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 V. General Services Commission Chapter 115. Building and Property Services Division Space Allocation 1 TAC sec.115.50 The General Services Commission adopts new sec.115.50, concerning office space allocation for Article I and II agencies in leased or owned space, with changes to the proposed text as published in the September 7, 1993, issue of the Texas Register (18 TexReg 5939). The new section implements a new statutory limitation on space allocation. In subsection (e), under the definition of "Usable Office Space," reference is corrected from "subsection (c)" to "subsection (d)." Under subsection (d)(1), "hospital space" is added to the list of facility types to which the section does not apply, to more clearly limit application to office facilities. Under subsection (d)(2), "cafeterias" are added to the list of spaces that may be excluded from the calculation of space allocation ratio because this space is generally not within the office environment. Under subsection (d)(2)(B), the word "shared" has been deleted to allow full-time use of a training center by a single agency to qualify it for exclusion from the calculation. Under subsection (e), the definition of "agency head" is revised by removing the phrase "responsive to a policy-making board or commission" in order to include elected or appointed agency heads. Under subsection (f)(1), the first sentence is revised by adding the words "if any" to the end of the last sentence to allow for those instances where the agency head does not report to a governing body. The new section establishes a maximum allocation of office space for agencies under Article I and II of the General Appropriations Act; states types of space to which the rule does not apply; provides definitions; and establishes a procedure for requesting space in excess of the maximum allocation. Comments were received from seven agencies, two non-profit corporations, and two individuals. Concerns were expressed that the rule would limit accessibility of government offices to employees or visitors with disabilities. Flexibility was requested for pilot sites and new models of service delivery, for situations where space is provided at no cost or nominal cost to the state, for staging of any costs of compliance, and for situations of critical public or client service. Several commenters requested a verbatim recitation of the statute. A suggestion was made that, for purposes of the space limitation, "usable office space" should be redefined to include only individual office or work stations and not any support space normally found in an office. Additional exemptions were requested for emergency leases in general and, specifically, for emergency leases of one year or less that are below market rate and can be cost-justified. An additional exemption was requested for lease space obtained from local governmental entities. An additional exemption was requested for cases in which an agency head certifies in writing that adherence to the square-footage limitation will sacrifice critical public or client services. Additional exemptions were requested for non-APA hearing rooms, internal hallways, file rooms, supply and storage rooms, conference rooms, drafting and related architectural/engineering plan storage space, rooms required for "reasonable accommodation" of individuals under the Americans with Disabilities Act, spare offices for an agency's own itinerant staff, and for growth. Site exemptions were requested for sites with 20 or fewer employees, 30 or fewer employees, and sites where space-reduction is not cost-effective. A suggestion was made that, at co-location sites, it be stated that each agency will be accountable for compliance only as regards its own space, irrespective of any other co-located agencies or the overall site average. Some agencies suggested that the exemption for training centers be expanded to include centers kept in full-time use solely by one agency as well as training centers shared by multiple agencies. The commission agrees with the suggestion, and the rule has been changed accordingly. It was suggested that cafeteria space in office buildings be exempted from the definition of office space. The commission agrees with the suggestion, and the rule has been changed accordingly. It was suggested that hospitals be exempted from the definition of office space. The commission agrees with the suggestion, and the rule has been changed accordingly. An Article I agency asserted that the rule conflicts with its enabling legislation, specifically with its directive "to maintain suitable headquarters for the Department and such other quarters as the director shall deem necessary to the proper functioning of the Department. " Commenting in favor of adoption were: State Preservation Board, Texas Department of Protective and Regulatory Services, Texas Department of Health, and Texas Health and Human Services Commission. Commenting against adoption of the section were: Advocacy Incorporated, Texas Department of Housing and Community Affairs, American Foundation for the Blind, Texas Workers' Compensation Commission, Texas Department of Human Services, Lewis F. Boyd, and Mike Folmar. Concerning the suggestion on agencies' accountability for compliance at co- location sites, the commission believes the rule provides for such accountability and no change is necessary. The commission disagrees with interpretations that this rule applies to individual offices or accommodations rather than to an overall average at the site. The rule does not limit individual spaces nor accommodation of individuals. The commission disagrees that recitation of the statute would be necessary or helpful. The commission disagrees that additional general exemptions are necessary; additional general exemptions would subvert the statutory limit on space and the statutory intent of overall space and cost reductions. The intention of the plan requirement and relief procedure in the rule is to allow some flexibility in accommodating special situations. These are expected to be few in number. The commission disagrees that the enabling legislation of an Article I agency conflicts with the statutory mandate to limit space allocation. The agency commenting is an Article I agency and is subject to Texas Civil Statutes, Article 601b, sec.6. 021. The commission does not agree that the redefinition of "usable office space" would be reasonable in light of industry standard usage of the term, usage in reports to the legislature for several biennia, and usage during legislative committee debate during hearings on House Bill 2626 and Senate Bill 5 of the 73rd Texas Legislature. The commission does not agree that the legislative intent of the limitation on space allocation would be accomplished by reliance upon a general certification by the agency head. An independent finding by the commission is intended to identify possible opportunities for savings or to support the agency's case that specific additions were, in fact, critical. The new rule is adopted under Texas Civil Statutes, Article 601b, sec.6.021, which directs the commission to limit space allocation as set forth in the rule. sec.115.50. Space Allocation. (a) Texas Civil Statutes, Article 601b, sec.6.021, require the commission to allocate space to state agencies in the best and most efficient manner possible and provides that the commission may not allocate space to an Article I or II Agency that exceeds an average of 153 square feet for each agency employee for each agency site for usable office space. (b) By August 31, 1995, office space under the commission's jurisdiction shall be allocated to Article I or II agencies at an average space allocation ratio of not more than 153 square feet of usable office space per agency employee for each agency site. For the purpose of calculating the space allocation ratio at a particular site, all offices, workstations, workspaces, storage spaces, support spaces, and circulation spaces within the agency's net usable square-footage shall be included except that type of space listed in subsection (d) of this section. (c) Each state agency shall propose a plan acceptable to the commission for meeting the target allocation. Such plans shall be submitted by March 31, 1994. (d) This section applies to use of office facilities obtained through the commission including both state-owned and leased space. (1) This section does not apply to: (A) agency sites where 15 or fewer employees are located; (B) aircraft hangar space; (C) radio antenna space; (D) boat storage space; (E) vehicle parking space; (F) residential space for a Texas Department of Mental Health and Mental Retardation program; (G) residential space for a Texas Youth Commission program; (H) space to be utilized for less than one month for meetings, conferences, seminars, conventions, displays, examinations, auctions, or similar purposes; (I) warehouse space; (J) laboratory space; (K) storage space exceeding 1,000 gross square feet; (L) hearing rooms required to conduct hearings required under the Administrative Procedure Act, the Government Code, Chapter 2001; (M) library space; or (N) hospital space. (2) The following types of rooms, when clearly enumerated in space requests, will be excluded by the commission from calculation of the space allocation ratio: (A) state or regional computer operations centers; (B) full-time, state or regional training centers; (C) rehabilitation workshops; (D) client waiting areas at client-service locations; (E) client training classrooms; (F) space provided to itinerant staff of another agency at client-service locations; (G) playrooms at client-service locations; (H) observation rooms in clinical or protective services offices; (I) cafeterias; (J) conference rooms scheduled by the commission for shared use; (K) telephone/data closets; (L) trial preparation rooms and litigation file rooms at litigation offices of the Attorney General; (M) testing areas and public waiting areas at Department of Public Safety driver license offices; (N) medical examination rooms and clinical laboratories of the Department of Health; (O) storage areas for pharmaceuticals and medical supplies or for client equipment and appliances; and (P) a pro rata share of internal circulation space associated with excluded uses at the site. (e) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. Agency employee -the full-time equivalent of a person performing services on-site under the direction of a state agency, including hours worked by "full- time employees", "part-time employees" and "consultant and contract individuals" as those terms are defined by the State Auditor; including employees paid from funds maintained outside the Treasury, and including hours worked by volunteers performing necessary services. Agency head-the highest-ranking executive officer with full-time responsibility for the operations of the agency. Agency site-a building or building complex on a single site or under a single lease contract, where agency business is transacted or services are provided. Article I or II agency-a state agency listed in Article I or II of the General Appropriations Act. Net usable square feet-An area within the exterior walls of a building identified as needed by the occupying agency to carry out its function, including interior hallways for the exclusive use of the occupying agency, but shall not include areas reserved for: (A) public hallways, restrooms, stairwells, and elevator shafts; (B) mechanical rooms or closets for heating, air conditioning, plumbing, janitorial, electrical, telephone, and other general building services; (C) interior atriums, courts, etc., for public use; and (D) fire tower and fire tower court. Space allocation ratio-the ratio of the total usable office space (in square feet) to the total number of agency employees at the subject site. At sites where two or more agencies are co-located, the sum of agency employees at the site shall be considered. Space use study -a study conducted by the commission to determine space requirements for the necessary functions of state agencies. State agency- (A) any department, commission, board, office, or other agency in the executive branch of state government created by the constitution or a statute of this state, except the Texas High-Speed Rail Authority; (B) the Supreme Court of Texas, the Court of Criminal Appeals of Texas, a court of civil appeals, or the Texas Civil Judicial Council; or (C) a university system or an institution of higher education as defined in the Texas Education Code, sec.61.003, as amended, other than a public junior college. Usable office space-for the purpose of calculating an agency's space allocation ratio, that portion of the net usable square feet of an agency site which houses agency staff and operations other than those rooms specifically excluded under subsection (d) of this section. (f) If an agency desires more than 153 square feet of usable office space per agency employee at a particular site, a written request must be submitted to the commission, demonstrating that it meets one of the criteria in subsection (g) of this section. (1) Each request must be signed by the agency head and the chairman of the agency's governing body, if any. This authority may not be delegated. (2) The commission will grant or deny a request in writing. (3) A summary of all requests and a copy of any requests granted by the commission will be provided to the Legislative Budget Board, the Governor's Budget and Planning Office, and the chairman of the House Appropriations Committee. (g) The commission may allocate usable office space in excess of 153 square feet per agency employee, if the commission determines that: (1) a strict application of the standard to a given site would unavoidably and critically impair an agency's functions; (2) the number of persons routinely working in a space is substantially different from the agency employee calculation; (3) based upon a space use study conducted by the commission, a particular type of space should be excluded; or (4) a request is consistent with an agency's plan, previously accepted by the commission, for implementation of this rule. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1993. TRD-9332931 Judith M. Porras General Counsel General Services Commission Effective date: December 23, 1993 Proposal publication date: September 7, 1993 For further information, please call: (512) 463-3583 Chapter 117. Centralized Services Division Mail and Messenger Services 1 TAC sec.117.31 The General Services Commission adopts an amendment to sec.117.31, concerning mail and messenger services, without changes to the proposed text as published in the October 5, 1993, issue of the Texas Register (18 TexReg 6779). The amendment to sec.117.31 streamlines and consolidates existing rules. The amendment to sec.117.31 outlines the scope of mail and messenger services for state agencies, and adds provisions required by Chapter 906, Acts, 73rd Legislature, (1993), regarding acquisition of mail processing equipment and services and mail practices guidelines. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 601b, which provide the General Services Commission with the authority to promulgate rules to accomplish the purpose of the Article. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1993. TRD-9332930 Judith Porras General Counsel General Services Commission Effective date: December 23, 1993 Proposal publication date: October 5, 1993 For further information, please call: (512) 463-3583 1 TAC sec.sec.117.32-117.34 The General Services Commission adopts the repeal of sec. sec.117.32-117.34, concerning mail and messenger services, without changes to the proposed text as published in the October 5, 1993, issue of the Texas Register (18 TexReg 6780). The significant content of the repealed sections is consolidated in sec.117. 31. The repeals consolidate existing rules, delete burdensome language, and will benefit the public through simplified regulations. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 601b, which provide the General Services Commission with the authority to promulgate rules to accomplish the purpose of that Article. