explanation of the results is provided using language that is reasonably understandable to the person assessed or to another legally authorized person on behalf of the client. Regardless of whether the scoring and interpretation are done by the psychologist, by assistants, or by automated or other outside services, psychologists take reasonable steps to ensure that appropriate explanations of results are given. (J) Maintaining Test Security. Psychologists make reasonable efforts to maintain the integrity and security of tests and other assessment techniques consistent with law, contractual obligations, and in a manner that permits compliance with the requirements of this Ethics Code (see also paragraph (1)(B) of this subsection, Relationship of Ethics and Law). (3) Advertising and Other Public Statements. (A) Definition of Public Statements. Psychologists comply with this Ethics Code in public statements relating to their professional services, products, or publications or to the field of psychology. Public statements include, but are not limited to, paid or unpaid advertising, brochures, printed matter, directory listings, personal resumes or curricula vitae, interviews or comments for use in media, statements in legal proceedings, lectures and public oral presentations, and published materials. (B) Statements by Others. (i) Psychologists who,engage others to create or place public statements that promote their professional practice, products, or activities retain professional responsibility for such statements. (ii) In addition, psychologists make reasonable efforts to prevent others whom they do not control (such as employers, publishers, sponsors, organizational clients, and representatives of the print or broadcast media) from making deceptive statements concerning psychologists' practice or professional or scientific activities. (iii) If psychologists learn of deceptive statements about their work made by others, psychologists make reasonable efforts to correct such statements. (iv) Psychologists do not compensate employees of press, radio, television, or other communication media in return for publicity in a news item. (v) A paid advertisement relating to the psychologists' activities must be identified as such, unless it is already apparent from the context. (C) Avoidance of False or Deceptive Statements. (i) Psychologists do not make public statements that are false, deceptive, misleading, or fraudulent, either because of what they state, convey, or suggest or because of what they omit, concerning their research, practice, or other work activities or those of persons or organizations with which they are affiliated. As examples (and not in limitation) of this standard, psychologists do not make false or deceptive statements concerning: (I) their training, experience, or competence; (II) their academic degrees; (III) their credentials; (IV) their institutional or association affiliations; (V) their services; (VI) the scientific or clinical basis for, or results or degree of success of, their services; (VII) their fees; or (VIII) their publications or research findings (see also paragraph (6) (O) of this subsection, Deception in Research, and paragraph (6)(R) of this subsection, Providing Participants With Information About the Study). (ii) Psychologists claim as credentials for their psychological work, only degrees that: (I) were earned from a regionally accredited educational institution; or (II) were the basis for psychology licensure by the state in which they practice. (D) Media Presentations. When psychologists provide advice or comment by means of public lectures, demonstrations, radio or television programs, prerecorded tapes, printed articles, mailed material, or other media, they take reasonable precautions to ensure that: (i) the statements are based on appropriate psychological literature and practice; (ii) the statements are otherwise consistent with this Ethics Code; and (iii) the recipients of the information are not encouraged to infer that a relationship has been established with them personally. (E) Testimonials. Psychologists do not solicit testimonials from current psychotherapy clients or patients or other persons who because of their particular circumstances are vulnerable to undue influence. (F) In-Person Solicitation. Psychologists do not engage, directly or through agents, in uninvited in-person solicitation of business from actual or potential psychotherapy patients or clients or other persons who because of their particular circumstances are vulnerable to undue influence. However, this does not preclude attempting to implement appropriate collateral contacts with significant others for the purpose of benefiting an already engaged therapy patient. (4) Therapy. (A) Structuring the Relationship. (i) Psychologists discuss with clients or patients as early as is feasible in the therapeutic relationship appropriate issues, such as the nature and anticipated course of therapy, fees, and confidentiality (see also paragraph (1)(Y) of this subsection, Fees and Financial Arrangements, and paragraph (5)(A) of this subsection, Discussing the Limits of Confidentiality). (ii) When the psychologist's work with clients or patients will be supervised, the discussion includes that fact, and the name of the supervisor, when the supervisor has legal responsibility for the case. (iii) When the therapist is a student intern, the client or patient is informed of that fact. (iv) Psychologists make reasonable efforts to answer patient's questions and to avoid apparent misunderstandings about therapy. Whenever possible, psychologists provide oral and/or written information, using language that is reasonably understandable to the patient or client. (B) Informed Consent to Therapy. (i) Psychologists obtain appropriate informed consent to therapy or related procedures, using language that is reasonably understandable to participants. The content of informed consent will vary depending on many circumstances; however, informed consent generally implies that the person: (I) has the capacity to consent; (II) has been informed of significant information concerning the procedure; (III) has freely and without undue influence expressed consent; and (IV) consent has been appropriately documented. (ii) When persons are legally incapable of giving informed consent, psychologists obtain informed permission from a legally authorized person, if such substitute consent is permitted by law. (iii) In addition, psychologists: (I) inform those persons who are legally incapable of giving informed consent about the proposed interventions in a manner commensurate with the persons' psychological capacities; (II) seek their assent to those interventions; and (III) consider such persons' preferences and best interests. (C) Couple and Family Relationships. (i) When a psychologist agrees to provide services to several persons who have a relationship (such as husband and wife or parents and children), the psychologist attempts to clarify at the outset: (I) which of the individuals are patients or clients; and (II) the relationship the psychologist will have with each person. This clarification includes the role of the psychologist and the probable uses of the services provided or the information obtained (see also paragraph (5)(A) of this subsection, Discussing the Limits of Confidentiality). (ii) As soon as it becomes apparent that the psychologist may be called on to perform potentially conflicting roles (such as marital counselor to husband and wife, and then witness for one party in a divorce proceeding), the psychologist attempts to clarify and adjust, or withdraw from, roles appropriately (see also paragraph (7)(C) of this subsection, Clarification of Role, under Forensic Activities). (D) Providing Mental Health Services to Those Served by Others. In deciding whether to offer or provide services to those already receiving mental health services elsewhere, psychologists carefully consider the treatment issues and the potential patient's or client's welfare. The psychologist discusses these issues with the patient or client, or another legally authorized person on behalf of the client, in order to minimize the risk of confusion and conflict, consults with the other service providers when appropriate, and proceeds with caution and sensitivity to the therapeutic issues. (E) Sexual Intimacies With Current Patients or Clients. Psychologists do not engage in sexual intimacies with current patients or clients. (F) Therapy With Former Sexual Partners. Psychologists do not accept as therapy patients or clients persons with whom they have engaged in sexual intimacies. (G) Sexual Intimacies With Former Therapy Patients. (i) Psychologists do not engage in sexual intimacies with a former therapy patient or client for at least five years after cessation or termination of professional services. (ii) Because sexual intimacies with a former therapy patient or client are so frequently harmful to the patient or client, and because such intimacies undermine public confidence in the psychology profession and thereby deter the public's use of needed services, psychologists do not engage in sexual intimacies with former therapy patients and clients even after a five-year interval except in the most unusual circumstances. The psychologist who engages in such activity after the five years following cessation or termination of treatment bears the burden of demonstrating that there has been no exploitation, in light of all relevant factors, including: (I) the amount of time that has passed since therapy terminated; (II) the nature and duration of the therapy; (III) the circumstances of termination; (IV) the patient's or