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 22. EXAMINING BOARDS Part XI. Board of Nurse Examiners Chapter 217. Licensure and Practice 22 TAC sec.217.1, sec.217.3 The Board of Nurse Examiners adopts an amendment to sec.217.1 and new sec.217.3, concerning definitions and candidate with a disability, without changes to the proposed text as published in the April 6, 1993, issue of the Texas Register (18 TexReg 2284). In 1992 the Americans with Disabilities Act (ADA) required that persons with disabilities be offered the opportunity to demonstrate competency in their chosen field of endeavor. The National Council has provided interpretations of this law as it relates to nursing licensure and examination. This amendment and new section support language changes in applications and processing of requests from a candidate with a disability. Bring the rules and regulations into compliance with ADA simplifies procedures for providing reasonable accommodations based on documented need of the candidate with a disability. No comments were received regarding adoption of the amendment and new section. The amendments are adopted under Texas Civil Statutes, Article 4514, sec.1 which provide the Board of Nurse Examiners with the authority to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. 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 May 27, 1993. TRD-9323481 Louise Waddill, Ph.D., R.N. Executive Director Texas Board of Nurse Examiners Effective date: June 17, 1993 Proposal publication date: April 6, 1993 For further information, please call: (512) 835-8650 22 TAC sec.217.3 The Board of Nurse Examiners adopts the repeal of sec.217.3, concerning handicapped candidate, without changes to the proposed text as published in the April 6, 1993, issue of the Texas Register (18 TexReg 2284). Rewrite of the section is necessary to comply with the Americans with Disabilities Act (ADA); therefore, the section is being repealed and a new section adopted. The repeal of the rule is clarification by omission. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 4514, sec.1 which provide the Board of Nurse Examiners with the authority to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. 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 May 27, 1993. TRD-9323480 Louise Waddill, Ph.D., R.N. Executive Director Texas Board of Nurse Examiners Effective date: June 17, 1993 Proposal publication date: April 6, 1993 For further information, please call: (512) 834-8650 Part XXII. Texas State Board of Public Accountancy Chapter 501. Professional Conduct Professional Practices 22 TAC sec.501.11 The Texas State Board of Public Accountancy adopts an amendment to rule sec.501.11, without changes to the proposed text as published in the April 2, 1993 issue of the Texas Register (18 TexReg 2184). The adoption of the amendment ensures that audit services will not be compromised by a certificate or registration holder's relationship with a close relative who is involved with the client. The amendment adds an additional situation of impaired independence which is necessary to define close relatives and situations in which the involvement of a close relative would impair independence. One comment was received which suggested that the Board more closely conform its rule to the independence rules of the American Institute of Certified Public Accountants (AICPA), and consider not acting on the proposed revision until proposed AICPA rules have been finalized. Don Weldon, Executive Director of the Texas Society of Certified Public Accountants, was not opposed to the rule, but asked the Board to delay consideration. The Board disagrees with the reasoning because it is important that this amendment be adopted as soon as possible to provide some guidance in those situations where a CPA's relationship with a close relative might impair independence. The Board will examine the AICPA rule and proposed rule to determine if the Board's rule can be amended at a later date. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules regarding independence and the impairment thereof. 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 May 27, 1993. TRD-9323549 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: June 18, 1993 Proposal publication date: April 2, 1993 For further information, please call: (512) 450-7066 Chapter 513. Registration Partnerships 22 TAC sec.513.31 The Texas State Board of Public Accountancy adopts new sec.513.31, with changes to the proposed text as published in the April 2, 1993, issue of the Texas Register , (18 TexReg 2185). The new section is necessary to permit CPAs to take advantage of the Texas Limited Liability Company Act by enabling them to register, with the Board, the newly created limited liability companies. All limited liability companies engaged in the practice of public accounting shall register with the Board. No comments were received regarding adoption of the new section. The new rule is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules regarding the registration of limited liability companies. sec.513.31. General Rule. Every limited liability company (LLC) engaged or to be engaged in the practice of public accountancy whose articles of organization are approved by the Secretary of State and which meet the requirements of the Texas Limited Liability Company Act (Texas Civil Statutes, Article 1528n) and the Public Accountancy Act of 1991, shall register with the board. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 27, 1993. TRD-9323554 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: June 18, 1993 Proposal publication date: April 2, 1993 For further information, please call: (512) 450-7066 Chapter 519. Practice and Procedure 22 TAC sec.519.27 The Texas State Board of Public Accountancy adopts an amendment to sec.519. 27, with changes to the proposed text as published in the April 2, 1993, issue of the Texas Register (18 TexReg 2185). The amendment allows the agency to recover administrative costs. The amendment provides that administrative costs will be paid by the individuals and firms that incur the costs. Two individuals opposed sec.519.27(h) at a public hearing stating that "reasonable" attorneys' fees could be interpreted to be market value, and could thus place an undue financial burden on respondent CPAs. They further, stated that they believe the proposed rule to be illegal because the legislature did not give the Board the authority to assess costs for attorneys' fees. The Board agreed with the concern regarding assessing attorneys' fees at market value and revised the rule as proposed to address that concern. The Board disagreed with the concern regarding the legality of assessing attorneys' fees and expert witness fees as part of administrative costs. Although attorneys' fees are not awarded in civil litigation, actions by administrative agencies are substantially different from civil actions. An administrative agency is bringing an action at the taxpayers' expense, against an individual for violating a state law which is designed to protect the public interest. There is no taxpayer expense or public interest involved in civil litigation between private party litigants. The legislature has authorized the Texas State Board of Accountancy to recoup its costs when it successfully protects the public interest. It is only fair that a person violating the laws of the state be required to reimburse the state for its costs in correcting a wrong. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules regarding hearings in disciplinary actions. sec.519.27. Hearings in Disciplinary Actions. (a)-(g) (No change.) (h) Administrative Cost Recovery Rule. The board may for good cause and in accordance with the Public Accountancy Act 1991, after notice and hearing, impose direct administrative costs in addition to other sanctions provided by law or these rules. Direct administrative costs include, but are not limited to, attorneys' fees, investigative costs, witness fees and deposition expenses, travel expenses of witnesses, fees for professional services of expert witnesses, the cost of a study, analysis, audit or other projects the board finds necessary in preparation of the state's case. 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 May 27, 1993. TRD-9323555 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: June 18, 1993 Proposal publication date: April 2, 1993 For further information, please call: (512) 450-7066 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 145. Long-Term Care Subchapter G. Licensing and Medical Certification Standards 25 TAC sec.145.111 The Texas Department of Health (department) adopts an amendment to sec.145.111, without changes to the proposed text as published in the April 2, 1993, issue of the Texas Register (18 TexReg 2187). The amendment to sec.145.111 concerns standards for nursing homes jointly developed by the department and the Texas Department of Human Services (TDHS) that apply to licensure and to Medicaid certification. The standards are in TDHS rules in 40 TAC sec. sec.19.1-19.2216, which the department adopts by reference in sec.145.111. The department's amendment to 25 TAC sec.145.111 shows the effective date that the department adopts TDHS's changes to the standards. The sections covered under this amendment to 25 TAC sec.145.111 cover the adopted amendments to 40 TAC sec.19.302 and sec.19.604 which were published in the May 14, 1993, and May 28, 1993, issues of the Texas Register (18 TexReg 3092 and 3397) under TDHS adopted rules. The amended sections cover the admission and discharge rules which allow residents who have received a notice of discharge and are appealing it to remain in the facility until the appeal decision is made and alternate placement rules for residents who have specialized needs because of mental illness, mental retardation or a related condition. No comments were received during the 30-day comment period. The amendment is adopted under the Health and Safety Code, Chapter 242, which provides for the Texas Board of Health to promulgate rules relative to its licensing authority for long-term care facilities; sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Department, and the Commissioner of Health; and Senate Bill 487, sec.8, 71st Legislature, 1989, which provides the Department and TDHS with the authority to jointly develop one set of standards for nursing homes that applies to licensure and to certification for participation in the medical assistance program under the Human Resources Code, Chapter 32, and to adopt by rule the standards and any amendments to them. 