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1993. TRD-9332929 Judith Porras General Counsel General Services Commission Effective date: December 23, 1993 Proposal publication date: October 5, 1993 For further information, please call: (512) 463-3583 Chapter 125. Travel and Transportation Division Travel Management Services 1 TAC sec.125.19 The General Services Commission adopts an amendment to sec.125.19, concerning the State Travel Management Program, with changes to the proposed text as published in the October 5, 1993, issue of the Texas Register (18 TexReg 6780). The amendment conforms to Senate Bill 381, Part 3, sec. sec.3.01-3.04, 73rd Legislature, concerning institutions of higher education and their use of travel contracts, and limits for purchase and reimbursement of commercial airline and rental car transportation. In sec.125.19(h), "travel voucher" was changed to "payment voucher", and an exception for promotional companion airfares was added in sec.125.19(f)(12). The section specifies under what circumstances institutions of higher education are required to use the contracts for travel services and specifies the conditions under which purchase and reimbursement of airline and rental car transportation may be greater than the contract rates established by the commission. Comments were received from two persons. One commenter expressed concern that requiring mandatory use of the travel contracts by higher education for only those travel services purchased from state funds would increase their travel program administrative costs because of the need to administer separate travel policies based on funding sources. This commenter also questioned the application of sec.125.19(f)(11) as it related to non-state employees and contractors who might travel at state expense. The commenter also raised procedural questions regarding coding on payment vouchers required by the comptroller and questioned why use of the travel contracts was mandatory and not optional for those agencies who want to use their funding wisely. Another commenter felt that the use of the term "travel voucher" was too restrictive and that there was no allowance for the use of "Friends Fly Free" or other companion-type air fares. This commenter also expressed concern that no provision was made for payment of "Passenger Facility Charges" which make the total amount of airline tickets greater than the contracted rates. The University of Houston and the General Land Office commented against adoption of the section. The commission disagrees that administrative cost increases are required as a result of the amendment. The commission believes that legislative intent is to permit, not mandate, exclusion of local funds from use of the commission's travel contracts. Therefore, it is the option of each institution to consider whether to have separate travel policies based upon source of funds along with any resulting increases in administrative costs. Section 125.19(f)(11) is necessary to authorize payment of more than the contract rate or fare to persons who through contractual restrictions or definitions are not eligible to use the state's contract fares. Travel voucher coding requirements are not within the authority of the commission and therefore cannot be addressed in the amendment. However, it is expected that specific information regarding voucher requirements will be provided by the comptroller of public accounts. The commission disagrees that use of travel contracts should be optional. Studies of both private business and public sector travel programs, as well as actual experience with the state's travel program, have shown that there is a strong positive correlation between strong, formal, written travel policies and greater achievement in savings. Several of the airlines who proposed contract rates to the state in June, 1993, advised that their interest in offering the state contract rates was in large measure due to the state's strong travel policy. The commission agrees with the suggestion regarding the term "travel voucher" and that there should be a condition for "companion" fares. Section 125.19(h) has been revised and sec.125.19(f)(12) has been added. Passenger Facility Charges, like surcharges or other mandatory fees, are not included in the commission's contract rates and are therefore outside the definition of the contract fare or rate for the purpose of maximum reimbursement amount. Section 125.19(i) has been added to insure accurate communication annually of the contract rates and fares and what charges are and are not included. The amendment is adopted under Texas Civil Statutes, Article 601b, sec.14.01, which provide the General Services Commission with authority to promulgate rules to accomplish the purpose of Article 14. sec.125.19. Participation by State Agencies. (a) Except as otherwise provided in this sec.125.19, state agencies in the executive branch of state government shall participate in the program and use the travel agency, charge card, rental car, airline, hotel, and other travel service contracts that are effective for at least a 12-month term. Institutions of higher education are not required to use the travel agency contracts, but are required to use all other contracts when such purchases are made using general revenue funds or educational and general funds as defined by the Education Code, sec.51.009. (b)-(e) (No change.) (f) The contracts for travel services must be used as required by sec.sec.125.1-125.21 of this title (relating to Travel Management Services) unless the following conditions exist. State agencies shall establish procedures to comply with this subsection and submit them to the commission for approval within 90 days after the effective date of this section. Travel agent contracts are not affected by the conditions listed in paragraphs (4)-(12) of this subsection. (1) the traveler is already in travel status which renders the use of a contract travel agent impractical or unnecessary; (2) travel is undertaken as part of a group program for which reservations must be made through a specified source to obtain a specified rate or service; (3) a contract travel vendor cannot provide services in the time period required to accomplish the purpose of the travel; (4) a contract travel vendor's services are not available in a location that will reasonably allow the business requirements of a traveler to be fulfilled; (5) a contract vendor is unable to provide the required services because it is sold-out or does not offer services in the city being visited; (6) alternative rental car or hotel arrangements can be made at a lower total cost than the contract hotels or rental car companies. For rental cars, total costs include the base rate, loss/damage waiver protection, mileage charge, surcharges, and cost for comparable liability insurance protection. For hotels, the cost of the guest room net of taxes shall be used to compare total costs; (7) a contract airline offers a fare lower by any amount than the contract fare; (8) a non-contract airline offers a published fare to the general public which results in a lower total trip cost, including travel time, to the agency. However, lower or identical airfares offered to state travelers only are not included within this exception; (9) travel is undertaken by persons with disabilities, by persons transporting prisoners or other persons in the custody of the state, or in a medical emergency; (10) use of contract travel vendors may present a security or safety risk to the traveler; (11) travel is by persons who under sec.125.1 of this title (relating to General) are not eligible to use the contract services or rates; or (12) promotional air fares used by two or more travelers on a companion basis resulting in an average air fare for each traveler lower than the individual contract fare. (g) (No change.) (h) A state agency required to use the travel services contracts may not purchase or reimburse a person for the purchase of commercial airline or rental car transportation in an amount exceeding the contract rate established by the Commission unless a condition identified in subsection (f)(3)-(5) or (9)-(12) of this section exists. The existence of the condition must be indicated on or with the payment voucher as specified by the comptroller of public accounts. (i) Contract rates will be communicated by the commission on an annual basis to state agencies and the comptroller of public accounts. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1993. TRD-9332932 Judith M. Porras General Counsel General Services Commission Effective date: December 23, 1993 Proposal publication date: October 5, 1993 For further information, please call: (512) 463-3583 Part XII. Advisory Commission on State Emergency Communications Chapter 255. Finance 1 TAC sec.255.1 The Advisory Commission on State Emergency Communications adopts an amendment to sec.255.1, without changes to the proposed text as published in the August 13, 1993, issue of the Texas Register (18 TexReg 5383). The section provides the means for funding 9-1-1 systems statewide, taking into consideration the agency's approved strategic plan. The section increases 9-1-1 surcharge rate from 2/10 of 1.0% to 3/10 of 1. 0%. The section provides official notice to telephone companies to bill customers the fee increase on long-distance service. A total of 16 entities responded favorably; three recommended keeping the rate at 2/10 of 1.0%; and one would approve if funds collected from its area were to be redirected to that area. Commenting in favor of adoption were Concho Valley Council of Governments, Denco Area 9-1-1 District, Crosby County, East Texas Council of Governments, Cochran County, Lubbock Emergency Communication District, Lamb County, Texas Association of Regional Councils and the 9-1-1 Committee, Middle Rio Grande Development Council, Brazos Valley Development Council, Terry County, South Texas Development Council, Rio Grande Council of Governments, Coastal Bend Council of Governments, and Motley County. Commenting against adoption were Greater Harris County 9-1-1 Network, El Paso County 9-1-1 District, Central Texas Council of Governments, and 9-1-1 Network of East Texas. The ACSEC rejects recommendations by Greater Harris County 9-1-1 Emergency Network, El Paso County 9-1-1 District, and the 9-1-1 Network of East Texas to keep surcharge fee at 0.2% due to forecasted strategic plan funding needs; and rejects Central Texas Council of Governments' opposition to the increase unless funds collected from area are redirected to that area. The surcharge is designed to be used for statewide purposes; it is not possible to trace money collected by area nor can it be known whether reallocation to some areas will occur. The amendment is adopted under the Health and Safety Code, Chapter 771, which provides the Advisory Commission on State Emergency Communications with the authority to administer the implementation of statewide 9-1-1 systems. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333046 Mary A. Boyd Executive Director Advisory Commission on State Emergency Communications Effective date: December 24, 1993 Proposal publication date: August 13, 1993 For further information, please call: (512) 327-1911 1 TAC sec.255.9 The Advisory Commission on State Emergency Communications adopts new sec.255.9, without changes to the proposed text as published in the August 13, 1993, issue of the Texas Register (18 TexReg 5383). The new section will provide for the funding of Poison Control Centers throughout Texas. The new section sets the surcharge fee at 3/10 of 1.0% and authorizes the telephone companies to bill customers for long-distance service and remit funds to the Advisory Commission on State Emergency Communications for program implementation. Of five responses, three were favorable to rule, and two proposed. Recommendations were that delineation be made between the 0.3% for State 9-1-1, and 0.3% for Poison Control Program. The ACSEC adopted this recommendation. Commenting in favor of adoption were Kerr Emergency 9-1-1 Network, Middle Rio Grande Development Council, and McLennan County Emergency Assistance District. Commenting against adoption were Brazos Valley Development Council and South Texas Development Council. South Texas Development Council opposes funding so many centers and the proposed surcharge fee; Brazos Valley Development Council opposes the need to assess the surcharge of 0.3%, does not recognize the need for a network of seven poison control centers, and does not recommend adoption of the proposal to establish a surcharge. The ACSEC rejects recommendations, as Health and Safety Code, Chapter 777, designates six regional centers and requires the Texas Department of Health and the ACSEC to provide for funding of the centers. The new section is adopted under Senate Bill 773, which provides Advisory Commission on State Emergency Communications with the authority to assess surcharge fee for the funding of designated Poison Control Centers and its program initiatives. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333045 Mary A. Boyd Executive Director Advisory Commission on State Emergency Communications Effective date: December 24, 1993 Proposal publication date: August 13, 1993 For further information, please call: (512) 327-1911 TITLE 10. COMMUNITY DEVELOPMENT Part V. Texas Department of Commerce Chapter 182. Small Business Assistance Subchapter B. Historically Underutilized Businesses 10 TAC sec.sec.182.50-182.57 The Texas Department of Commerce adopts the repeal of the sec.sec.182.50-182. 57, concerning Historically Underutilized Businesses, without changes to the proposed text as published in the September 3, 1993, issue of the Texas Register (18 TexReg 5876). The repeal is necessary, because the responsibility for historically underutilized business certification has been transferred from the Texas Department of Commerce to the General Services Commission. No comments were received from the public concerning the proposed repeal of the historically underutilized businesses rules. The repeals are adopted under the authority of the Texas Government Code, sec.481.021(a)(1) and sec.81.103(23), which provide the Texas Department of Commerce the authority to adopt and enforce necessary rules and the Administrative Procedure Act, Subchapter B, Rulemaking (Vernon's Session Laws 1993), which sets forth the rulemaking procedure to be followed by state agencies in proposing and adopting rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 6, 1993. TRD-9333084 Michael Regan Chief Administrative Officer Texas Department of Commerce Effective date: December 27, 1993 Proposal publication date: September 3, 1993 For further information, please call: (512) 320-9401 Chapter 190. Procedures of the Board 10 TAC sec.sec.190.1-190.7 The Texas Department of Commerce adopts new sec.sec.190.1-190.7 setting forth the operating procedures of the Texas Department of Commerce and its Policy Board, without changes to the proposed text as published in the October 22, 1993, issue of the Texas Register (18 TexReg 7335). Section 190.1 of the rules contains general provisions, including the composition of the Policy Board, the officers and their duties, tenure and removal policies, compensation and committees and advisory boards. Section 190.2 contains the general powers of the Policy Board and provides that the Policy Board may delegate to the agency's executive director all of its powers except those relating too the issuance of bonds. It also provides for rulemaking authority and for annual reports to be made to the governor and to the legislature during each regular session thereof. It also requires that the Policy Board establish the amount of bond that shall be executed by the executive director, requires that the agency's internal auditor report to the Policy Board and requires the agency's staff to provide administrative support to the Policy Board. Section 190.3 relates to public meetings of the Policy Board, requiring, at a minimum, quarterly meetings at such other times as called by the Chairman. Section 190.3 requires that the meetings be open, establishes what constitutes a quorum of the Policy Board and provides information on how the public may address the Policy Board. Further, sec.190.3 requires that the executive director, or his or her designee, attend the Policy Board meetings and serve as the liaison between the Policy Board and the public, and that the general counsel or his or her designee shall attend the Policy Board meetings to provide legal advise to the Policy Board and to the executive director and to perform other duties as delegated. section 190.3 also provides that the Policy Board meetings will be conducted in accordance with Robert's Rules of Order unless to do so would conflict with State law. It also provides that reasonable accommodation will be made for disabled or non-English-speaking persons to attend Policy Board meetings. Section 190.4 sets forth the conflict of interest provisions pertaining to Policy Board members. Similarly, sec.190.5 sets forth the conflict of interest provisions pertaining to Policy Board members when they act upon finance programs administered by the Texas Department of Commerce. Section 190.6 provides that Policy Board members are not individually liable for damage or injury resulting from their performance of official duties. It also provides that they are not individually liable for contracts, commitments and agreements which they execute. Section 190.7 establishes a procedure through which the public can communicate with, or complain to the Policy Board. No comments were received regarding adoption of the new sections. The new sections are adopted under the authority of the Texas Government Code, sec.481.0043(d), which requires that the Policy Board develop and implement policies that provide the public with a reasonable opportunity to appear before it and to speak on any issue under the jurisdiction of the Policy Board; the Texas Government Code, sec.481.0044(a), which requires that the Policy Board adopt rules for its internal management and control; and the Texas Government Code, sec.481.005(d), which requires, among other things, that the Policy Board shall establish policy and adopt rules that it may adopt under law. The rules are further adopted under the authority of the Administrative Procedure Act, Subchapter B, Rulemaking (Vernon's Session Laws 1993), which sets forth the rulemaking procedure to be followed by state agencies in proposing and adopting rule. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 6, 1993. TRD-9333085 Michael Regan Chief Administrative Officer Texas Department of Commerce Effective date: December 27, 1993 Proposal publication date: October 22, 1993 For further information, please call: (512) 320-9401 TITLE 22. EXAMINING BOARDS Part IV. Texas Cosmetology Commission Chapter 83. Sanitary Rulings 22 TAC sec.sec.83.2-83.6, 83.9-83.11, 83.13-83.18, 83.21-83.24, 83.26, 83.28, 83.30 The Texas Cosmetology Commission adopts amendments, to sec.sec.83.2-83.6, 83. 9-83.11, 83.13, 83.14-83.16, 83.17, 83.21-83.24, 83.26, 83.29, 83.30 and new sec.83.15 and sec.83.18. Sections 83.2, 83.4, 83.5, 83.6, 83.10, 83.11, 83.18, 83.21, 83.23, 83.24, 83.29, 83.30 are adopted without changes and will not be republished. Sections 83.3, 83.9, 83.13, 83.14, 83.15, 83.16, 83.17, 83.22, and 83.26 are adopted with changes to the proposed text as published in the October 19, 1993, issue of the Texas Register (18 TexReg 7254). The new sections and amendments as adopted will better project the public health and welfare. The new sections and amendments will require more comprehensive sanitation in the salons, therefore decreasing the spread of communicable and infectious diseases. Concerning sec.sec.83.13-83.17, 83.26-to allow for EPA registered containers for sanitized implements. Section 83.6-allow animals in the salons. Armstrong McCall and Flair Salon commented on the proposed sections. Agency agreed with comments by Armstrong McCall because changes would better protect the public health and welfare. Agency disagreed with comments made by Flair Salon because the Commissioners feel that animals in the salon or school environment are unsanitary. The amendments and new sections are adopted under Texas Civil Statutes, Article 8451a, which provide the Texas Cosmetology Commission with the authority to issue rules and regulations consistent with the Act that are needed to protect the public's health and welfare. sec.83.3. Proper Quarters. (a) (No change.) (b) Linoleum or tile fixtures must be tight with no broken areas or badly worn spots. Floors shall be constructed of smooth, hard-finished materials, such as quarry tile, terrazzo, ceramic tile, etc., or covered with washable composition materials such as rubber-base greaseless asphalt tile may be used. Hair cuttings must be immediately swept up and deposited in a disposal receptacle when the haircut is finished. Carpeting is not allowed in shampoo and working areas, but is allowed in reception, dryer, manicuring, and facial areas provided it is cleaned on a regular basis and kept in a sanitary condition. Those establishments that currently have carpeting in the shampoo and work areas are not required to remove said carpeting until such time as it can no longer be maintained in a sanitary condition. No carpet shall be permitted closer than six feet from the outermost edge of the working station. No carpet shall be permitted in the dispensary area as it is part of the clinic floor, and no carpet shall be permitted from the shampoo bowl to the extended end of the shampoo chair. Walls and fixtures shall be of a sanitary nature. There must be evidence of routine cleaning and proper maintenance. Ceilings must be properly maintained. (c) The use of a cosmetology establishment as living, dining, or sleeping quarters shall be prohibited. Residential salons shall maintain a separate entrance which shall not open off from living, dining, or sleeping quarters. If a door leads into the residence, it shall be a solid door that remains locked during business hours. (d) Doors and windows shall be effectively screened. Necessary ventilation shall be provided at all times and adequate light shall be provided for the operator. (e) Styling stations, working stations, and manicure tables must be disinfected and cleaned prior to client services. All drawers and shelves of the above being used for the storage of rollers, brushes, combs, pins, nets, and equipment must be disinfected with a hospital (grade) EPA registered tuberculocidal disinfectant solution, and shall not be used for storage of non- related cosmetology equipment or supplies. One drawer or cabinet may be designated for storage of personal items. (f) The premises shall be kept free of rodents, vermin, flies, or other similar insects. (g) Equipment such as dryer heads and filters must be kept clean at all times. sec.83.9. Furniture and Equipment. (a) Furniture, equipment, and or other fixtures shall be of a washable material and kept clean and in good repair. Electrical equipment shall be kept sanitary and safe at all times. (b) Broken equipment must be removed. (c) Shampoo bowls will be cleaned and disinfected with a hospital (grade) EPA registered tuberculocidal disinfectant solution after each use, prior to being used for another client. sec.83.13. Implements Combs, Brushes, and Rollers. (a) Each cosmetologist is required to have implements and tools that have been cleaned and disinfected with a hospital (grade) EPA registered tuberculocidal disinfectant solution before servicing each client. (b) Rollers, pins, clips, combs, brushes, and cold wave rods shall not be stained from rinses or hair spray, lacquer, or setting lotions. (c) At no time shall a cosmetology student, or a licensed cosmetologist, keep combs or brushes in their pocket. (d) When cold wave rods are not in use, they must be covered with a cover or towel, until ready for use. Cold wave rods must be free from any solution, hair end papers, clippies, hairpins, and any additives. (e) Scissors, razors, clipper blades, or other related equipment and supplies must be disinfected with a hospital (grade) EPA registered tuberculocidal disinfectant solution, must be clean to sight and touch, and stored in an airtight container. Curling irons must be clean to sight and touch. (f) All types of brushes, all types of rollers, clips, and other hair accessories which have become soiled in any manner shall be placed in a properly labeled receptacle provided for that purpose. (g) No other items are allowed in drawers or covered containers with clean combs and brushes. Drawers and containers must be kept closed at all times. sec.83.14. Definition of Wet and Dry Sanitizers. (a) A wet sanitizer is a container large enough to hold a disinfectant solution in which the objects to be disinfected are completely immersed. A wet sanitizer must have a cover to prevent contamination of the solution. The solution must be a hospital (grade) EPA registered tuberculocidal disinfectant solution. Before immersing objects in a wet sanitizer containing a disinfectant solution, be sure to: (1) remove hair and all debris from the object; (2) wash thoroughly with hot water and soap; (3) rinse thoroughly with clean water and dry thoroughly with a clean towel; (4) keep the wet sanitizer clean at all times. The wet sanitizer must be kept clean at all times; and (5) after immersion, wipe dry with a clean towel and store in a dry cabinet, or receptacle, or in an EPA registered disinfectant/storage system. (b) A dry sanitizer is an airtight container. The disinfected implements are kept clean by placing them in the cabinet until ready for use. (c) (No change.) sec.83.15. Disinfecting Facial Implements. (a) Each facial specialist/esthetician must have a wet sanitizer. Tweezers must be disinfected with a hospital grade EPA registered tuberculocidal disinfectant solution during service. Brushes, sponges, chamois, spatulas, and galvanic electrodes must be washed in soap and water and disinfected in a hospital (grade) EPA registered tuberculocidal disinfectant solution and stored in a dry sanitizer or in an EPA registered disinfectant/storage system. Metal implements must be disinfected in said solution and stored in a dry sanitizer. (b) Each facial specialist/esthetician must have a wet and a dry sanitizer. (c) Disposable wooden spatulas must be disposed of after each use. (d) Disposable rubber or latex gloves must be worn at all times when removing wax. (e) Disposable rubber or latex gloves must be worn at all times in doing extractions during facials. (f) All depilatories and all paraffin wax which has been adhered to a clients hands, feet, body, or removed from the pot must be disposed of after each use and not be re-used under any circumstances. (g) All wax pots will be cleaned and disinfected with a hospital (grade) EPA registered tuberculocidal disinfectant solution with no sticks left standing in the wax at any time. The wax remaining in the pot may remain, all wax removed from the pot must be disposed of. (h) Headrests of chairs shall be covered with a clean towel or paper sheet for each client. (i) All areas of the body being treated in a wax service must be cleaned with a broad spectrum antimicrobial agent. sec.83.16. Disinfecting Manicure Instruments While in Use on Client. (a) Each manicurist must have wet and dry sanitizers or an EPA registered disinfectant/storage system at his or her station. (b) Nail brushes, nippers, finger bowls, washable files, washable buffers, and other instruments must be washed in soap and water, thoroughly dried and then completely immersed in a hospital (grade) EPA registered tuberculocidal disinfectant solution and placed in a dry sanitizer or an EPA registered disinfectant/storage system after each use. (c) After disinfecting in a hospital (grade) EPA registered tuberculocidal disinfectant solution, implements must be stored in a UV light cabinet or in an EPA registered disinfectant/storage system while not in use. (d) Emery boards and lotion warming cups must be disposed of after each use. (e) Clean towels must be used with each client. (f) Manicurists will also be able to pedicure the feet, and must follow the same sanitary procedures as established for manicuring. (g) All contaminants in the breathing atmosphere shall be exhausted to the outdoor air. (h) Under no condition will a manicurist, or manicuring salon, use the product Methyl methacrylate monomer in doing sculptured nails. (i) Table tops must be disinfected with a hospital (grade) EPA registered tuberculocidal disinfectant solution before servicing each client. sec.83.17. Instruments and Supplies. (a)-(c) (No change.) (d) Razors, scissors, tweezers, combs, brushes, all kinds of rubber discs and all other parts of vibrators, permanent wave apparatus and all other utensils, appliances, or anything that comes into contact with the head, face, neck, or hair, must be disinfected with a hospital (grade) EPA registered tuberculocidal disinfectant solution and kept in a dry sanitizer or an EPA registered disinfectant/storage system after each use. (e) (No change.) (f) Shampoo bowls, cups, finger bowls or similar objects, will be disinfected with a hospital( grade) EPA registered tuberculocidal disinfectant solution after each use and prior to being used for another client. (g) Electrical appliances will be disinfected by wiping the surface with a cotton pad dampened a hospital (grade) EPA registered tiberculocidal disinfectant solution. The solution must remain on the surface for at leat ten minutes. (h) (No change.) sec.83.22. Infectious Disease. (a) All cosmetologists should use the utmost caution in waiting on or in rendering services to any person having or suspected of having an infectious disease. Cosmetologists, after having waited on such a person, or suspected person, shall use thorough disinfecting of towels, clothes, implements, and utensils used by them in rendering work. (b) (No change.) sec.83.26. Hairgoods and Related Equipment. (a) Soiled wigs and hairpieces shall be kept separate by placing in a closed bag to prevent the spread of disease until ready to be disinfected. (b) (No change.) (c) Finished wigs and hairpieces shall be placed away from soiled wigs and hairpieces until ready to be returned to the client. (d) Bowls or containers used to clean or color wigs and hairpieces must be disinfected with a hospital (grade) EPA registered tuberculocidal disinfectant solution after completion of each step in the service. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1993. TRD-9332921 Larry Perkins Interim Executive Director Texas Cosmetology Commission Effective date: January 1, 1994 Proposal publication date: October 19, 1993 For further information, please call: (512) 454-4674 22 TAC sec.83.7, sec.83.15 The Texas Cosmetology Commission adopts the repeal of sec.83.7, and sec.83. 15 without changes to the proposed text as published in the October 19, 1993, issue of the Texas Register (18 TexReg 7254). Rule 83.7 has been incorporated into other rules and rule 83.15 has been re- written. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 8451a, which provide the Texas Cosmetology Commission with the authority to issue rules and regulation consistent with the Act that are needed to protect the public's health and welfare. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1993. TRD-9332922 Larry Perkins Interim Executive Director Texas Cosmetology Commission Effective date: January 1, 1994 Proposal publication date: October 19, 1993 For further information, please call: (512) 454-4674 Chapter 89. General Rules and Regulations 22 TAC sec.sec.89.7-89.10, 89.15, 89.16, 89.18, 89.21, 89.23, 89. 25, 89.28- 89.30, 89.34, 89.35, 89.39, 89.42, 89.43, 89.46, 89.50, 89.53, 89.55, 89.72, 89.76 The Texas Cosmetology Commission adopts amendments to sec. sec.89.7-89.10, 89. 15, 89.16, 89.18, 89.21, 89.23, 89.25, 89.28-89.30, 89.34, 89.35, 89.39, 89.42, 89.43, 89.46, 89.50, 89.53, 89.55, 89.72, and 89.76. Sections 89.23, 89.28, 89.35, 89.39, 89.53, 89.55, 89.72, and 89.76 are adopted with changes to the proposed text as published in the October 19, 1993, issue of the Texas Register (18 TexReg 7255). Sections 89.7-89.10, 89.15, 89.16, 89.18, 89.21, 89.25, 89.29, 89.30, 89.34, 89.42, 89.43, 89.46, and 89.50 are adopted without changes and will not be republished. The amendments were adopted to protect the public health and welfare. The adoptions have updated the language of the rules to be consistent with the times and the Statute, and to place into rule what was previously procedure. Comments were received requesting equality between private cosmetology schools and public school cosmetology programs. The Texas Association of Cosmetology Schools commented on the proposed amendments. The amendments are adopted under Texas Civil Statutes, Article 8451a, which provide the Texas Cosmetology Commission with the authority to issue rules and regulation consistent with the Act that are needed to protect the public's health and welfare. sec.89.23. Transfer of Hours Between Course. A student enrolled for a specialty course may withdraw and transfer hours acquired to the operator course not to exceed the amount of hours of that subject in the operator curriculum. Students enrolled in the operator course may withdraw and transfer up to the maximum speciality hours within the operator curriculum for that course. sec.89.28. Withdrawal from School. (a) A student may withdraw from school at any time by notifying the school in writing. Cosmetology schools or programs shall drop the student if a student is not in attendance for 30 consecutive working days, unless the student is on an approved leave of absence. (b) Upon withdrawal, and provided that the agreed tuition and fees have been tendered according to Texas Civil Statutes, Article 8451a, sec.23, a student is entitled to an official transcript of hours taken and practical application performed at the school withdrawn from. The transcript and practical applications may be picked up in person by the student or his/her agent or mailed at the student's option. The transcript and practical applications must be ready for pickup or, if mailed, postmarked within ten calendar days of receipt, by the school, of notice of withdrawal. (c) Whenever a student withdraws from a school, a transcript must be prepared showing the number of hours and practical applications completed. A copy of the transcript and practical applications must be kept in the students file for 48 months and the copy must be made available at the request of the commission inspector. (d) A school may prepare a transcript and practical applications for a student if it believes the student has withdrawn but has not received notice of withdrawal. sec.89.35. Uniforms. (a) Cosmetology school students shall wear a uniform of washable material with armpits and chest covered as prescribed by the school. Tank tops, lingerie, see- through fabrics, topless uniforms, and bare feet are not allowed. (b) Salon employees and independent contractors shall wear an attire of washable material with armpits and chest covered. Tank tops, lingerie, see- through fabrics, topless uniforms, and bare feet are not allowed. (c) Applicants for a Commission examination must appear in a lab coat, and black or white dress slacks or skirt, or an all white professional uniform. (1) Dress slacks or dress skirt: black or white, no knits must be plain and clean. (2) Dress blouse or shirt: with collar, white only, no knits must be plain and clean. (3) Three-quarter length laboratory coat: white only, no knits must be a plain, clean, professional three-quarter length or longer lab coat. (4) An all white professional type uniform of washable material with the armpits covered. No knits. (5) Shoes: (black or white), no heels over one inch tall must be clean and plain. No sandals, no boots, no demi-boots, no open-heeled or open-toed shoes, no high-topped tennis shoes. Any shoe which has loops or holes for laces must