client's personal history; (V) the patient's or client's current mental status; (VI) the likelihood of adverse impact on the patient or client and others; and (VII) any statements or actions made by the therapist during the course of therapy suggesting or inviting the possibility of a post-termination sexual or romantic relationship with the patient or client (see also paragraph (1)(Q) of this subsection, Multiple Relationships). (H) Interruption of Services. (i) Psychologists make reasonable efforts to plan for facilitating care in the event that psychological services are interrupted by factors such as the psychologist's illness, death, unavailability, or relocation or by the client's relocation or financial limitations (see also paragraph (5)(I) of this subsection, Preserving Records and Data). (ii) When entering into employment or contractual relationships, psychologists provide for orderly and appropriate resolution of responsibility for patient or client care in the event that the employment or contractual relationship ends, with paramount consideration given to the welfare of the patient or client. (I) Terminating the Professional Relationship. (i) Psychologists do not abandon patients or clients (see also paragraph (1)(Y)(v) of this subsection, under Fees and Financial Arrangements). (ii) Psychologists terminate a professional relationship when it becomes reasonably clear that the patient or client no longer needs the service, is not benefiting, or is being harmed by continued service. (iii) Prior to termination for whatever reason, except where precluded by the patient's or client's conduct, the psychologist discusses the patient's or client's views and needs, provides appropriate pre-termination counseling, suggests alternative service providers as appropriate, and takes other reasonable steps to facilitate transfer of responsibility to another provider if the patient or client needs one immediately. (5) Privacy and Confidentiality. These standards are potentially applicable to the professional and scientific activities of all psychologists. (A) Discussing the Limits of Confidentiality. (i) Psychologists discuss with persons and organizations with whom they establish a scientific or professional relationship (including, to the extent feasible, minors and their legal representatives): (I) the relevant limitations on confidentiality, including limitations where applicable in group, marital, and family therapy or in organizational consulting; and (II) the foreseeable uses of the information generated through their services. (ii) Unless it is not feasible or is contraindicated, the discussion of confidentiality occurs at the outset of the relationship and thereafter as new circumstances may warrant. (iii) Permission for electronic recording of interviews is secured from clients and patients. (B) Maintaining Confidentiality. Psychologists have a primary obligation and take reasonable precautions to respect the confidentiality rights of those with whom they work or consult, recognizing that confidentiality may be established by law, institutional rules, or professional or scientific relationships (see also paragraph (6)(Z) of this subsection, Professional Reviewers). (C) Minimizing Intrusions on Privacy. (i) In order to minimize intrusions on privacy, psychologists include in written and oral reports, consultations, and the like, only information germane to the purpose for which the communication is made. (ii) Psychologists discuss confidential information obtained in clinical or consulting relationships, or evaluative data concerning patients, individual or organizational clients, students, research participants, supervisees, and employees, only for appropriate scientific or professional purposes and only with persons clearly concerned with such matters. (D) Maintenance of Records. Psychologists maintain appropriate confidentiality in creating, storing, accessing, transferring, and disposing of records under their control, whether these are written, automated, or in any other medium. Psychologists maintain and dispose of records in accordance with law and in a manner that permits compliance with the requirements of this Ethics Code. (E) Disclosures. (i) Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose, such as: (I) to provide needed professional services to the patient or the individual or organizational client; (II) to obtain appropriate professional consultations; (III) to protect the patient or client or others from harm; or (IV) to obtain payment for services, in which instance disclosure is limited to the minimum that is necessary to achieve the purpose. (ii) Psychologists also may disclose confidential information with the appropriate consent of the patient or the individual or organizational client (or of another legally authorized person on behalf of the patient or client), unless prohibited by law. (F) Consultations. When consulting with colleagues: (i) psychologists do not share confidential information that reasonably could lead to the identification of a patient, client, research participant, or other person or organization with whom they have a confidential relationship unless they have obtained the prior consent of the person or organization or the disclosure cannot be avoided; and (ii) they share information only to the extent necessary to achieve the purposes of the consultation (see also paragraph (5)(B) of this subsection, Maintaining Confidentiality). (G) Confidential Information in Databases. (i) If confidential information concerning recipients of psychological services is to be entered into databases or systems of records available to persons whose access has not been consented to by the recipient, then psychologists use coding or other techniques to avoid the inclusion of personal identifiers. (ii) If a research protocol approved by an institutional review board or similar body requires the inclusion of personal identifiers, such identifiers are deleted before the information is made accessible to persons other than those of whom the subject was advised. (iii) If such deletion is not feasible, then before psychologists transfer such data to others or review such data collected by others, they take reasonable steps to determine that appropriate consent of personally identifiable individuals has been obtained. (H) Use of Confidential Information for Didactic or Other Purposes. (i) Psychologists do not disclose in their writings, lectures, or other public media, confidential, personally identifiable information concerning their patients, individual or organizational clients, students, research participants, or other recipients of their services that they obtained during the course of their work, unless the person or organization has consented in writing or unless there is other ethical or legal authorization for doing so. (ii) Ordinarily, in such scientific and professional presentations, psychologists disguise confidential information concerning such persons or organizations so that they are not individually identifiable to others and so that discussions do not cause harm to subjects who might identify themselves. (I) Preserving Records and Data. A psychologist makes plans in advance so that confidentiality of records and data is protected in the event of the psychologist's death, incapacity, or withdrawal from the position or practice. (J) Ownership of Records and Data. Recognizing that ownership of records and data is governed by legal principles, psychologists take reasonable and lawful steps so that records and data remain available to the extent needed to serve the best interests of patients, individual or organizational clients, research participants, or appropriate others. (K) Withholding Records for Nonpayment. Psychologists may not withhold records under their control that are requested and imminently needed for a patient's or client's treatment solely because payment has not been received, except as otherwise provided by law. (6) Teaching, Training Supervision, Research, and Publishing. (A) Design of Education and Training Programs. Psychologists who are responsible for education and training programs seek to ensure that the programs are competently designed, provide the proper experiences, and meet the requirements for licensure, certification, or other goals for which claims are made by the program. (B) Descriptions of Education and Training Programs. (i) Psychologists responsible for education and training programs seek to ensure that there is a current and accurate description of the program content, training goals and objectives, and requirements that must be met for satisfactory completion of the program. This information must be made readily available to all interested parties. (ii) Psychologists seek to ensure that statements concerning their course outlines are accurate and not misleading, particularly regarding the subject matter to be covered, bases for evaluating progress, and the nature of course experiences (see also paragraph (3)(C) of this subsection, Avoidance of False or Deceptive Statements). (iii) To the degree to which they exercise control, psychologists responsible for announcements, catalogs, brochures, or advertisements describing workshops, seminars, or other non-degree-granting educational programs ensure that they accurately describe the audience for which the program is intended, the educational objectives, the presenters, and the fees involved. (C) Accuracy and Objectivity in Teaching. (i) When engaged in teaching or training, psychologists present psychological information accurately and with a reasonable degree of objectivity. (ii) When engaged in teaching or training, psychologists recognize the power