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 May 26, 1993. TRD-9323451 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: June 16, 1993 Proposal publication date: April 2, 1993 For further information, please call: (512) 834-6770 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part II. Texas Parks and Wildlife Department Chapter 55. Law Enforcement Subchapter E. Depredating Animal Control and Wildlife Management from Aircraft 31 TAC sec.55.152 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing May 20, 1993, adopts an amendment to sec.55.152, without changes to the proposed text as published in the April 20, 1993, issue of the Texas Register (18 TexReg 2522). This rule is titled to Depredating Animal Control and Wildlife Management from Aircraft Proclamation. Section 55.152(c) (4) was amended by deleting commercial from the pilot license requirement and adding pilot's license as required by the Federal Aviation Administration. The amendment will enable persons with a private pilots' license to proceed with their control of depredating animals or the management of wildlife. the change will allow more individuals to qualify for aerial permits. The rule will allow a person to pilot an aircraft to control depredating animals and manage wildlife, if they meet the Federal Aviation Administration license requirements. Three telephone call from individuals were received. All were very positive and were in agreement with the change. The amendment is adopted under the Parks and Wildlife Code, Chapter 43, Subchapter G, which authorizes that the Commission may make regulations concerning the control of depredating animals and wildlife management by aircraft. 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 May 27, 1993. TRD-9323562 Paul M. Shinkawa Director, Legal Services Texas Parks and Wildlife Department Effective date: June 18, 1993 Proposal publication date: June 4, 1993 For further information, please call: 1 (800) 792-1112, Ext. 4419 or (512) 389- 4419 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Protective and Regulatory Services Chapter 736. Memoranda of Understanding with Other State Agencies Memorandum of Understanding for Services to Multiproblem Children and Youth 40 TAC sec.736.701 The Texas Department of Protective and Regulatory Services (TDPRS) adopts an amendment to sec.736.901 concerning coordinated services for multiproblem children and youth, without changes to the proposed text as published in the April 20, 1993, issue of the Texas Register (18 TexReg 2551). The justification for the amendment is to comply with House Bill (H.B.) 7, Article 1, sec.1.06, as passed by the 72nd Texas Legislature, and to comply with the Human Resources Code (HRC), sec.41.0011, as passed by the 71st Texas Legislature. HB 7 transfers all functions, programs, and activities related to the Texas Department of Human Services' (TDHS's) child protective services program from TDHS to TDPRS. The HRC requires TDHS, the Texas Commission for the Blind (TCB), the Texas Department of Health (TDH), the Texas Department of Mental Health and Mental Retardation (TXMHMR), the Texas Education Agency (TEA), the Texas Juvenile Probation Commission (TJPC), the Texas Rehabilitation Commission (TRC) , and the Texas Youth Commission (TYC) to adopt a memorandum of understanding (MOU) to coordinate services for multiproblem children and youth. The adopted amendment, accordingly, includes three substantive changes to sec.736.901. First, in compliance with HB 7, the amendment revises the list of participating agencies by substituting TDPRS for TDHS. Second, it incorporates references to the Health and Human Services Commission established under HB 7. And third, by agreement of all the participating agencies, as specified in sec.41.0011 of the HRC, the amendment incorporates the Model of Community Resource Coordination Groups approved by the Commission on Children, Youth, and Family Services in April 1990. The amendment also includes editorial changes to improve the clarity and directness of the section. The amendment will function by assuring that multiproblem children and youth continue to receive coordinated services from TDPRS, TCB, TDH, TXMHMR, TEA, TJPC, TRC, and TYC. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapter 41, which authorizes TDHS to enter into a memorandum of understanding with the TCB, TDH, TXMHMR, TEA, TJPC, TRC, and TYC regarding the coordination of services to multiproblem children and youth; and under Texas Civil Statutes, Article 4413 (503) historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to the child protective services program from TDHS to TDPRS. 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 May 27, 1993. TRD-9323517 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Protective and Regulatory Services Effective date: July 1, 1993 Proposal publication date: April 20, 1993 For further information, please call: (512) 450-3765