be laced. Slip-on style shoes are acceptable. sec.89.39. New Salon. (a) (No change.) (b) Beauty salon requirements. (1) (No change.) (2) Required equipment is as follows: (A)-(D) (No change.) (E) one wet sanitizer; and (F) one dry sanitizer or an EPA registered disinfectant/storage system. (c) Additional requirements for all salons. (1)-(2) (No change.) (3) A restroom must be directly connected to the salon with a sink or a public restroom available for the use of clients. (4)-(10) (No change. ) (d) (No change.) (e) Facial salon requirements. (1) (No change.) (2) Required equipment is as follows: (A) (No change.) (B) one wet sanitizer; (C) one dry sanitizer or an EPA registered disinfectant/storage system; (D)-(E) (No change.) (3) In salons opening after January 1, 1994, each facial specialty/esthetician salon must have hot and cold running water within the facility. (f) Manicurist salon requirements. (1) (No change.) (2) Required equipment is as follows: (A)-(B) (No change.) (C) two professional-type chairs for clients; (D) one wet and one dry sanitizer or EPA registered disinfectant/storage system at each table; and (E) (No change.) (3) Each manicure salon must have hot and cold running water within the facility. (g) Manicure/Facial specialty salon requirements. (1) (No change.) (2) Required facial equipment is as follows: (A) (No change.) (B) one wet sanitizer; (C) one dry sanitizer or EPA registered disinfectant/storage system; and (D) (No change.) (3) In salons opening after January 1, 1994, each facial specialty/esthetician salon must have hot and cold running water within the facility. (4) Required manicure equipment is as follows: (A)-(B) (No change.) (C) two professional-type chairs for clients; (D) one wet and one dry sanitizer or EPA registered disinfectant/storage system at each table; and (E) (No change.) (5) Each manicure/facial salon must have hot and cold running water within the facility. (h)-(i) (No change.) (j) No cosmetology establishment shall, in any manner, represent or permit a representation to be made in its behalf that it is a barber shop, whether made by use of a display or device similar to a barber pole or otherwise. It may, however, advertise that services for males are available, with the exception of shaving, trimming or shaving beards or mustaches. sec.89.53. Minimum Requirements for Both Private and Public Cosmetology Schools. (a) The following are the requirements for a private cosmetology school as authorized by the Texas Cosmetology Commission as approved on June 1, 1985. (1)-(3) (No change.) (4) The junior department must contain the following: (A)-(E) (No change.) (F) at least one large wet sanitizer. (5) The senior department must contain the following: (A)-(F) (No change.) (G) wet sanitizer. (6) One semiprivate facial area with two facial chairs and adequate sanitation (client must be protected from public view). (7) (No change.) (8) The school shall have at least one dry sanitizer or an EPA registered disinfectant/storage system (large enough to accommodate junior and senior departments). (9)-(15) (No change.) (b) The following are the requirements for a public school cosmetology program. (1)-(4) (No change.) (5) The school equipment list shall contain: (A)-(E) (No change.) (F) 16 styling stations covered with formica or similar material, with mirror, and 16 styling chairs (swivel or hydraulic); (G)-(N) (No change.) (O) one large wet sanitizer; (P) one dry container or EPA registered disinfectant/storage system for disinfected implements. (6)-(7) (No change.) sec.89.55. Refresher Course. Schools of cosmetology may enroll applicants for the refresher course. A person who holds a valid Texas license may service clients in the school for a 60-day period of time once every three years. The school may receive compensation for services performed by a student holding a valid Texas license; however, the student may not receive compensation. sec.89.72. Curriculum. The curriculum listed has been established by the Texas Cosmetology Commission and must be followed by all cosmetology schools. The curriculum shall be posted in a conspicuous place in the school. A current syllabus and lesson plans for each course shall be maintained by the school and be available for inspection. (1) Operator curriculum. (A)-(B) (No change.) (C) Facial Specialist Curriculum: Total 600 hours. (i) orientation-25 hours; (ii) sanitation, safety, and first aid-25 hours; (iii) anatomy and physiology -90 hours; (iv) chemistry-20 hours; (v) electricity, machines, and related equipment-60 hours; (vi) care of client -15 hours; (vii) facial treatment (Cleansing, masking, therapy)-200 hours; (viii) superfluous hair removal-20 hours; (ix) aroma therapy-15 hours; (x) nutrition-10 hours; (xi) color psychology-10 hours; (xii) make up-75 hours; and (xiii) management-35 hours; (D) Manicure Curriculum: Total 250 hours. (i) orientation-15 hours; (ii) preparation; (iii) equipment and implements -15 hours; (iv) supplies; and (v) procedures-175 hours: (I) basic manicure and pedicure; (II) oil manicure; (III) removal of stains; (IV) repair work; (V) hand and arm massage; (VI) buffing; (VII) application of polish; (VIII) application of artificial nails; (IX) application of cosmetic fingernails preparation to build new nail; and (X) application of nail extensions: (-a-) sculptured nails; (-b-) tips; (-c-) wraps; and (-d-) fiberglass/gels. (vi) Arms and hands. (I) Bones: (-a-) major bones; and (-b-) functions. (II) Muscles-5 hours: (-a-) major muscles; and (-b-) functions. (III) Nerves: (-a-) major nerves; and (-b-) functions. (IV) Skin-5 hours: (-a-) structure; (-b-) functions; (-c-) appendages; (-d-) conditions; and (-e-) lesions. (V) Nails-10 hours: (-a-) structure and composition; (-b-) growth and regeneration; (-c-) nail irregularities; and (-d-) nail diseases. (vii) Bacteriology, Sanitation, and safety measures-15 hours: (I) sanitation: -(-a) definitions; (-b-) importance; (-c-) rules and regulations (T.C.C.); and (-d-) methods; (II) safety measures; (III) hazardous chemicals; and (IV) ventilation odor in salons. (viii) Professional practices -10 hours: (I) Manicuring as a profession: (-a-) vocabulary; and (-b-) ethics. (II) Salon procedures: (-a-) hygiene and good grooming; (-b-) professional attitudes and salesmanship; and (-c-) public relations. (E) Instructor Curriculum: Total 750 hours. (i) orientation (theory)-50 hours; (ii) instruction and theory and lab/clinic operation-350 hours; and (iii) teaching and lab/clinic management-350 hours. (F) Instructor with Two Years Experience Curriculum: Total 250 hours. (i) orientation-10 hours; (ii) learning theory-20 hours; (iii) lesson plans-60 hours; (iv) methods of teaching -60 hours; (v) visual aids preparation and Use-20 hours; (vi) classroom Management-30 hours; (vii) evaluation techniques -30 hours; and (viii) state laws and forms-20 hours. (G) Hairweaving Specialists Curriculum: Total 300 hours. (i) sanitation and safety measures-10 hours: (I) Sanitation: (-a-) definitions; (-b-) importance; (-c-) sanitary rules and regulations, and also general rules and regulations set up by TCC; and (-d-) disinfecting methods of unused hair and fiber. (II) Safety measures: (ii) Professional Practices -10 hours: (I) Hairweaving as a profession: (-a-) vocabulary; and (-b-) ethics. (II) Salon procedures-10 hours: (-a-) hygiene and grooming; (-b-) professional attitudes and salesmanship; and (-c-) public relations. (III) Hairweaving skills-20 hours: (-a-) purpose and effect; (-b-) preparation; (-c-) equipment and implements; (-d-) supplies; and (-e-) procedures-200 hours: (-1-) basic hairweaving; (-2-) repair on hairweaving; (-3-) shampoo and conditioning of woven hair; (-4-) advanced hairweaving; (-5-) special problems; and (-6-) the hairweaver will only be allowed to practice those skills as enumerated in the hairweaving curriculum. (iii) Anatomy and Physiology; Scalp-20 hours: (I) Bones: (-a-) major bones; and (-b-) functions. (II) Muscles: (-a-) major muscles; and (-b-) functions. (III) Nerves: (-a-) major nerves; and (-b-) function. (IV) Blood: (-a-) major blood vessels; and (-b-) functions. (V) Skin: (-a-) structure; (-b-) functions; (-c-) appendages; (-d-) conditions; and (-e-) lesions. (VI) Hair or Fiber used-10 hours: (-a-) structure and composition; (-b-) hair regularities; and (-c-) hair and scalp diseases. (iv) Chemistry in hairweaving: (I) elements, compounds, and mixtures-10 hours: (-a-) properties of; and (-b-) chemistry of water. (II) composition and uses of cosmetics in hairweaving -10 hours. (H) Shampoo and Conditioning Specialist Curriculum: Total 150 hours. Under no conditions will the certificate holder do any other skills but those prescribed in this subparagraph by the Commission. (i) Professional practices -5 hours: (I) shampooing as a profession; (II) vocabulary; and (III) ethics. (ii) Salon procedures-5 hours: (I) hygiene and grooming; (II) professional attitudes and salesmanship; and (III) public relations. (iii) Shampooing and conditioning skills-10 hours: (I) purposes and effects; (II) preparation; (III) equipment and implements; and (IV) supplies. (iv) Procedures-100 hours: (I) basic shampoo techniques on all types of shampoo; (II) application and removal of all types of conditioners; (III) removal of hair color stains; (IV) application of weekly rinses or semi-permanent rinses not requiring hydrogen peroxide; (V) removal of bleaches requiring shampoo; (VI) scalp and neck massage; (VII) removing hair tints requiring shampoo; (VIII) cleansing and conditioning of all hair goods; (IX) hair and scalp analysis; and (X) scalp and hair manipulations. (v) Scalp and Neck; Anatomy and Physiology-10 hours: (I) Bones: (-a-) major bones; and (-b-) functions. (II) Muscles: (-a-) major muscles; (-b-) functions. (III) Nerves: (-a-) major nerves; and (-b-) functions. (IV) Blood: (-a-) major blood vessels; (-b-) functions. (V) Skin: (-a-) structure; (-b-) functions; (-c-) appendages; (-d-) condition; and (-e-) lesions. (vi) chemistry of shampoo and conditioner-10 hours: (I) Elements, compounds, and mixtures: (-a-) properties of; (-b-) acid and alkali (ph); and (-c-) chemistry of water. (II) Composition and uses of shampoo and conditioner. (vii) Sanitation and Safety -10 hours: (I) Sanitation: (-a-) definitions; (-b-) importance; (-c-) TCC rules and regulations and sanitary rulings; and (-d-) methods. (I) Wig Specialist Curriculum: Total 300 hours. (i) Cutting and shaping, scissors and razor-20 hours; (ii) Styling-50 hours; (iii) Cleaning-10 hours; (iv) Sizing-5 hours; (v) Alterations; installation of elastic-10 hours; (vi) Rolling-30 hours; (vii) Drying-5 hours; (viii) Conditioning-10 hours; (ix) Brushing Technique Prior to Styling-10 hours; (x) Combing out-50 hours; (xi) Measuring head for proper size-5 hours; (xii) Preparation of wig on block-5 hours; (xiii) Hot Iron-19 hours; (xiv) Knowledge of color ring; J & L-1 hour; (xv) Coloring, tinting, bleaching -37 hours; (xvi) Eye tabbing-10 hours; (xvii) Identification and recognition; definition-wigs, wiggery, wigology- pertaining to any human, synthetic, or animal hairpiece-10 hours; (xviii) Sanitation and disinfecting -10 hours; and (xix) History, background, and salesmanship-3 hours. (2) (No change.) sec.89.76. Minimum Requirements for Cosmetology School Separate Facility. (a)-(c) (No change.) (d) The practical work area shall contain the following: (1)-(19) (No change.) (20) at least one large wet sanitizer; (21) at least one dry sanitizer or an EPA registered disinfectant/storage system; (22)-(24) (No change.) (e)-(r) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1993. TRD-9332919 Larry Perkins Interim Executive Director Texas Cosmetology Commission Effective date: January 1, 1994 Proposal publication date: October 19, 1993 For further information, please call: (512) 454-4674 22 TAC sec.89.73, sec.89.74 The Texas Cosmetology Commission adopts new sec.89.73 and sec.89.74. Section 89.73 is adopted with changes to the proposed text as published in the October 19, 1993, issue of the Texas Register (18 TexReg 7263). Section 89.74 is adopted without changes and will not be republished. New sec.89.73 was adopted due to an AG Opinion stating that Fashion Photography Salons are under jurisdiction of this agency. Section 89.74 encourages instructors to seek voluntary continuing education. Section 89.73 provides guidelines for the licensing of Fashion Photography Salons. Section 89.74 sets guidelines for voluntary continuing education for instructors. No comments were received regarding adoption of the new sections. The new rules are adopted under Texas Civil Statutes, Article 8451a, which provide the Texas Cosmetology Commission with the authority to issue rules and regulation consistent with the Act that are needed to protect the public's health and welfare. sec.89.73. Fashion Photography Salon Requirements. (a) Employees performing cosmetology services must be licensed by the Texas Cosmetology Commission. (b) No person may engage in the fashion photography business in this state unless a license for the business is obtained as required by the Texas Cosmetology Commission. Any fashion photography business operating prior to the effective date of these rules shall be given 90 days to submit its application and fees to the Commission. (c) High fashion photography business salon requirements. (1) Required floor space shall be a minimum of 180 square feet for the first operator and not less than an additional 110 square feet of working, dispensary, studio, sales, wardrobe, and reception areas for each additional operator, exclusive of restrooms, utility, heating, and/or cooling. (2) Required equipment for the business is: (A) one working station for each operator; (B) one styling chair for each operator; (C) one hand held dryer for each operator; (D) one wet sanitizer; and (E) one dry sanitizer or an EPA registered disinfectant/storage system; (F) one shampoo bowl if performing wet service. (3) Carpeting shall not be allowed in areas where cosmetics are directly applied, but may be used in reception, studio, wardrobe, dryer, and facial areas, provided it is cleaned regularly and kept sanitary. Those establishments that currently have carpeting in shampoo and work areas shall remove the carpeting when it can no longer be maintained in a sanitary condition. (4) The business shall provide hot and cold running water within the salon. (5) A public restroom must be available for the use of clients. (6) An identifiable sign with the name of the high fashion photography business must be displayed. (7) The business shall maintain cabinets for clean linen and closed containers for soiled linen. (8) The business shall maintain a sufficient number of combs and brushes. (9) Floors, walls, and equipment must be clean and sanitary. (10) The business must be properly ventilated and adequately screened unless air conditioned. (11) The business shall post an identifiable sign stating the name, mailing address, and telephone number of the regulatory board (see sec.89.43 of this title (relating to Posted in Salon or School)). (12) The business shall not be operated in conjunction with any establishment selling food or drink, and shall be separated by a solid wall and have a separate entry if located in the same building. (d) The requirements of sec.89.75 of this title (relating to Field Trips) supersede and control over the requirements of sec.89.39 of this title (relating to New Salon) . (e) A high fashion photography business shall be subject to the sanitary rules of sec.83.1 of this title (relating to Enforcement). (f) Any employee of a fashion photography business providing photography, clerical, or other services not involving cosmetology need not be licensed as a cosmetologist by the Texas Cosmetology Commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1993. TRD-9332920 Larry Perkins Interim Executive Director Texas Cosmetology Commission Effective date: January 1, 1994 Proposal publication date: October 19, 1993 For further information, please call: (512) 454-4674 Part IX. Texas State Board of Medical Examiners Chapter 166. Annual Registration 22 TAC sec.sec.166.1-166.3 The Texas State Board of Medical Examiners adopts the repeal of sec.sec.166. 1-166.3, without changes to the proposed text as published in the October 19, 1993, issue of the Texas Register (18 TexReg 7273). Extensive rewrite was required with simultaneous adoption of new sections. The repeals will function by clarification. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations, and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. The repeals implement Texas Civil Statutes, Article 4495b, sec.3.01. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333056 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Effective date: December 24, 1993 Proposal publication date: October 19, 1993 For further information, please call: (512) 834-7728, Ext. 402 22 TAC sec.sec.166.1-166.5 The Texas State Board of Medical Examiners adopts new sec.166.2, with changes to the proposed text as published in the October 19, 1993, issue of the Texas Register (18 TexReg 7274). Sections 166.1 and 166.3-166.5 were adopted without changes and will not be republished. The new sections were mandated by Senate Bill 1062, 73rd Legislature. The sections will function by clearly defining registration requirements for physicians. Comments were received from an individual physician, as well as the Texas Osteopathic Medical Association. The individual physician suggested setting up the Continuing Medical Education Program similar to that of the American Medical Association. The board disagreed with this comment because it would be contradictory to Senate Bill 1062. The board accepted a suggestion made by Texas Osteopathic Association to change the wording of sec.166.2(a)(1)(C) to more clearly define the type of CME credit approved by the American Osteopathic Association. The new sections are adopted under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations, and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. The adopted sections implement Texas Civil Statutes, Article 4495b, sec.3.01 and sec.3.025. sec.166.2. Continuing Medical Education. (a) As a prerequisite to the annual registration of a physician's license, 24 hours of continuing medical education (CME) are required to be completed in the following categories: (1) At least one-half of the hours are to be from formal courses that are: (A) designated for AMA/PRA Category 1 credit by a CME sponsor accredited by the Accreditation Council for Continuing Medical Education or the Texas Medical Association; (B) approved for prescribed credit by the American Academy of Family Physicians; (C) designated for AOA Category 1 credit required for osteopathic physicians by an accredited CME sponsor approved by the American Osteopathic Association; (D) approved by the Texas Medical Association based on standards established by the AMA for its Physician's Recognition Award; or (E) approved by the Council on Medical Specialty Societies. (2) The remaining hours may be composed of informal self-study, attendance at hospital lectures, grand rounds, or case conferences and shall be recorded in a manner that can be easily transmitted to the board upon request. (b) A physician must report on the annual registration form the number of hours and type of continuing medical education completed during the previous year. (c) A licensee shall be presumed to have complied with this section if in the preceding 36 months the licensee becomes board-certified or recertified in a medical specialty and the medical specialty program meets the standards of the American Board of Medical Specialties, the American Medical Association, the Advisory Board for Osteopathic Specialists and Boards of Certification, or the American Osteopathic Association. (d) A physician may request in writing an exemption for the following reasons: (1) catastrophic illness; (2) military service of longer than one year's duration outside the state; (3) medical practice and residence of longer than one year's duration outside the United States; or (4) good cause shown on written application of the licensee that gives satisfactory evidence to the board that the licensee is unable to comply with the requirement for continuing medical education. (e) Exemptions are subject to the approval of the executive director/medical director. (f) A temporary exemption under subsection (d) of this section may not exceed one year but may be renewed annually, subject to the approval of the board. (g) Subsection (a) of this section does not apply to a licensee who is retired and has been exempted from paying the annual registration fee under sec.166.3 of this title (relating to Retired Physician Exception). (h) This section does not prevent the board from taking disciplinary action with respect to a licensee or an applicant for a license by requiring additional hours of continuing medical education or of specific course subjects. (i) The board may require written verification of both formal and informal credits from any licensee within 30 days of request. Failure to provide such verification may result in disciplinary action by the board. (j) Physicians in residency/fellowship training will satisfy the requirements of subsection (a)(1) and (2) of this section by their residency or fellowship program. (k) Compliance with subsection (a) of this section will be required by January 1, 1995; all other provisions are effective upon final adoption of these rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333057 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Effective date: December 24, 1993 Proposal publication date: October 19, 1993 For further information, please call: (512) 834-7728, Ext. 402 Chapter 167. Reinstatement of Medical License 22 TAC sec.sec.167.1-167.3 The Texas State Board of Medical Examiners adopts the repeal of sec.sec.167. 1-167.3, without changes to the proposed text as published in the October 22, 1993, issue of the Texas Register (18 TexReg 7404). Existing sec.167.1, concerning reinstatement of a medical license following cancellation for nonpayment of annual registration, is being repealed and rewritten to comply with Senate Bill 1062, 73rd Legislature. It has been moved to Chapter 166 of this title (relating to Physician Registration). The repeals will function by omission. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations, and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. The repeals implement Texas Civil Statutes, Article 4495b, sec.3.01. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333054 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Effective date: December 24, 1993 Proposal publication date: October 22, 1993 For further information, please call: (512) 834-7728, Ext. 402 22 TAC sec.167.1, sec.167.2 The Texas State Board of Medical Examiners adopts new sec.167.1 and sec.167. 2, without changes to the proposed text as published in the October 22, 1993, issue of the Texas Register (18 TexReg 7405). The new sections comply with Senate Bill 1062, 73rd Legislature. The sections will function by clarification of rules regarding reinstatement of medical license following cancellation. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations, and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. The new sections implement Texas Civil Statutes, Article 4495b, sec.4.10. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333055 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Effective date: December 24, 1993 Proposal publication date: October 22, 1993 For further information, please call: (512) 834-7728, Ext. 402 Chapter 171. Institutional Permits 22 TAC sec.171.1 The Texas State Board of Medical Examiners adopts an amendment to sec.171. 1, without changes to the proposed text as published in the October 19, 1993, issue of the Texas Register (18 TexReg 7275). The amendment allows the board to process institutional permit applications more expeditiously. The section will function by increasing the period of time for which an initial institutional permit will be issued. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations, and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. The amendment implements Texas Civil Statutes, Article 4495b, sec.3.01. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333053 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Effective date: December 24, 1993 Proposal publication date: October 19, 1993 For further information, please call: (512) 834-7728, Ext. 402 22 TAC sec.171.9 The Texas State Board of Medical Examiners adopts an amendment to sec.171. 9 without changes to the proposed text as published in the October 19, 1993, issue of the Texas Register (18 TexReg 275). The amendment more clearly defines the type of license or permit issued to a physician holding a faculty position of assistant professor level or higher. The section will function by changing the name of the teaching fellow permit to faculty temporary license. One comment was received from Texas Tech University Health Sciences Center School of Medicine requesting consideration for adding the title of Instructor to the permit. This had previously been discussed by the board and it was felt this permit should be issued to Assistant Professor level or higher. The amendment is adopted under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations, and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. The adopted amendments implement Texas Civil Statutes, Article 4495b, sec.3. 01. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333051 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Effective date: December 24, 1993 Proposal publication date: October 19, 1993 For further information, please call: (512) 834-7728, Ext. 402 Chapter 175. Schedule of Fees and Penalties 22 TAC sec.175.1, sec.175.2 The Texas State Board of Medical Examiners adopts an amendment to sec.175. 1 and sec.175.2, without changes to the proposed text as published in the October 19, 1993, issue of the Texas Register (18 TexReg 7276). Senate Bill 1062, 73rd Legislature, mandated increased penalty fees for delinquent registration. Several fees have also been increased to help recover costs for implementing programs. The section will function through collection of fees. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations, and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. The amendment implements Texas Civil Statutes, Article 4495b, sec.3.01 and sec.3.10. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333052 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Effective date: December 24, 1993 Proposal publication date: October 19, 1993 For further information, please call: (512) 834-7728, Ext. 402 Chapter 179. Investigation Files 22 TAC sec.179.5 The Texas State Board of Medical Examiners adopts an amendment to sec.179. 5, without changes to the proposed text as published in the October 19, 1993, issue of the Texas Register (18 TexReg 7277). The amendment will avoid unnecessary confusion and is consistent with Texas Civil Statutes, Article 6252-13c and board rule 168. The section will function by properly addressing criminal conviction. There was one comment received from the Texas Medical Association which addressed a different section of Chapter 179 and had no relevance to the proposed amendment. The amendment is adopted under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations, and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. The adopted amendment implements Texas Civil Statutes, Article 6252-13c. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333050 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Effective date: December 24, 1993 Proposal publication date: October 19, 1993 For further information, please call: (512) 834-7728, Ext. 402 Chapter 187. Procedure Subchapter B. Prehearing 22 TAC sec.sec.187.17, 187.19, 187.24 The Texas State Board of Medical Examiners adopts amendments to sec.sec.187. 17, 187.19, and 187.24, without changes to the proposed text as published in the October 19, 1993, issue of the Texas Register (18 TexReg 277). The amendments are mandated by Senate Bill 1062, 73rd Legislature, in sec.4. 03(d) of the Medical Practice Act. The sections will function by further defining Informal Settlement Conference procedures and Show Compliance Conference procedures, and will streamline administrative processes. Comments on sec.187.18 and sec.187.24 were received from the Texas Medical Association. The board disagreed with the comments related to sec.187.18 for the following reasons. Section 179.2 of this title (relating to Request for Information and Records from Physicians) provides for a two-week response time in regard to board requests to licensees for medical records. The suggested language is therefore an unnecessary restriction on the board's statutory subpoena powers. The board disagreed with the comments related to sec.187.24 for the following reasons. The suggested language goes beyond the requirements of statute. The proposed requirement that documents provided to board representatives be provided to the licensee or the licensee's attorney is not mandated by statute, and could compromise investigative files which are confidential by statute at this procedural stage. The suggested language is too narrow in that it fails to address professional failures involving single events, and is therefore not in the best interest of the public. The statutory language is necessarily broad to allow for evolution in the standard of care and to address single incidents of incompetence by a physician reflecting lack of ability, lack of judgment, or lack of fitness to practice. The amendments are adopted under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations, and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. The amendments implement Texas Civil Statutes, Article 4495b, sec.4.03(d) and sec.4.025. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333049 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Effective date: December 24, 1993 Proposal publication date: October 19, 1993 For further information, please call: (512) 834-7728, Ext. 402 Chapter 193. Standing Delegating Orders 22 TAC sec.193.7 The Texas State Board of Medical Examiners adopts amendments to sec.193.7, without changes to the proposed text as published in the October 19, 1993 issue of the Texas Register (18 TexReg 283). The amendment eliminates confusion caused by a subsection which is no longer applicable. The section will function by omission of unnecessary information. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations, and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. The adopted amendment implements Texas Civil Statutes, Article 4512m. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333048 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Effective date: December 24, 1993 Proposal publication date: October 19, 1993 For further information, please call: (512) 834-7728, Ext. 402 Part XVI. Texas State Board of Physical Therapy Examiners Chapter 347. Registration of Physical Facilities 22 TAC sec.sec.347.1, 347.2, 347.4-347.6, 347.9, 347.11, 347.12, 347.15 The Texas State Board of Physical Therapy Examiners adopts new sec.sec.347.1, 347.2, 347.4-347.6, 347.9, 347.11, 347.12, and 347.15. Sections 347.2, 347.4, 347.5, 347.12 are adopted with changes to the proposed test as published in the August 27, 1993, issue of the Texas Register (18 TexReg 5718). Sections 347.1, 347.6, 347.9, 347.11, and 347.15 are adopted without changes and will not be republished. The new sections set requirements for applications for registration of physical therapy facilities and annual renewal of registered facilities; set requirements for facilities which are registered; provide penalties for failure to register and provide for disciplinary action. The rules will require all facilities which are not exempt to register with the board and to annually renew their certification. The board held two public hearings to receive comments on proposed rules Chapter 347 on September 7, 1993, and on October 14, 1993. The board received comments from two persons asking that their facilities be exempted from the requirement for registration. The board responds that it does not have authority under the Act to make such exemptions. The board received comments from 105 persons in favor of the proposed rules. The board received comments in opposition to proposed rules Chapter 347, 22 TAC, from the Texas Osteopathic Medical Association, the Texas Orthopedic Association, the Texas Medical Association, the Texas Neurological Association, and one individual. They maintain that the rules violate Texas Civil Statutes, Article 4512e, sec.6(a) because they would restrict a licensee of another state agency from performing health care services that are within the scope of the applicable licensing Act. Also, they maintain that the rules violate the Medical Practice Act, Article 4495b because they attempt to regulate the licensees of the Medical Board. The board disagrees with these comments. The proposed rules adhere to Section sec.27 of Article 4512e, which requires the board to register facilities in which the practice of physical therapy is conducted. The section further provides that a facility licensed under the Health and Safety Code, Subtitle B, Title 4, is exempt from the requirements for registration in this section. Physicians' offices are not included in the Health and Safety Code reference. Section 1 of Article 4512e defines physical therapy facility as a physical site, such as a building, office, or portable facility, where the practice of physical therapy takes place. A physical therapy facility must be under the direction of a physical therapist licensed by the board and meet any additional requirements as may be established by the board. Therefore, any facility which meets this criteria must be registered by the board. The proposed rules do not limit the licensee of another state agency from performing health care services within the scope of the applicable licensing Act. The rules simply adhere to the Act by requiring that when "physical therapy" as defined by the Act is provided or practiced by a licensee of this board, it must be done in a registered physical therapy facility (or those exempted in accordance with the Act). Therefore, a licensee of the Medical Practice Act, Article 4495b, if he or she hires a physical therapist to provide physical therapy at his/her office or in any location, must register this facility with the board. The rules, however, in no way prohibit a licensee of another health profession licensing Act, such as the Medical Practice Act, from delegating authority to anyone, even a licensed physical therapist, to perform delegated medical acts, such as