they hold over students or supervisees and therefore make reasonable efforts to avoid engaging in conduct that is personally demeaning to students or supervisees (see also paragraph (1)(I) of this subsection, Respecting Others, and paragraph (1)(L) of this subsection, Other Harassment). (D) Limitation on Teaching. Psychologists do not teach the use of techniques or procedures that require specialized training, licensure, or expertise, including, but not limited to, hypnosis, biofeedback, and projective techniques, to individuals who lack the prerequisite training, legal scope of practice, or expertise. (E) Assessing Student and Supervisee Performance. (i) In academic and supervisory relationships, psychologists establish an appropriate process for providing feedback to students and supervisees. (ii) Psychologists evaluate students and supervisees on the basis of their actual performance on relevant and established program requirements. (F) Planning Research. (i) Psychologists design, conduct, and report research in accordance with recognized standards of scientific competence and ethical research. (ii) Psychologists plan their research so as to minimize the possibility that results will be misleading. (iii) In planning research, psychologists consider its ethical acceptability under the Ethics Code. If an ethical issue is unclear, psychologists seek to resolve the issue through consultation with institutional review boards, animal care and use committees, peer consultations, or other proper mechanisms. (iv) Psychologists take reasonable steps to implement appropriate protections for the rights and welfare of human participants, other persons affected by the research, and the welfare of animal subjects. (G) Responsibility. (i) Psychologists conduct research competently and with due concern for the dignity and welfare of the participants. (ii) Psychologists are responsible for the ethical conduct of research conducted by them or by others under their supervision or control. (iii) Researchers and assistants are permitted to perform only those tasks for which they are appropriately trained and prepared. (iv) As part of the process of development and implementation of research projects, psychologists consult those with expertise concerning any special population under investigation or most likely to be affected. (H) Compliance With Law and Standards. Psychologists plan and conduct research in a manner consistent with federal and state law and regulations, as well as professional standards governing the conduct of research, and particularly those standards governing research with human participants and animal subjects. (I) Institutional Approval. Psychologists obtain from host institutions or organizations appropriate approval prior to conducting research, and they provide accurate information about their research proposals. They conduct the research in accordance with the approved research protocol. (J) Research Responsibilities. Prior to conducting research (except research involving only anonymous surveys, naturalistic observations, or similar research), psychologists enter into an agreement with participants that clarifies the nature of the research and the responsibilities of each party. (K) Informed Consent to Research. (i) Psychologists use language that is reasonably understandable to research participants in obtaining their appropriate informed consent (except as provided in subparagraph (L) of this paragraph, Dispensing With Informed Consent). Such informed consent is appropriately documented. (ii) Using language that is reasonably understandable to participants, psychologists inform participants of the nature of the research; they inform participants that they are free to participate or to decline to participate or to withdraw from the research; they explain the foreseeable consequences of declining or withdrawing; they inform participants of significant factors that may be expected to influence their willingness to participate (such as risks, discomfort, adverse effects, or limitations on confidentiality, except as provided in subparagraph (O) of this paragraph, Deception in Research); and they explain other aspects about which the prospective participants inquire. (iii) When psychologists conduct research with individuals such as students or subordinates, psychologists take special care to protect the prospective participants from adverse consequences of declining or withdrawing from participation. (iv) When research participation is a course requirement or opportunity for extra credit, the prospective participant is given the choice of equitable alternative activities. (v) For persons who are legally incapable of giving informed consent, psychologists nevertheless: (I) provide an appropriate explanation; (II) obtain the participant's assent; and (III) obtain appropriate permission from a legally authorized person, if such substitute consent is permitted by law. (L) Dispensing With Informed Consent. Before determining that planned research (such as research involving only anonymous questionnaires, naturalistic observations, or certain kinds of archival research) does not require the informed consent of research participants, psychologists consider applicable regulations and institutional review board requirements, and they consult with colleagues as appropriate. (M) Informed Consent in Research Filming or Recording. Psychologists obtain informed consent from research participants prior to filming or recording them in any form, unless the research involves simply naturalistic observations in public places and it is not anticipated that the recording will be used in a manner that could cause personal identification or harm. (N) Offering Inducements for Research Participants. (i) In offering professional services as an inducement to obtain research participants, psychologists make clear the nature of the services, as well as the risks, obligations, and limitations (see also paragraph (1)(R) of this subsection, Barter (With Patients or Clients)). (ii) Psychologists do not offer excessive or inappropriate financial or other inducements to obtain research participants, particularly when it might tend to coerce participation. (O) Deception in Research. (i) Psychologists do not conduct a study involving deception unless they have determined that the use of deceptive techniques is justified by the study's prospective scientific, educational, or applied value and that equally effective alternative procedures that do not use deception are not feasible. (ii) Psychologists never deceive research participants about significant aspects that would affect their willingness to participate, such as physical risks, discomfort, or unpleasant emotional experiences. (iii) Any other deception that is an integral feature of the design and conduct of an experiment must be explained to participants as early as is feasible, preferably at the conclusion of their participation, but no later than at the conclusion of the research (see also subparagraph (R) of this paragraph, Providing Participants With Information About the Study). (P) Sharing and Utilizing Data. Psychologists inform research participants of their anticipated sharing or further use of personally identifiable research data and of the possibility of unanticipated future uses. (Q) Minimizing Invasiveness. In conducting research, psychologists interfere with the participants or milieu from which data are collected only in a manner that is warranted by an appropriate research design and that is consistent with psychologists' roles as scientific investigators. (R) Providing Participants With Information About the Study. (i) Psychologists provide a prompt opportunity for participants to obtain appropriate information about the nature, results, and conclusions of the research, and psychologists attempt to correct any misconceptions that participants may have. (ii) If scientific or humane values justify delaying or withholding this information, psychologists take reasonable measures to reduce the risk of harm. (S) Honoring Commitments. Psychologists take reasonable measures to honor all commitments they have made to research participants. (T) Care and Use of Animals in Research. (i) Psychologists who conduct research involving animals treat them humanely. (ii) Psychologists acquire, care for, use, and dispose of animals in compliance with current federal, state, and local laws and regulations, and with professional standards. (iii) Psychologists trained in research methods and experienced in the care of laboratory animals supervise all procedures involving animals and are responsible for ensuring appropriate consideration of their comfort, health, and humane treatment. (iv) Psychologists ensure that all individuals using animals under their supervision have received instruction in research methods and in the care, maintenance, and handling of the species being used, to the extent appropriate to their role. (v) Responsibilities and activities of individuals assisting in a research project are consistent with their respective competencies. (vi) Psychologists make reasonable efforts to minimize the discomfort, infection, illness, and pain of animal subjects. (vii) A procedure subjecting animals to pain, stress, or privation is used only when an alternative procedure is unavailable and the goal is justified by its prospective scientific, educational, or applied value. (viii) Surgical procedures are performed under appropriate anesthesia; techniques to avoid infection and minimize pain are followed during and after surgery. (ix) When it is appropriate that the animal's life be terminated, it is done rapidly, with an effort to minimize pain, and