rehabilitative medicine. The commenters further claim that the rules attempt to regulate the licensees of another board. The board disagrees with this comment because the rules simply comply with the directive of the Physical Therapy Practice Act regarding registration of physical therapy facilities as defined by the Act. Article 4512e, sec.27, states that the rules adopted in regard to registration of facilities should not prohibit a licensed individual from practicing in a facility within the scope of such individual's licensure. The proposed rules in no way limit a physician, in a physician's office, from delegating to a physical therapist, or anyone else, delegatable medical practice. However, if a physician or if the individual to whom care is delegated at a facility claims to be a physical therapist or represents himself to be a physical therapist or claims to offer or offers physical therapy, then that facility, such as a physician's office, must be registered. The commenters claim that the proposed rules are unconstitutional as they violate Section 31 of Article XVI of the Constitution of Texas because they would regulate physician services and professional businesses and thereby give a preference to one segment of the healing arts over another in contradiction of Constitutional mandates. The board disagrees with this comment. The proposed rules only adhere to the directive to the board in Article 4512e to establish a registration of facilities program and to provide exemptions per the Health and Safety Code, Subtitle B, Title 4. They give no preference to any requirement of the healing arts over another. On the contrary, the rules require all facilities to be registered that provide physical therapy. The commenters further claim that in sec.347.1, Definitions, the definition of a physical therapy facility does not reflect the exemption that is contained in the a Physical Therapy Act for other licensed health care professionals. The board disagrees with this comment. While it is true that a restriction is made in the Physical Therapy Practice Act, sec.6 to allow persons who are licensed by other Acts to practice within the scope of their practice Acts, there is also the statement in the Act, sec.1 that the practice of physical therapy means ... "publicly professing to be or holding oneself out to be a physical therapist or as providing physical therapy." Therefore anyone, regardless of their licensure by another entity, cannot claim to provide physical therapy unless they are a licensee of this board. The commenters state that sec.347.2, Requirement for Practice Setting of Licensees, is an attempt to pass a rule to prohibit licensed physical therapists from practicing in physician's offices and that this is a direct attempt to regulate physician offices and medical practice as it concerns physical therapy and that this is a violation of the anti-trust laws. The board responds that anyone who claims to provide physical therapy other than a licensee of this board is violating the Physical Therapy Practice Act, sec.1. The board in no way wishes to prohibit licensees of this board from practicing physical therapy in physician's offices. However, the Physical Therapy Practice Act requires that when this does occur the facility must be registered with the board. Therefore, this is in no way a violation of the anti-trust laws. The registration of facilities was not formerly required by the Act; this amendment was made by the 73rd Legislature and no grandfather provision was included in the new legislation. Therefore, what was required or not required of physical therapists before this change in state law by the Legislature cannot be used as an argument to exempt physician's offices when licensees of this board provide physical therapy in them. The commenters state that the rule reflects no underlying public health or necessity for prohibiting licensed physical therapists from working as physical therapists in professional settings for licensed health care professionals who are exempt from the Physical Therapy Act. The board responds that the wisdom of the Legislature in amending the Act to require registration of physical therapy facilities is at issue. It is thought by this board that the Legislature wished to promote and protect the public health in requiring this registration. The board has received a written statement from Senator Steve Carriker that supports the board's position. The board adheres to such a philosophy since registration will allow the state to know where physical therapy is practiced and to monitor that practice in conformity with the Act and rules. Additionally, the rules in no way prohibit physical therapists from working as physical therapists in a professional setting for a licensed health care professional; however, now the setting, i.e. facility, must be registered as a physical therapy facility if that facility or person rendering the care in the facility claims to offer or offers physical therapy or represents himself as a physical therapist. These commenters indicated that in sec.347.6, Exemptions to Registration, the exceptions are too restrictive and fail to take into account the exemption in the Act for health care providers who are practicing within the scope of their own licensure Act. The board responds that the exemptions proposed by rule are those indicated in the Act. The board excluded home health because it does not fit the definition for a physical therapy facility, nor does the educational setting or colleges or universities. The commenters maintain that sec.347.11, Failure to Register, is an attempt to regulate the offices of physicians and other health care providers that are specifically exempt from the Act. The commenters state that the proposed rules are in violation of the Act since it is permissable in other practice Acts of health care professionals to utilize physical therapists in their practice settings. The commenters state there is no statutory basis for these rules and that they are a violation of the antitrust laws and are a restraint of trade. The board responds that it is given authority by the Act to discipline licensees of the board who fail to adhere to the Act and rules. It is consistent with the Act that physical therapists who hold themselves out as physical therapists or who offer to perform or perform physical therapy must practice in a facility that is registered by the board or exempted by registration. It is inconsistent to have a registration of facilities program and to continue to allow physical therapists to practice physical therapy in facilities which are not registered or exempt. The board further responds that no one is exempt from the Act, sec.1 which states that "the practice of physical therapy means...publicly professing to be or holding oneself out to be a physical therapist or as providing physical therapy," and that a "physical therapy facility is a physical site, such as a building, office, or portable facility where the practice of physical therapy takes place." "A physical therapy facility must be under the direction of a physical therapist licensed by the board and meet any additional requirements as may be established by the board." The board is not attempting to limit the utilization of physical therapists by other health care professions. It simply is adhering to the directive of the act which states that physical therapy facilities, as defined by the act, must be registered by the board. The commenters further maintain that the physician who delegates to licensed and to unlicensed individuals has the legal authority for the care provided under his control. Also, the commenter states that the Legislature did not intend for the Physical Therapy Practice Act to intrude upon the Medical Practice Act. The board agrees with these comments. Acts appropriately delegated under another health professions practice Act are the responsibility of that health care professional practicing under the scope of his practice Act. However, once a physical therapist has received a referral from the physician, or any other health care provider authorized to refer, for the provision of physical therapy treatment, the legal authority for the care of that patient, i.e. the liability, falls primarily to the physical therapist, not to the other health care professional. The Physical Therapy Board has statutory authority regarding complaints covering physical therapists. The board further responds that the requirement to register physical therapy facilities and the definition of a physical therapy facility in the Act is very simple and direct. The board believes that the intent of the act was not to intrude in any way upon other health professions and that it indeed does not. One commenter claimed that the new rule would result in a flight of physical therapists from hospitals to private settings. The commenter explained that private practice settings may offer higher salaries to lure physical therapists. The board does not agree with this. The board has no control over the private business practices, such as salary scales, of any entity. The proposed rule is neutral on its face and in its application regarding this issue. More recent comments submitted by the Texas Medical Association and the Texas Physical Therapy Association generally support the rule, but suggest the following language be added to the proposed rule. "A facility may register, but shall not be required to register, under this section if such facility does not perform or hold itself out as performing or offering to perform physical therapy, as defined in the Act, sec.1, although services may be performed at that facility under the direction and supervision of a licensed health care professional acting within the scope of that person's license and as permitted by the applicable licensing act and rules promulgated thereunder, for example the Texas Medical Practice Act, sec.3.06(d) (1), Texas Civil Statutes, Article 4495b. Further, in conformance with the Act, sec.6, these rules shall not apply to a facility in which persons licensed under another health care services Act practice under the authority of that Act and within the scope of their license and such facility and the persons performing services in that facility are in conformance with the Act, sec.7." The board basically agrees with the proposed change in that it clarifies the board's position. The board only has the authority to regulate the practice of physical therapy and the accompanying authority to regulate facilities which offer to perform or perform physical therapy. Therefore, the board adopts the proposed language: "A facility shall not be required to register, under this section if such facility or any person providing health care services at the facility does not perform or hold itself or themselves out as performing or offering to perform physical therapy, as defined in the Act, sec.1." Two commenters said the $300 fee for registration was too high. The board disagrees. Three hundred dollars, in light of the amounts of other license fees, is within a reasonable range and is necessary to accomplish the statutory mandate of assessing fees to recover the costs of the registration of facilities program. The new sections are adopted under Texas Civil Statutes, Article 4512e, sec.3(e), which provide the Texas State Board of Physical Therapy Examiners with the authority to adopt rules consistent with the Texas Physical Therapy Practice Act to carry out its duties in administering the Act. sec.347.2. Requirement for Practice Setting of Licensees. All licensees of this Act who practice in Texas, can practice only in registered facilities or in practices or facilities that are exempted by the Act and rules. A facility shall not be required to register under this section if such facility or any person providing health care services at the facility does not perform or hold itself or themselves out as performing or offering to perform physical therapy as defined in the Act, sec.1. sec.347.4. Requirements for Registration Application. (a) Registration applications must include the following information: (1) name of the facility; (2) street address of the facility; (3) mailing address, if different from the street address; (4) if a corporation: (A) the name, address, and social security number of any person who directly or indirectly owns or controls 5.0% or more of the outstanding shares of stock in the facility in a privately held corporation and 25% or more in a publicly held corporation in the facility and the percentage of ownership; (B) the name and address of each director; and (5) the name, address, telephone number, and social security number of the sole proprietor or partners; (6) if any other type of organization, the type of organization the name, address, and telephone number of each owner; (7) the total square feet of the facility. (8) the name and license number of the physical therapist-in-charge and his notarized signature; (9) names and license numbers of other licensees of this Act who practice in the facility. (b) The signature of the person who submits the registration application must be notarized. (c) The board will not consider an application as officially submitted until the applicant pays the registration fee. The fee should accompany the application form. (d) The board shall consider whether the proposed facility complies with the Act and this chapter of the rules. (e) Reasons for the board to deny registration: (1) non-payment of registration fee; (2) failure to submit all required information on the application form; (3) falsification of information on the application form. (4) violation of the Act or rules. (f) If the board does not register the entity which applies to be a registered facility, the application fee will not be returned. (g) If one or more facilities are owned by an individual, partnership, corporation, or other entity,the board requires one primary application and addendum pages for each additional site registered. sec.347.5. Requirements for Registered Facilities. (a) A physical therapy facility must be registered by the board. The registration application must be obtained from the board office. (b) All physical therapy facilities must register with the board and pay a registration fee no later than July 31, 1994, or within 60 days of the first patient treatment whichever is later. A renewal fee will be required in the original month of registration, in the year following the original registration year. (c) A registered facility must display the registration certificate in a prominent location in the facility where it is available for inspection by the public. A registration certificate issued by the board is the property of the board and must be surrendered on demand by the board. (d) A registered facility is subject to random inspection to verify compliance with the Act and this chapter by authorized personnel of the board at any reasonable time. (e) A registered facility must renew registration annually by completing a renewal application and submitting the required fee. (f) A registered facility must have a licensed person to supervise the provision of physical therapy in accordance with the Act and rules. (g) A registered facility is required to adhere to the Physical Therapy Practice Act and rules of the board. (h) A registered facility is required to report any change in the physical therapist-in-charge of the facility to the board no later than ten days after it occurs. (i) A registration issued under this chapter shall not be transferred or sold to another person or owner. (j) Change in ownership requirements. (1) The new owner of a physical therapy facility must apply for registration as a new applicant within 60 days. (2) The former owner of a facility must return the registration certificate to the board within ten days of the sale of the facility. (k) A registered facility may advertise as a "Physical Therapy Facility Registered by the Texas State Board of Physical Therapy Examiners." Facilities which are not registered by the board may not refer to themselves as registered facilities. sec.347.12. Restoration of Registration. When a facility fails to renew their registration within the renewal month, the facility is subject to fees as follows. (1) If the facility registration has been expired for 90 days or less, the facility may renew by paying the required renewal fee and a restoration fee that is one-half of the renewal fee. (2) If the facility registration has been expired for more than 90 days but less than one year, the facility may renew by paying all unpaid renewal fees and a restoration fee that is equal to the renewal fee. (3) If the facility registration has been expired for more than one year, the facility may renew the registration by paying all unpaid renewal fees and a restoration fee which is double the renewal fee. 