in accordance with accepted procedures. (U) Reporting of Results. (i) Psychologists do not fabricate data or falsify results in their publications. (ii) If psychologists discover significant errors in their published data, they take reasonable steps to correct such errors in a correction, retraction, erratum, or other appropriate publication means. (V) Plagiarism. Psychologists do not present substantial portions or elements of another's work or data as their own, even if the other work or data source is cited occasionally. (W) Publication Credit. (i) Psychologists take responsibility and credit, including authorship credit, only for work they have actually performed or to which they have contributed. (ii) Principal authorship and other publication credits accurately reflect the relative scientific or professional contributions of the individuals involved, regardless of their relative status. Mere possession of an institutional position, such as Department Chair, does not justify authorship credit. Minor contributions to the research or to the writing for publications are appropriately acknowledged, such as in footnotes or in an introductory statement. (iii) A student is usually listed as principal author on any multiple-authored article that is substantially based on the student's dissertation or thesis. (X) Duplicate Publication of Data. Psychologists do not publish, as original data, data that have been previously published. This does not preclude republishing data when they are accompanied by proper acknowledgement. (Y) Sharing Data. After research results are published, psychologists do not withhold the data on which their conclusions are based from other competent professionals who seek to verify the substantive claims through reanalysis and who intend to use such data only for that purpose, provided that the confidentiality of the participants can be protected and unless legal rights concerning proprietary data preclude their release. (Z) Professional Reviewers. Psychologists who review material submitted for publication, grant, or other research proposal review respect the confidentiality of and the proprietary rights in such information of those who submitted it. (7) Forensic Activities (A) Professionalism. Psychologists who perform forensic functions, such as assessments, interviews, consultations, reports, or expert testimony, must comply with all other provisions of this Ethics Code to the extent that they apply to such activities. In addition, psychologists base their forensic work on appropriate knowledge of and competence in the areas underlying such work, including specialized knowledge concerning special populations (see also paragraphs (1)(F), Basis for Scientific and Professional Judgments; (1)(H), Human Differences; (1)(O), Misuse of Psychologists' Influence; and (1)(W) of this subsection, Documentation of Professional and Scientific Work). (B) Forensic Assessments. (i) Psychologists' forensic assessments, recommendations, and reports are based on information and techniques (including personal interviews of the individual, when appropriate) sufficient to provide appropriate substantiation for their findings (see also paragraphs (l)(C), Professional and Scientific Relationships; (1)(W), Documentation of Professional and Scientific Work; (2)(A), Evaluation, Diagnosis, and Interventions in Professional Context; and (2)(E) of this subsection, Interpreting Assessment Results). (ii) Except as noted in clause (iii) of this subparagraph, psychologists provide written or oral forensic reports or testimony of the psychological characteristics of an individual only after they have conducted an examination of the individual adequate to support their statements or conclusions. (iii) When, despite reasonable efforts, such an examination is not feasible, psychologists clarify the impact of their limited information on the reliability and validity of their reports and testimony, and they appropriately limit the nature and extent of their conclusions or recommendations. (C) Clarification of Role. In most circumstances, psychologists avoid performing multiple and potentially conflicting roles in forensic matters. When psychologists may be called on to serve in more than one role in a legal proceeding-for example, as consultant or expert for one party or for the court and as a fact witness-they clarify role expectations and the extent of confidentiality in advance to the extent feasible, and thereafter as changes occur, in order to avoid compromising their professional judgment and objectivity and in order to avoid misleading others regarding their role. (D) Truthfulness and Candor. (i) In forensic testimony and reports, psychologists testify truthfully, honestly, and candidly and, consistent with applicable legal procedures, describe fairly the bases for their testimony and conclusions. (ii) Whenever necessary to avoid misleading, psychologists acknowledge the limits of their data or conclusions. (E) Prior Relationships. A prior relationship with a party does not preclude psychologists from testifying as fact witnesses or from testifying to their services to the extent permitted by applicable law. Psychologists appropriately take into account ways in which the prior relationship might affect their professional objectivity or opinions and disclose the potential conflict to the relevant parties. (F) Compliance with Law and Rules. In performing forensic roles, psychologists are reasonably familiar with the rules governing their roles. Psychologists are aware of the occasionally competing demands placed upon them by these principles and the requirements of the court system, and attempt to resolve these conflicts by making known their commitment to this Ethics Code and taking steps to resolve the conflict in a responsible manner (see also paragraph (1)(B) of this subsection, Relationship of Ethics and Law). (8) Resolving Ethical Issues. (A) Familiarity With Ethics Code. Psychologists have an obligation to be familiar with this Ethics Code, other applicable ethics codes, and their application to psychologists' work. Lack of awareness or misunderstanding of an ethical standard is not itself a defense to a charge of unethical conduct. (B) Confronting Ethical Issues. When a psychologist is uncertain whether a particular situation or course of action would violate this Ethics Code, the psychologist ordinarily consults with other psychologists knowledgeable about ethical issues, with state or national psychology ethics committees, or with other appropriate authorities in order to choose a proper response. (C) Conflicts Between Ethics and Organizational Demands. If the demands of an organization with which psychologists are affiliated conflict with this Ethics Code, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code, and to the extent feasible, seek to resolve the conflict in a way that permits the fullest adherence to the Ethics Code. (D) Informal Resolution of Ethical Violations. When psychologists believe that there may have been an ethical violation by another psychologist, they attempt to resolve the issue by bringing it to the attention of that individual if an informal resolution appears appropriate and the intervention does not violate any confidentiality rights that may be involved. (E) Reporting Ethical Violations. If an apparent ethical violation is not appropriate for informal resolution under subparagraph (D) of this paragraph or is not resolved properly in that fashion, psychologists take further action appropriate to the situation, unless such action conflicts with confidentiality rights in ways that cannot be resolved. Such action might include referral to state or national committees on professional ethics or to state licensing boards. (F) Cooperating With Ethics Committees. Psychologists cooperate in ethics investigations, proceedings, and resulting requirements of the APA or any affiliated state psychological association to which they belong. In doing so, they make reasonable efforts to resolve any issues as to confidentiality. Failure to cooperate is itself an ethics violation. (G) Improper Complaints. Psychologists do not file or encourage the filing of ethics complaints that are frivolous and are intended to harm the respondent rather than to protect the public. (d) This rule sets ethical standards on or after May 1, 1993. The ethical standards as established previously by the Board control prior to May 1, 1993. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1993. TRD-9321125 Rebecca E. Forkner Acting Executive Director Texas State Board of Examiners of Psychologists Effective date: May 1, 1993 Proposal publication date: December 4, 1992 For further information, please call: (512) 835-2036 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part III. Texas Air Control Board Chapter 103. Procedural Rules Initiation of Other Than Rulemaking Hearings The Texas Air Control Board (TACB) adopts amendments to sec.sec.103.33, 103. 42, and 103.46 and new sec.sec.103.91-103.94, concerning Alternative Dispute Resolution (ADR) Procedures. Sections 103.33, 103.42, 103.46, and 103.93 are adopted with changes to the proposed text as published in the November 10, 1992, issue of the Texas Register (17 TexReg 7852). The changes are in response to an initiative by the Hearings Over-sight Committee to improve the hearings process and include input from the Chairman of TACB, the general public, and the TACB staff. Sections 103.91, 103.92, and 103.94 are adopted without changes and will not be republished. The changes to sec.103.33, concerning Action on Request for a Hearing, outline the information a requestor will be required to provide after a request for a hearing has been received by the Executive Director and specify the procedure for appealing the Executive Director's decision to grant a hearing. The changes to sec.103.42, concerning Hearing Examiner, establish the order for presenting evidence and specify that the consequence for withdrawing a permit application solely for the purpose of obtaining a continuance is a requirement to wait at least 90 days before being allowed to refile a new application. The changes to sec.103.46, concerning Prehearing Conference, require an initial prehearing conference, set the conditions for a second prehearing conference, specify what the applicant is required to make available to named parties or their counsel, and state that each party bears the responsibility for its own document copying costs. The new sec.103.91, concerning Scope and Policy, outlines the TACB's policy for the use of ADR Procedures. The new sec.103.92, concerning Referral of Contested Licensing Application for Alternative Dispute Resolution Procedures, specifies the procedure for referring a contested licensing application, the process for appointing a mediator, the requirements for use of an outside mediator, and the qualifications for those selected to the mediator pool. The new sec.103.93, concerning Time Periods, specifies the time constraints of the ADR procedures. The new sec.103.94, concerning Confidentiality of Communications in Alternative Dispute Resolution Procedures, describes the confidentiality of written and oral communications in regard to the ADR proceedings and the restrictions placed upon participants of the procedures. A public hearing was held in Austin on December 2, 1992. Testimony was received from three commenters during the comment period which ended December 18, 1992. The following discussion initially addresses the more general comments and then addresses the comments which deal with specific provisions of the regulation. Brown McCarroll and Oaks Hartline (BMOH) supported the proposal, an individual opposed the proposal, and Phillips Petroleum Company (Phillips) supported the proposal with additional suggestions. An individual raised an objection regarding the need for the proposed rules expressing the opinion that the real purpose of the rules was to reduce public input. Nothing in the rules is intended to reduce public input. To the contrary, the rules encourage public input by requiring disclosure to the public a copy of the application as well as supporting information including studies and other material upon which the applicant will rely (sec.103.46). Furthermore, the proposed rules would require the TACB staff to state its position on the application at the commencement of the hearing to inform the public. An individual and Phillips addressed the provision in proposed sec.103.33(b) that the statement of interest required to be submitted by those requesting a hearing would not be the basis for denial of party status. The individual believed that it would form the basis for denial particularly because of the proposed requirement to describe the requestor's location relative to the proposed facility. Phillips urged that it should be used for denial and should be required to contain allegations of facts to be used to determine if there is reason to deny the permit. Phillips also urged that the burden of proof be switched to the protestants if the basis for the request is not sufficient per se for permit denial and the application is administratively complete. Additionally, Phillips urged that protestants should have to disclose any other pending legal actions or disputes between themselves and the applicants. The "statement of interest" requirement is intended solely to provide additional information regarding a request for hearing. If it is determined after review of the facts to call a hearing, it would then be clear that the Executive Director had determined that sufficient cause existed to use the hearing process to review the application. One aspect of the hearing process is to determine party status and that decision should continue to be made based upon the information developed at the prehearing conference. The location of a requestor is but one of many factors that go into the determination of whether a person has "standing" to participate as a party. The required disclosure of other pending legal disputes is appropriate and language has been added to sec.103.33(b) to accomplish that goal. The Texas Clean Air Act puts the burden upon the applicant to submit sufficient information to determine whether the application warrants the issuance of a permit (Health and Safety Code, sec.382.0515). The use of the hearing process to make that determination does not provide justification for changing that burden. BMOH, representing the Texas Chamber of Commerce; the Texas Chemical Council; the Texas Mid-Continent Oil & Gas Association; ASARCO, Incorporated; Austin White Lime Company; BoxCrow Chemical Resources, Inc.; the Dow Chemical Company; Exxon Chemical Americas; Gibraltar Chemical Resources, Inc.; Hoechst Celanese Corporation; Mobil Oil Corporation; Shell Oil Company; and Valero Energy Corporation, suggested that proposed sec.103.33(b) be amended to require the statement of interest at the time of the hearing request and that it be clarified to apply only to hearing requests for permit applications. Comments were also made that the criteria for the decision of whether to call a contested case hearing following receipt of a request should be clarified. It is appropriate to insure that the statement of interest required under proposed sec.103.33(b) not result in a lengthening of the review process. Accordingly, changes have been made to sec.103.33(b) to provide an expeditious procedure for obtaining the statement of interest. The comment suggesting that the proposed sec.103.33(b) be clarified to apply only to hearing requests on permit applications is appropriate, and the change has been made. The issue of establishing criteria for the decision whether to call a contested case hearing was considered by the Hearings Oversight Committee and the Board which adopted guidance to the Executive Director regarding the issue. The staff does not believe that the guidance requires rulemaking procedures and, consequently, no rules were proposed. BMOH suggested that the proposed sec.103.42(a)(5) be clarified to provide references to emergency orders throughout the text, where appropriate. An individual criticized the same proposal claiming it unfairly hinders the public by allowing the staff to address the hearings examiner twice while allowing the applicant the last rebuttal, and that it pits the staff with the applicant against the protestants. Minor changes have been made to sec.103.42(a)(5) to clarify which portions of the section are applicable to both permit and emergency order applications. No other changes are recommended. The proposal that the staff open with a simple statement of its position and a draft permit is in response to suggestions from both applicants and the general public that the staff position be identified early in the process. This opening statement does not align the staff with the applicant; the staff remains an independent party. The provision that the applicant be entitled to the last rebuttal testimony is consistent with normal judicial procedures which give the moving party (in this case, the person seeking a permit) the right to open and close the presentation of evidence. Phillips and BMOH expressed concern over the concept of two prehearing conferences embodied in the proposed rule which could result in additional expense and delay. BMOH requested that the TACB clarify that the second prehearing conference is discretionary. BMOH also suggested that party status be denied to those persons who do not attend the prehearing conference. BMOH and an individual addressed the requirements regarding the exchange of information provisions in proposed sec.103.46(b)(2). BMOH stated that protestants should also be required to exchange information or, in the alternative, the entire provision should be deleted as unnecessary in view of available discovery procedures. BMOH also suggested that the proposed rule be clarified to require copies to be sent only to the representatives of the aligned parties to avoid excessive costs. The individual recommended that all parties receive, free of charge, all information outlined in the proposed rule as well as information in the possession of the Hearing Examiner and the staff. The wording in sec.103.46(a) is sufficient to establish that the first prehearing conference is required and the second is at the discretion of the Hearing Examiner, since it states the second conference "may be scheduled." The decision as to whether a second prehearing conference is necessary will be determined by the Examiner. Current agency practice has allowed for more than one prehearing conference, if necessary. Persons who fail to appear at the prehearing conferences are currently denied party status, if they do not submit advance notice that they will be unavailable for good cause. Consequently, no changes are needed on this topic. Only one clarifying change is made to the proposed rule regarding exchange of information. The rule simply requires that the basic information the applicant intends to rely upon be disclosed. Since the applicant is the entity seeking to disturb the status quo by seeking the permit, it is appropriate that it bear the greater burden of required disclosures. All other parties will still have to supply the information currently described in the existing sec.103.46(c) which includes witness lists, disputed issues for consideration at the hearing, and