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 November 18, 1993. TRD-9333004 Sherry L. Lee Executive Director Texas State Board of Physical Therapy Examiners Effective date: December 24, 1994 Proposal publication date: August 27, 1993 For further information, please call: (512) 443-8202 TITLE 28. INSURANCE Part II. Texas Workers' Compensation Commission Chapter 110. Required Notices of Coverage Subchapter B. Employer Notices 28 TAC sec.110.101 The Texas Workers' Compensation Commission adopts new sec.110.101, with changes to the proposed text as published in the June 22, 1993, issue of the Texas Register (18 TexReg 4130). Changes were made to the title and other portions of the rule to clarify that the rule applies to both covered and non- covered employers. Many structural changes were made so the provisions which address requirements which apply to all employers come before provisions that apply to only one or another type of employer. Changes made to the sections of the rule describing posted notice requirements include consolidating the notices so that only one posting will be required, including specific references to occupational illnesses, identifying the time within which actions must occur, and describing the requirement to show good-cause for failing to provide timely notice. Incorporating the time-frame for reporting the injury and reference to the requirement to show good cause for failing to timely report meets the agency policy of educating the participants regarding their rights under the system because employee failure to notify their employer in a timely manner may result in the loss of rights. The text of the rule was changed to set out specific times within which the employer has to post or provide the notices required by this rule and to clarify that the notice requirements upon dropping or canceling coverage only apply when there will be a gap in coverage. This rule is required by the Texas Labor Code, sec.406.005, which authorizes the commission to adopt rules governing the form and content of the notices the employer is required to post, sec.409.041, which requires the employer to notify its employees of the ombudsman program in the form and manner prescribed by the commission, and sec.411.081, which requires the employer to notify its employees of the safety hotline in the form and manner prescribed by the commission. The rule incorporates the ombudsman notice as part of the "employee assistance" described in the notice. Employee assistance broadens the agency implementation of the ombudsman program required by law and combines the required program with customer service principles for a program that will better serve participants in the system. Under the Act, employers have an obligation to notify their employees of whether the employer is covered by workers' compensation insurance. This involves both posting notices and providing direct notice to each employee. Additionally, employers are obliged to notify employees about assistance available from the commission, and about the commission's toll-free telephone line for reporting unsafe working conditions. This rule consolidates all the commission regulatory powers related to employer notices which are currently described in several other rules. It also adds specific form and content information for certified self-insured employers to appropriately notify employees of the covered status of the employer. Comments opposing portions of the rule and supporting changes to those portions were received from TU Electric. Summaries of the comments and commission responses are as follows: The rule should be written in active voice and the notices should be combined to eliminate repetitive words and phrases. The commission agrees with the recommendation, though not all the specific words and phrases proposed by the commenter. Changes proposed to the text of the notices, for the most part, adopt the commenter's proposed text. Notices should be printed in smaller type and not bold type. This would produce a more readable notice and allow more information to be included on the same notice. The commission agrees with the recommendation to vary the type size and weight in order to attract the attention of employees while providing all the necessary information in a compact format. Proposed subsection (b)(5) is incorrect in stating that the employee has five days from beginning employment to make their election since they have five days from receipt of the employer's notification of obtaining coverage. The commission disagrees with the statement that subsection (b)(5) incorrectly limits the employee to five days from the beginning of employment. The law actually does require the election within five days of beginning employment. However, the rule does not address the election opportunity for the employee when the previously not covered employer obtains coverage. Adding the phrase "or within five days after receiving written notice from the employer that the employer has obtained coverage..." after the word "employment", will address the concern that the rule does not deal with the election when the employer becomes covered after the employee starts work. Proposed subsection (b) is not clear in requiring the employer to provide written notice to all effected employees when the employer cancels or obtains coverage. The commission agrees and amends the text to require written notice when the employer cancels or obtains coverage. The commission also extends the clarification of the rule to specify when the employee is "hired". This rule should require the employer to tell employees that they have coverage from a carrier but that claims will be handled by a third-party administrator. The commission disagrees. The employer is not necessarily in a position to know whether the carrier has employed a third-party administrator to handle claims, or to know which of multiple third-party administrators employed by an insurance company will handle the claims arising in that employer's business. To require the employer to provide that information in the notice would be an unreasonable burden. Section 110.101 is adopted under the Texas Labor Code sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act; sec.406.005, which authorizes the commission to adopt rules governing the form and content of the notices the employer is required to post; sec.409.041, which requires the employer to notify its employees of the ombudsman program in the form and manner prescribed by the commission; and sec.411.081, which requires the employer to notify its employees of the safety hotline in the form and manner prescribed by the commission. sec.110.101. Covered and Non-Covered Employer Notices to Employees. (a) In addition to the posted notice required by subsection (e) of this section, covered and non-covered employers must notify their employees of coverage status, in writing. This additional notice: (1) shall be provided at the time an employee is hired, meaning when the employee is required by federal law to complete both a W-4 form and an I-9 form or when a break in service has occurred and the employee is required by federal law to complete a W-4 form on the first day the employee reports back to duty; (2) shall be provided at the time the employer notifies the insurance carrier that the employer is dropping coverage if there will be a period during which the employees will not be covered; (3) shall be provided at the time an employer obtains coverage, as necessary to allow the employee to elect to retain common law rights; (4) must include the text required in the posted notice; and (5) if the employer is covered by workers' compensation insurance, or becomes covered, whether by commercial insurance or by becoming a certified self- insurer, must include the following statement: "You may elect to retain your common law right of action if, no later than five days after you begin employment or within five days after receiving written notice from the employer that the employer has obtained coverage, you notify your employer in writing that you wish to retain your common law right to recover damages for personal injury. If you elect to retain your common law right of action, you cannot obtain workers' compensation income or medical benefits if you are injured." (b) Notices required to be posted by this rule shall be posted: (1) by the non-subscribing employer as provided in subsection (c) of this section; (2) by the employer who is opting out of workers' compensation, at the time the employer notifies the carrier of the cancellation; (3) by the employer or certified self-insurer who elects to cancel their policy or withdraw from self-insurance, at the time the insurance carrier is notified of the cancellation or the commission is notified of the withdrawal, unless a new policy will maintain continuous coverage in which case the employees will be notified at the time the new policy takes effect; (4) by the employer who becomes covered either by an insurance policy or by certified self-insurance, at the time coverage or certification takes effect; and (5) by the employer whose workers' compensation policy is cancelled by the insurance carrier, at the time the cancellation becomes effective if no new policy is obtained. (c) Notices posted or provided on and after the effective date of this rule shall contain the specific text required by this rule. Notices posted prior to the effective date of this rule, in compliance with prior commission rules will not need to be replaced with the text required by this rule. However, any time the information regarding coverage status, insurance carrier, safety hotline number, or third-party administrator changes, or upon notification by the commission, the notice shall be replaced with the text required by this rule. (d) An employer who recruits an employee in Texas to perform services outside of Texas, actually hires outside of Texas, and has notices of coverage posted conspicuously at the place of hire and at the business location where the employee will perform services, is not required to provide the additional notice required in subsection (a) of this section to the employee. (e) Covered and non-covered employers must post notices in the workplace to inform employees about workers' compensation issues as required by this rule. These notices must be posted in the personnel office, if the employer has a personnel office, and in the workplace where each employee is likely to see the notice on a regular basis. The notices shall be printed with a title in at least 30-point bold type, subject in at least 20-point bold type, and text in at least 19-point normal type, and shall include English, Spanish, and any other language common to the employer's employee population. The text for the notices shall be the text provided by the commission on the sample notice without any additional words or changes. (1) Employers insured through a commercial insurance company must post the following notice: "NOTICE TO EMPLOYEES CONCERNING WORKERS' COMPENSATION IN TEXAS COVERAGE: (Name of employer) has workers' compensation insurance coverage from (name of commercial insurance company) to protect you in the event of work-related injury or illness. This coverage is effective from (effective date of policy). Any injuries or illnesses which occur on or after that date will be handled by (name of commercial insurance company). An employee or a person acting on the employee's behalf must notify the employer of an injury or illness not later than the 30th day after the date on which the injury occurs or the date the employee knew or should have known of an illness, unless the commission determines that good cause existed for failure to provide timely notice. Your employer is required to provide you with coverage information when you are hired or whenever the employer becomes, or ceases to be, covered by workers' compensation insurance. EMPLOYEE ASSISTANCE: The Commission provides free information about how to file a workers' compensation claim. Commission staff will explain your rights and responsibilities under the Workers' Compensation Act and assist in resolving disputes about a claim. You can obtain this assistance by contacting your local Commission field office or by calling 1-800-252-7031. SAFETY HOTLINE: The Commission has established a 24-hour toll-free telephone number for reporting unsafe conditions in the workplace that may violate occupational health and safety laws. Employers are prohibited by law from suspending, terminating, or discriminating against any employee because he or she in good faith reports an alleged occupational health or safety violation. Contact the Division of Workers' Health and Safety at 1-800-452-9595." (2) Employers who become certified self-insurers must post the following notice: "NOTICE TO EMPLOYEES CONCERNING WORKERS' COMPENSATION IN TEXAS COVERAGE: Effective on (effective date of certificate) (name of employer) has been certified by the Texas Workers' Compensation Commission as a self-insured employer providing workers' compensation insurance to protect you in the event of work-related injury or illness. Claims for injuries or illnesses which occur on or after that date will be handled by (name of third-party administrator). An employee or a person acting on the employee's behalf must notify the employer of an injury or illness not later than the 30th day after the date on which the injury occurs or the date the employee knew or should have known of an illness, unless the commission determines that good cause existed for failure to provide timely notice. Your employer is required to provide you with coverage information when you are hired or whenever the employer becomes, or ceases to be, covered by workers' compensation insurance. EMPLOYEE ASSISTANCE: The Commission provides free information about how to file a workers' compensation claim. Commission staff will explain your rights and responsibilities under the Workers' Compensation Act and assist in resolving disputes about a claim. You can obtain this assistance by contacting your local Commission field office or by calling 1-800-252-7031. SAFETY HOTLINE: The Commission has established a 24-hour toll-free telephone number for reporting unsafe conditions in the workplace that may violate occupational health and safety laws. Employers are prohibited by law from suspending, terminating, or discriminating against any employee because he or she in good faith reports an alleged occupational health or safety violation. Contact the Division of Workers' Health and Safety at 1-800-452-9595." (3) Employers who elect not to be covered by workers' compensation, or who cancel or terminate coverage must post the following notice: "NOTICE TO EMPLOYEES CONCERNING WORKERS' COMPENSATION IN TEXAS COVERAGE: (Name of employer) DOES NOT have workers' compensation insurance coverage to protect you from damages resulting from work-related illness or injury. However, you may have rights under the common law of Texas. Your employer is required to provide you with coverage information when you are hired or whenever the employer becomes, or ceases to be, covered by workers' compensation insurance. SAFETY HOTLINE: The Commission has established a 24-hour toll-free telephone number for reporting unsafe conditions in the workplace that may violate occupational health and safety laws. Employers are prohibited by law from suspending, terminating, or discriminating against any employee because he or she in good faith reports an alleged occupational health or safety violation. Contact the Division of Workers' Health and Safety at 1-800-452-9595." (f) Failure to post or to provide notice as required in this rule is a violation of the Act and commission rules and the violator may be subject to administrative penalties. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333008 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: January 1, 1994 Proposal publication date: June 22, 1993 For further information, please call: (512) 440-3592 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 C. Resident Rights 40 TAC sec.19.204 The Texas Department of Human Services (DHS) adopts an amendment to sec.19. 204, concerning protection of resident funds, in its Long-Term Care Nursing Facility Requirements rule chapter. The justification for the amendments is to comply with changes in federal requirements which specify items or services which may and may not be billed to a nursing facility resident's personal funds, and specify notification requirements when charging for items or services. The amendment will function by ensuring that the personal funds of nursing facility residents are protected from unauthorized or improper use. 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec.sec.22.002 and 32.001-32. 