any written statements or documentary evidence. The clarifying change, to sec.103.46(d), is to provide that the information to be exchanged in the existing sec.103.46(b) will be provided at the expense of each party, consistent with present procedure. Thus, the applicant will not be the only party required to disclose information. Regarding the comment that all parties should additionally receive information in the possession of the Hearings Examiner and staff, all materials in the possession of the Hearings Examiner must be available to all parties, except information covered by privilege or confidentiality. The word "counsel" in sec.103.46(b) is changed to "representative" to be consistent with the existing sec.103.46(b) and to clarify that the existing practice of serving documents only upon the representative(s) of aligned parties will be maintained. No change is being made regarding the issue of copy costs. The current practice of exchanging copies of items specified in sec.103.46(b), described previously, occurs without charge to the parties. Any intervenor parties have chosen to enter the hearing forum due to concern or interest, and thus it is not unreasonable to expect them to bear their fair share of copying costs. As a practical matter, the agency has always been aware of this cost burden and the staff has, in appropriate circumstances, provided copies free of charge; the Hearings Examiners likewise provide free copies if they are not voluminous. Further, the applicant is called upon to provide free copies of the application, normally an extensive document. Accordingly, the proposed allocation of copy costs appears appropriate. Two general comments were made regarding the proposed ADR. Phillips stated that it was unclear who could call for ADR, what the procedure would be, and whether it would be binding upon the parties. BMOH suggested that the initiation of ADR should stay all activity in the contested case hearing including discovery. The individual suggested that the terms "fullest extent possible" and "reasonable opportunity" as used in proposed sec.103.91 should be defined. The individual opposed the proposed sec.103.92(a), which establishes when ADR can be ordered, unless unanimous consent of the parties is first obtained. The individual also objected to the requirement in proposed sec.103.93(b)(3)(A) that absent agreement, the costs of an outside mediator should be borne by the nongovernmental parties to the hearing. Finally, the same commenter objected to the confidentiality of ADR communications provision of proposed sec.103.94. The staff believes the ADR rules are clear regarding procedures involved in the ADR process. Section 103.91 and sec.103.92 provide that either the Executive Director, the Hearings Examiner, or the Board can direct the use of ADR and specify when each of those persons may exercise that authority. Section 103.91 specifies that appropriate ADR procedures include those used currently in the courts of this state. ADR is a well-established concept which has been used in the judicial system via mini-trials, mediation, and other techniques. ADR is an attempt to resolve a dispute by agreement; accordingly, it is up to the parties, by agreement, to determine the extent to which they intend to bind themselves. The suggestion that proceedings in a hearing be stayed during ADR has merit and language is being added to sec.103.93(b) to implement that concept. Given the context of sec.103.91, the terms "fullest extent possible" and "reasonable opportunity" are sufficiently detailed. The determination of whether to direct the use of ADR is one which is highly dependent upon the facts of each case and is not reasonably susceptible to an objective criteria based system. It is sufficient to direct the use of ADR when it appears that there is a "reasonable opportunity" to settle the dispute. The decision to direct the use of ADR should not be left to the parties to a hearing. However, it is unlikely that ADR would be ordered if one or more parties registered strong objections, since the probability of success would be low. The staff does not believe that unanimous consent of the parties should be required before ADR can be employed. The rules already serve to protect the interests of a party that does not wish to pay for an outside mediator. Section 103.92(b)(2) provides that before an outside mediator may be used, the parties must unanimously agree to both the use and actual selection of an outside mediator. A party that cannot reach agreement regarding the allocation of costs may simply refuse to agree to the use of an outside mediator and will then incur no obligation for payment. It is unclear whether the commenter's concerns over the confidentiality of communications goes simply to the confidentiality of any agreement reached through ADR or includes concern over the confidentiality of statements and information made during ADR. The rules would not provide for the confidentiality of ADR agreements. Such agreements would ordinarily form a proposed basis for decision by the Executive Director or the Board and, as such, would be public information. It is, however, intended that communications made during the ADR process would be confidential. This is similar to the existing rules of evidence which protect from disclosure statements made in settlement negotiations. The reason for confidentiality protection is to encourage the parties to speak frankly and openly in the efforts to settle the matter. Parties are naturally worried that offers they might make in the spirit of compromise might become requirements upon them even though there was no compromise. Without confidentiality provisions, ADR would have little chance for success. An individual suggested that a fundamental problem with public participation in permit proceedings is that there exists a "rigged process" and stated that public notice on permit applications should occur when all required information is submitted, not when the application is deemed approvable. The suggestion of the individual is essentially the process currently used. The staff has always attempted to provide public notification as soon as the application reflects all required information to enable the public to know early in the process that an application is pending. In the case of applications which must be reviewed under the Prevention of Significant Deterioration requirements, notice is delayed because the federal mandate is that a draft permit must be prepared prior to the notice and comment period. In compliance with the Americans With Disabilities Act, this document may be requested in alternate formats by contacting Air Quality Planning Program staff at (512) 908-1457, (512) 908-1500 FAX or 1-800-RELAY-TX (TDD), or by writing or visiting at 12124 Park 35 Circle, Austin, Texas 78753. 31 TAC sec.103.33 The amendment is adopted under the Texas Clean Air Act (TCAA), sec.382.017, Texas Health and Safety Code (Vernon 1990), which provides TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.103.33. Action on Request for a Hearing. (a) (No change.) (b) After receipt of a request for a hearing on a permit application pursuant to the Health and Safety Code, sec.382.056, the Executive Director or his designate shall promptly require the requestor to provide in writing a brief, but specific, statement of interest and basis for challenging the application. Such statement should convey in plain language the requestor's location relative to the proposed facility, why the requestor believes he or she will be affected by emissions from the proposed facility, what the requestor's concerns are about the emissions from the proposed facility, how the requestor believes emissions from the facility will affect him or her if permitted, and any pending legal disputes between the requestor and the applicant including any pending judicial or administrative proceedings. The executive director or his designate shall provide a form to the requestor which may be used to supply the information required by this rule. The requestor shall supply the information within 14 days of the receipt of the letter and form from the executive director, unless extended for good cause shown. This statement shall not be used as the basis for denial of party status in any contested case hearing; party status determinations will be made based on information developed at the initial prehearing conference. (c) A decision by the Executive Director to grant a hearing request pursuant to subsection (a)(1) or (2) of this section shall be noticed to the applicant and may be appealed by the applicant to the Board within 30 days after notification of the decision. Such appeal is to be taken by written notification to the Executive Director. If a contested case hearing has already been called, the submission of an appeal by the applicant pursuant to this section stays all further actions in the hearing, until the appeal has been the subject of final action by the Board. Such appeal shall be placed on the agenda of the next regularly scheduled Board meeting subject to posting requirements. The appeal is not subject to contested case hearing requirements. (d) The decision of the Executive Director to deny a request for hearing is appealable to the Board within 30 days after notification of the decision. Such appeal is to be taken by written notification to the Executive Director. Section 103.71 of this title (relating to Request for Action by the Board) should be consulted for the method of requesting Board action on the appeal. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 2, 1993. TRD-9321186 Lane Hartsock Deputy Director, Air Quality Planning Texas Air Control Board Effective date: April 26, 1993 Proposal publication date: November 10, 1992 For further information, please call: (512) 908-1451 Adjudicative Hearings 31 TAC sec.103.42, sec.103.46 The amendments are adopted under the Texas Clean Air Act (TCAA), sec.382. 017, Texas Health and Safety Code (Vernon 1990), which provides TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.103.42. Hearing Examiner. (a) Examiners shall be designated to preside at hearings and to report to the Board on such hearings in the manner provided by law. In any adjudicative hearing, the examiner shall have no other duties concerning the hearing and shall be considered to be assisting the Board in its decision-making function. The examiners shall have no prosecuting duties with the agency and shall act independently of the staff in an impartial manner. A hearing examiner assigned to a particular proceeding or case shall have the authority to: (1)-(4) (No change.) (5) designate and align parties and establish the following order for presentation of evidence in hearings on applications for permits or emergency orders: the Texas Air Control Board Staff (Staff) will open with a simple statement of its current position on the application and, in a permit hearing, will present the Staff's draft permit including any proposed special provisions. The applicant presents evidence to meet its burden of proof on the application, any opponents present evidence, and the Staff presents its evidence. Each party is given the opportunity for rebuttal, with the applicant's rebuttal being last in order of presentation. Nothing herein should be construed to change the burden of proof being upon the applicant; (6)-(15) (No change.) (b)-(c) (No change.) (d) In the case where an applicant withdraws a permit application solely for the basis of obtaining a continuance, the application shall be withdrawn with prejudice to refiling for 90 days. (e) If a hearing examiner fails to complete an assigned case before a final order is rendered, the Director of Hearings may appoint another examiner on the hearings staff to complete the assigned case without the necessity of duplicating any duty or function performed by the previous examiner. sec.103.46. Prehearing Conference. (a) The hearing examiner shall hold an initial prehearing conference at which party status is determined and a discovery schedule is set. Reasonable notice of the time and location of the conference shall be provided to all parties. A second prehearing conference may be scheduled at which time the examiner will determine the contested case issues and accept any stipulations as to such contested issues. (b) To facilitate transfer of basic information and preparation of the parties for the hearing and without precluding further discovery by any of the parties, in all contested cases the applicant shall make available to named parties or their representative at a time and place to be determined by the hearing examiner: (1) copies of the permit application; and (2) any information which the applicant will rely upon in the hearing, such as facts or data upon which an expert bases an opinion or inference, including, but not limited to, the following: (A) any engineering or technical studies performed in support of the application; (B) any emissions modeling report or computer runs of air emission models for the proposed facility; (C) any health effects assessment conducted by or for the applicant for the proposed facility; and (D) resumes and reports of any experts who will testify for the applicant in the hearing. (c) The hearing examiner may direct that one or more of the following be transmitted by each party to all other parties or their representatives and to the hearing examiner by a date established by the hearing examiner: (1)-(4) (No change.) (d) Except for the copy of the application which the applicant shall provide to all parties, and the material identified in subsection (c) of this section, which is to be provided by each party submitting material, each party bears responsibility for its own document copying costs. (e) Witnesses and proposed written evidence may be added and narrative summaries of expected testimony amended at the hearing only upon a finding of the hearing examiner that good cause existed for failure to exchange the additional or amended material by the established date. (f) At any prehearing conference or in the prehearing conference summary, the hearing examiner: (1)-(6) (No change.) (g) The results of any prehearing conference shall be summarized in writing by the hearing examiner and made part of the record. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 2, 1993. TRD-9321187 Lane Hartsock Deputy Director, Air Quality Planning Texas Air Control Board Effective date: April 26, 1993 Proposal publication date: November 10, 1992 For further information, please call: (512) 908-1451 Alternative Dispute Resolution Procedures 31 TAC sec.sec.103.91-103.94 The new sections are adopted under the Texas Clean Air Act (TCAA), sec.382. 017, Texas Health and Safety Code (Vernon 1990), which provides TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.103.93. Time Periods. (a) The mediator in a contested matter for which notice of contested case hearing has not been issued shall determine a reasonable time period (generally no more than 30 days) during which alternative dispute resolution procedures shall be conducted. (b) The mediator in a contested matter for which notice of contested case hearing has been issued shall conduct alternative dispute resolution procedures pursuant to a schedule established by the Board or hearing examiner which shall not exceed 14 days in length. The hearing examiner may, with the consent of all parties to the hearing and the mediator, extend the alternative dispute resolution procedures for a period not to exceed an additional 14 days. The use of alternative dispute resolution procedures in a contested case hearing shall act as a stay of all further actions in the hearing until the conclusion of the alternative dispute resolution procedures. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 2, 1993. TRD-9321188 Lane Hartsock Deputy Director, Air Quality Planning Texas Air Control Board Effective date: April 26, 1993 Proposal publication date: November 10, 1992 For further information, please call: (512) 908-1451 TITLE 34. PUBLIC FINANCE Part V. Texas County and District Retirement System Chapter 101. Practice and Procedure Regarding Claims 34 TAC sec.101.1, sec.101.6 The Texas County and District Retirement System adopts amendments to sec.101.1 and sec.101.6 concerning practice and procedure regarding claims, without changes to the proposed text as published in the February 26, 1993, issue of the Texas Register (18 TexReg 1246). The amendments are adopted to correct the name of the system, amend the reference to its governing statute to reflect that it now is part of the Government Code, and to reflect that the time for filing retirement applications may not procede the termination of a member's employment with the participating subdivision. The correct name of the system is the Texas County and District Retirement System; its governing law is the Texas Government Code, Title 8, Subtitle F, as amended. Applications for retirement under that statute must be filed not less than 30 nor more than 90 days prior to the date specified as the effective date of retirement, which date must be the last day of membership, and may not precede termination of the member's employment with the participating subdivision. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Government Code, sec.845.102, which provides the board of trustees of the Texas County and District Retirement System with the authority to adopt rules necessary or desirable for effective administration of the system. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1993. TRD-9321045 Terry Horton Director Texas County and District Retirement System Effective date: May 1, 1993 Proposal publication date: February 26, 1993 For further information, please call: (512) 476-6651 Chapter 103. Calculation or Types of Benefits 34 TAC sec.103.2 The Texas County And District Retirement System adopts an amendment to sec.103.2, concerning additional optional benefits, without changes to the proposed text as published in the February 26, 1993, issue of the Texas Register (18 TexReg 1247). The amendment is adopted to set forth the seven optional benefits which a member may elect in lieu of the standard benefit, without the necessity of referring to any other source or document. The amendment sets forth the seven optional service and disability retirement benefits, each of which is a reduced monthly allowance that is the actuarial equivalent of the standard benefit, and each of which is separately numbered. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, sec.845.102, which provides the board of trustees of the Texas County and District Retirement System with the authority to adopt rules necessary or desirable for effective administration of the system. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1993. TRD-9321046 Terry Horton Director Texas County and District Retirement System Effective date: May 1, 1993 Proposal publication date: February 26, 1993 For further information, please call: (512) 476-6651 Chapter 105. Creditable Service 34 TAC sec.105.1, sec.105.2 The Texas County and District Retirement System adopts amendments to sec.105.1 and sec.105.2 concerning creditable services, without changes to the proposed text as published in the February 26, 1993, issue of the Texas Register (18 TexReg 1247). The amendment to sec.105.1 is adopted to correctly designate the Act governing the System and to use gender-neutral language. The amendment to sec.105.2 deletes the authority for hospitals to provide for periods of probationary employment, unless otherwise authorized by the Act governing the System, and provide that no person can be required to serve a probationary period after having become a member of the System. The System's governing law is the Texas Government Code, Title 8, Subtitle F, as amended. No person may be required to serve a probationary period, during which that person would not be a member of the System, unless such probationary period is expressly authorized by the Act governing the System, nor may any person who has become a member of the System and has not terminated membership be required to serve a probationary period. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Government Code, sec.845.102, which provides the board of trustees of the Texas County and District Retirement System with the authority to adopt rules necessary or desirable for effective administration of the system. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1993. TRD-9321047 Terry Horton Director Texas County and District Retirement System Effective date: May 1, 1993 Proposal publication date: February 26, 1993 For further information, please call: (512) 476-6651 Chapter 107. Miscellaneous Rules 34 TAC sec.107.1, sec.107.3 The Texas County And District Retirement System adopts an amendment to sec.107.1 and new sec.107.3, concerning miscellaneous rules, without changes to the proposed text as published in the February 26, 1993, issue of the Texas Register (18 TexReg 1248). The amendment is adopted to conform sec.107.1, to the provisions of the Government Code, sec.845.115, and to limit the number of checks written in connection with trustee-to-trustee transfers. The confidentiality of information about members, retirees, annuitants, or beneficiaries of the System is governed by the Texas Government Code, sec.845. 115. Payment of a withdrawal of contributions under the Government Code, sec.845.108, will not be made to more than one trustee of an eligible retirement plan upon the withdrawal of contributions by any one member or any one spouse or any one alternate payee in addition to any payment directly to the member, spouse, or alternate payee. No comments were received regarding adoption of the amendment and new section. The amendment and new section are adopted under the Texas Government Code, sec.845.102, which provides the board of trustees of the Texas County and District Retirement System with the authority to adopt rules necessary or desirable for effective administration of the system. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1993. TRD-9321048 Terry Horton Director Texas County and District Retirement System Effective date: May 1, 1993 Proposal publication date: February 26, 1993 For further information, please call: (512) 476-6651 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part VI. Texas Department of Criminal Justice Chapter 325. Agency Procedures 37 TAC sec.sec.325.1-325.5, 325.7-325.11 The Texas Department of Criminal Justice-Community Justice Assistance Division (TDCJ-CJAD) adopts the repeal of sec. sec.325.1-325.5 and sec.sec.325.7-325.11, concerning the agency procedures of the Texas Adult Probation Commission, without changes to the proposed text as published in the January 29, 1993, issue of the Texas Register (18 TexReg 575). These sections are being repealed as a part of the TDCJ-CJAD rule recodification process and, without the adoption of these repeals, duplication of rules will occur. The sections are prior rules of the Texas Adult Probation Commission (TAPC) and are being repealed as part of the recodification process required by the reorganization of the Texas Department of Criminal Justice under which the TAPC become the TDCJ-CJAD. No comments were received regarding adoption of the repeals. The repeals are adopted under the Code of Criminal Procedures, Article 42. 13, sec.2(a) and sec.3(a), which provides the TDCJ-CJAD with the authority to establish minimum standards for programs, facilities, equipment, and other aspects of the operation of departments; establish an application process and procedures for funding community corrections facilities; establish a format for community justice plans; and to require community supervision and corrections departments to keep financial and statistical records; submit a community justice plan; and submit periodic financial audits and statistical reports to TDCJ-CJAD. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 29, 1993. TRD-9321062 Jackee Cox General Counsel Texas Department of Criminal Justice Effective date: April 21, 1993 Proposal publication date: January 29, 1993 For further information, please call: (512) 463-9988 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 19. Long-Term Care Nursing Facility Requirements for Licensure and Medicaid Certification Subchapter S. Reimbursement Methodology for Nursing Facilities 40 TAC sec.19.1807 The Texas Department of Human Services (DHS) adopts an amendment to sec.19. 1807, concerning rate setting methodology, without changes to the proposed text as published in the December 15, 1993, issue of the Texas Register (17 TexReg 8805). The justification for the amendment is to add supplemental reimbursement for ventilator-dependent residents as an allowed cost of care for qualified nursing facility residents. The section will function by making nursing facility care more accessible to ventilator-dependent individuals. During the public comment period, DHS received comments from the Texas Health Care Association and Beverly Enterprises. A summary of the comments and DHS's responses follows: COMMENT: One commenter stated that the calculation of time difference between ventilator-dependent residents and other heavy care residents might not be a reasonable assessment or incentive for facilities to admit ventilator-dependent residents. RESPONSE: The proposed methodology for calculation of the ventilator-dependent supplement is based upon case mix research analogous to that used in designing the current Texas Index for Level of Effort (TILE) case mix classification system. The data base used in this most recent research was specifically designed to collect information regarding the costs of caring for special resident populations, including ventilator-dependent residents. COMMENT: One commenter stated that the proposed methodology would not account for increased liability factors involved in caring for ventilator-dependent residents. RESPONSE: DHS collects and retains cost information about professional and facility malpractice insurance from the Medicaid cost reports. COMMENT: One commenter stated that because of the need for better-trained, higher-qualified personnel, such as registered nurses (RNs), higher salaries should be included in the rate determination. RESPONSE: The case mix differential used to calculate the ventilator supplement accounts for the higher wages of professional staff such as RNs. The staff times incorporated into this differential are weighted by the average wage for each type of staff providing services. COMMENT: One commenter stated that in some cases, ventilator-dependent residents might not be able to have a roommate, which would result in higher costs to the provider. RESPONSE: Ventilator equipment can be accommodated by the space allocated to an individual resident residing in a semi-private room. COMMENT: One commenter stated that the equipment and supplies required to care for ventilator-dependent residents are extremely expensive and that these costs needed to be captured in the reimbursement methodology. RESPONSE: The case mix differential used to calculate the ventilator supplement is applied to the Resident Care Cost Center which encompasses both direct care staff costs and miscellaneous costs, including medical supplies, durable medical equipment, laundry, and housekeeping. DHS has determined that the increase in miscellaneous cost reimbursement due to the application of the differential is sufficient to cover the costs of required equipment and supplies. COMMENT; One commenter stated that the costs of donated equipment should be calculated in the rate so the true costs are captured and supplementation is not encouraged. RESPONSE: DHS's determination of the adequacy of the miscellaneous portion of the ventilator supplement is independent of whether the supplies are donated. COMMENT: One commenter stated that services to ventilator residents vary greatly and that it will be difficult for facilities to accept a ventilator- dependent resident for anything other than a resident-specific rate. RESPONSE: Eligibility criteria in the proposed rules for the reimbursement supplement ensure that qualifying residents form a homogenous group. These criteria require that the resident receive continuous ventilation and be classified as heavy care. COMMENT: One commenter stated that DHS should implement a pilot program in several nursing facilities in order to examine the costs of caring for ventilator-dependent residents. RESPONSE: The proposed methodology for calculation of the ventilator-dependent supplement is based upon the most current research data available. The data base used in this research was specifically designed to collect and retain information regarding the needs of special resident populations, including ventilator-dependent residents. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1993. TRD-9321082 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: May 15, 1993 Proposal publication date: December 15, 1992 For further information, please call: (512) 450-3765