040. The amendment is adopted in compliance with federal requirements to be effective October 1, 1993. sec.19.204. Protection of Resident Funds. (a)-(j) (No change.) (k) Limitation on charges to personal funds. The facility may not impose a charge against the personal funds of a resident for any item or service for which payment is made under Medicaid or Medicare. Items or services included in Medicare or Medicaid payment which may not be billed to the resident's personal funds by the facility include: (1) nursing services as required in sec.19.801 of this title (relating to Nursing Services); (2) dietary services as required in sec.19.901 of this title (relating to Dietary Services); (3) an activities program as required in sec.19.502 of this title (relating to Activities); (4) room and bed maintenance services; (5) routine personal hygiene items and services as required to meet the needs of residents, including, but not limited to: (A) hair hygiene supplies; (B) comb; (C) brush; (D) bath soaps, disinfecting soaps, or specialized cleansing agents when indicated to treat special skin problems or to fight infection; (E) razor; (F) shaving cream; (G) toothbrush; (H) toothpaste; (I) denture adhesive; (J) denture cleaner; (K) dental floss; (L) moisturizing lotion; (M) tissues; (N) cotton balls; (O) cotton swabs; (P) deodorant; (Q) incontinent care and supplies; (R) sanitary napkins and related supplies; (S) towels; (T) washcloths; (U) hospital gowns; (V) over-the-counter drugs; (W) hair and nail hygiene services; (X) bathing; (Y) personal laundry; and (6) medically-related social services as required in sec.19.503 of this title (relating to Social Services General Requirements). (l) Items and services that may be charged to a resident's personal funds. The facility may charge the resident for requested services that are more expensive than or in excess of covered services in accordance with sec.19.1701 of this title (relating to Vendor Payment (Items and Services Included)). The following list contains general categories and examples of items and services that the facility may charge to a resident's personal funds if they are requested by a resident, if the facility informs the resident that there will be a charge, and if payment is not made by Medicare or Medicaid: (1) telephone; (2) television and/or radio for personal use; (3) personal comfort items, including smoking materials, notions and novelties, and confections; (4) cosmetics and grooming items and services in excess of those for which payment is made under Medicare or Medicaid; (5) personal clothing; (6) personal reading material; (7) gifts purchased on behalf of a resident; (8) flowers and plants; (9) social events and entertainment offered outside the scope of the activities program, provided under sec.19.502 of this title (relating to Activities); (10) noncovered special care services, such as privately hired nurses and aides; (11) private room, except when therapeutically required, such as isolation for infection control; and (12) specially-prepared or alternative food requested instead of the food generally prepared by the facility, as required in sec.19.901 of this title (relating to Dietary Service). (m) request for items or services that may be charged to a resident's personal funds. The facility must: (1) not charge a resident, nor his representative, for any item or service not requested by the resident; (2) not require a resident, nor his representative, to request any item or service as a condition of admission or continued stay; and (3) inform the resident or his representative, when he requests an item or service for which a charge will be made, that there will be a charge for the item or service and the amount of the charge. (n) Access to financial record. The individual financial record must be available on request to the resident, responsible party, or legal representative. (o) Quarterly statement. The individual financial record must be available, through quarterly statements and on request, to the resident or his legal representative. The statement must reflect any recipient funds which the facility has deposited in an account as well as any recipient funds held by the facility in a petty cash account. The statement must include at least the following: (1) balance at the beginning of the statement period; (2) total deposits and withdrawals; (3) interest earned, if any; (4) identification number and location of any account in which the recipient's personal funds have been deposited; and (5) ending balance. (p) Banking charges. (1) Charges for checks, deposit slips, and services for pooled checking accounts are the responsibility of the facility and may not be charged to the recipient, family, or responsible party. These costs, however, may be reported as allowable costs by the facility on its cost report. (2) Bank service charges and charges for checks and deposit slips may be deducted from the individual checking accounts if it is the recipient's written, individual choice to have this type of account to preserve his dignity and independence. (3) Bank fees on individual accounts established solely for the convenience of the facility are the responsibility of the facility and may not be charged to the recipient, family, or responsible party. However, the facility may report these costs as allowable costs on its cost report. (4) The facility may not charge the recipient, family, or responsible party for the administrative handling of either type of account. These costs may be reported as allowable costs by the facility on its cost report. (5) If the facility places any part of the resident's money in savings accounts, certificates of deposit, or any other plan whereby interest or other benefits are accrued, the facility must distribute the interest or benefit to participating residents on an equitable basis. If pooled accounts are used, interest must be prorated on the basis of actual earnings or end-of-quarter balances. (q) Access to funds. (1) Personal funds held in the facility. Upon a Medicaid recipient's request, or transfer or discharge, the facility must return to the recipient, the representative payee, responsible party, or the legal representative the full balance of the recipient's personal funds that the facility has received for holding, safeguarding, and accounting. Because funds held in the facility are usually small amounts, the facility is expected to meet this requirement during normal business hours at the time of request, transfer, or discharge, whichever occurs first. Response to requests received during hours other than normal business hours must be made immediately at the beginning of the next normal business hours. For purposes of this paragraph, normal business hours are 8:00 a.m. to 5:00 p.m. Monday through Friday, excluding national holidays. (2) Personal funds held outside the facility. Upon request or if a recipient is transferred or discharged, the facility must, within five business days, return to the recipient, representative payee, responsible party, or the legal representative the full balance of a recipient's personal funds that the facility has deposited in an account, including any interest accrued. (r) Handling of monthly benefits. If the Social Security Administration has determined that a Title II and Title XVI Supplementary Security Income (SSI) benefit to which the recipient is entitled should be paid through a representative payee, the provisions in 20 CFR 404.1601-404. 1610 for Old Age, Survivors, and Disability Insurance benefits and 20 CFR 419. 601-419.690 for SSI benefits apply. (s) Change of ownership. If the ownership of a facility changes, the old owner must transfer the bank balances or trust funds to the new owner with a list of the residents and their balances. The old owner must get a receipt from the new owner for the transfer of these funds. The old owner must keep this receipt for audit purposes. (t) Alternate forms of documentation. Without prior written approval of DHS, alternate forms of documentation, including affidavits, will not be accepted by the department to verify the resident's personal fund expenditures or as proof of compliance with any requirements specified in these requirements for resident's personal funds. (u) Effective November 5, 1990, a nursing facility may not impose charges for certain Medicaid-eligible individuals, for nursing facility services that exceed the per diem amount established by the Texas Department of Human Services for such services. "Certain Medicaid-eligible individuals" means an individual who is entitled to medical assistance for nursing facility services, but for whom such benefits are not being paid because, in determining the individuals' income to be applied monthly to the payment for the costs of nursing facility services, the amount of such income exceeds the payment amounts established by DHS. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 2, 1993. TRD-9332971 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: October 1, 1993 For further information, please call: (512) 450-3765 Subchapter F. Quality of Life 40 TAC sec.19.501 The Texas Department of Human Services (DHS) adopts amendments to sec.sec.19.501, 19.602, 19.701, 19.801, 19.1001, 19.1501, and 19.1922, concerning quality of life, comprehensive care plans, quality of care, nursing services, physician services, physical plant and environment, and resident care policies, in its Long Term Care Nursing Facility Requirements for Licensure and Medicaid Certification chapter, without changes to the proposed text as published in the June 4, 1993, issue of the Texas Register (18 TexReg 3555). The justification for the amendments is to add provisions to the rules that emphasize that children have unique medical and psychosocial needs and that the care delivered must address those needs. The amendments will function by improving the care of children in nursing facilities. No comments were received regarding adoption of the amendments. The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provide 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. The amendment implements the Human Resources Code, sec.sec.22. 001, 22.002, and 32.001-32.041. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333015 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1994 Proposal publication date: June 4, 1993 For further information, please call: (512) 450-3765 Subchapter G. Resident Assessment 40 TAC sec.19.602 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec.sec.22. 001, 22.002, and 32.001-32.041. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333014 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1994 Proposal publication date: June 4, 1993 For further information, please call: (512) 450-3765 Subchapter H. Quality of Care 40 TAC sec.19.701 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec. sec.22.001, 22.002, and 32.001-32.041. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333013 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1994 Proposal publication date: June 4, 1993 For further information, please call: (512) 450-3765 Subchapter I. Nursing Services 40 TAC sec.19.801 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec.sec.22. 001, 22.002, and 32.001-32.041. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333012 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1994 Proposal publication date: June 4, 1993 For further information, please call: (512) 450-3765 Subchapter K. Physician Services 40 TAC sec.19.1001 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec.sec.22. 001, 22.002, and 32.001-32.041. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333011 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1994 Proposal publication date: June 4, 1993 For further information, please call: (512) 450-3765 Subchapter P. Physical Plant and Environment 40 TAC sec.19.1501 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec.sec.22. 001, 22.002, and 32.001-32.041. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333010 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1994 Proposal publication date: June 4, 1993 For further information, please call: (512) 450-3765 Subchapter T. Administration 40 TAC sec.19.1922 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec. sec.22.001, 22.002, and 32.001-32.041. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1993. TRD-9333009 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1994 Proposal publication date: June 4, 1993 For further information, please call: (512) 450-3765 Department of Protective and Services Chapter 700. Child Protective Services The Texas Department of Protective and Regulatory Services (TDPRS) adopts the repeal of sec.sec.700.701-700.703 and adopts new sec.sec.700.701-700.705, concerning services to families, in its child protective services chapter. The repeals and new sections are adopted without changes to the proposed text as published in the October 22, 1993, issue of the Texas Register (18 TexReg 7408). The justification for the repeals and new sections is to strengthen and improve TDPRS's services to families whose children have not been removed from the home and to families with children who are returning home from court-ordered substitute care. A secondary purpose of the repeals and new sections is to integrate those services with TDPRS's new risk-based service system. The repeals and new sections will function by defining and distinguishing three types of in-home services to families: family preservation services, intensive family- preservation services, and reunification support services. The sections also establish criteria for beginning and ending each type of service, and they set forth risk-based service-planning requirements for family preservation services. No comments were received regarding adoption of the repeals and new sections. Subchapter G. Family Preservation Services 40 TAC sec.sec.700.701-700.703 repeals are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs; and Chapter 41, which authorizes the department to enforce laws for the protection of children. The repeals are also adopted under the Texas Family Code, Title 2, Chapter 34, which authorizes the department to provide services to alleviate the effects of child abuse and neglect; 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 the Texas Department of Human Services to TDPRS. The repeals implement Texas Family Code sec.34.51(a)-(c). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1993. TRD-9332912 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: January 15, 1993 Proposal publication date: October 22, 1993 For further information, please call: (512) 450-3765 Subchapter G. Services to Families 40 TAC sec.sec.700.701-700.705 The new sections are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs; and Chapter 41, which authorizes the department to enforce laws for the protection of children. The new sections are also adopted under the Texas Family Code, Title 2, Chapter 34, which authorizes the department to provide services to alleviate the effects of child abuse and neglect; 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 the Texas Department of Human Services to TDPRS. The new sections implement Texas Family Code sec.34. 51(a)- (c). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1993. TRD-9332970 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: January 15, 1994 Proposal publication date: October 22, 1993 For further information, please call: (512) 450-3765 Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's Note: As required by the Insurance Code, Article 5.96 and 5. 97, the Texas Register publishes notices of actions taken by the Department of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure and Texas Register Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the Department of Insurance, 333 Guadalupe, Austin.) The State Board of Insurance of the Texas Department of Insurance, at a public meeting held at 9:00 a.m., on December 1, 1993, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street, Austin, adopted amendments as proposed by Staff of the Texas Automobile Rules and Rating Manual (the Manual) and the Texas Standard Provisions for Automobile Insurance Policies (the Standard Provisions), to conform to statutory changes made by the 73rd Legislature: new Amendatory Endorsement TE 00 40, Rule 13 (Cancellation), and Rule 50 (Antitheft Discount). New Amendatory Endorsement TE 00 40, to be included in both the Manual and the Standard Provisions, is needed to amend the Common Policy Conditions used with the Business Auto, Garage, and Truckers Coverage Forms to comply with the requirements of Section 20.11 of HB 1461, amending the Insurance Code, Article 21.49-2A(b). The changes prohibit an insurer from cancelling a policy that is a renewal or continuation policy except for reasons specified in the statute. The statute also continues to prohibit cancellation of a policy in its initial policy period after 60 days following issuance, except for reasons specified in the statute. The amendments to Manual Rule 13 contain the same prohibitions as Endorsement TE 00 40. Prior to the statutory change, an insurer was allowed to cancel any Business Auto, Garage, or Truckers Coverage Form for any reason during the first 60 days, even a renewal or continuation policy. The change to Manual Rule 50 compels any insurer to apply the prescribed antitheft discount to comprehensive coverage for a vehicle with a qualifying antitheft device. This change conforms Rule 50 to the Insurance Code, Article 5.03-2, as amended by Senate Bill 26. Staff's petition (Reference Number A-0993-24-I), was published in the October 29, 1993, issue of the Texas Register (18 TexReg 7535). The State Board of Insurance has jurisdiction over this matter pursuant to the Insurance Code, Articles 5.96, 5.98, and 5.101. The amendments as adopted by the State Board of Insurance are shown in the exhibits which are filed with the Chief Clerk under Reference Number A-0993-24- I, and are incorporated by reference by Board Order Number 60575. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative Procedure and Texas Register Act. Consistent with the Insurance Code, Article 5.96(h), prior to the effective date of this action, the Board will notify all insurers writing automobile insurance. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative Procedures and Texas Register Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 3, 1993. TRD-9333061 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: January 1, 1994 For further information, please call: (512) 463-6328