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 4. AGRICULTURE Part II. Texas Animal Health Commission Chapter 55. Swine 4 TAC sec.55.6 The Texas Animal Health Commission adopts an amendment to sec.55.6, without changes to the proposed text as published in the October 15, 1993, issue of the Texas Register (18 TexReg 7076). It was necessary to amend the regulations to waive the pseudorabies retest requirements for swine that enter from the premise of origin in a Stage V state or a qualified herd in a Stage V state. In addition breeding swine would have to have been tested negative within 30 days prior to entry to be exempt from post entry testing. Breeding swine not known to be infected with or exposed to pseudorabies which enter Texas from a qualified herd in a Stage IV state or the premise of origin in a Stage V state and were tested negative within 30 days prior to entry are not required to be retested. Feeder swine entering for feeding for show will not have to be tested for pseudorabies after entry if they are moved directly from a herd of origin in a Stage V state or from a qualified herd in a Stage IV state. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, sec.161.041, which authorizes the commission to adopt rules regarding testing of Livestock; sec.161.081, which authorizes the commission to regulate the movement of livestock into the state; and sec.165.022, which authorizes the commission to adopt rules for eradication of swine diseases. 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 9, 1993. TRD-9333606 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: January 5, 1994 Proposal publication date: October 15, 1993 For further information, please call: (512) 479-6697 TITLE 10. COMMUNITY DEVELOPMENT Part VII. Council on Workforce and Economic Competitiveness Chapter 252. Local Workforce Development Boards 10 TAC sec.252.1 The Council on Workforce and Economic Competitiveness adopts new sec.252.1, with changes to the proposed text as published in the October 29, 1993, issue of the Texas Register (18 TexReg 7509). The Workforce and Economic Competitiveness Act, Chapter 668, Acts of the 73rd Legislature, 1993, requires the Council to issue rules for the formation of local workforce development boards to plan, oversee, and evaluate the delivery of all workforce training and services programs in the local workforce development areas. The Workforce and Economic Competitiveness Act, Chapter 668, Acts of the 73rd Legislature, 1993, provides that the Council on Workforce and Economic Competitiveness will oversee the process for the formation of local workforce development areas. The Council may grant waivers for the formation of the local areas prior to January 1, 1993. This rule provides guidance for the formation and criteria for the early certification of the local workforce development boards. The chief elected officials in each designated local workforce development area must submit an application and provide the information required to receive a waiver from the Council. The waiver will allow them to submit the application to establish the local board to the Governor prior to January 1, 1995. Public hearings on the proposal were held in Arlington, Austin, Houston, Laredo, and Lubbock. Comments on the proposed rule were also received in writing. Comments included the following: The Council should grant waivers of the independent staffing requirement for local workforce development boards and the requirement of independent provision of services during the period prior to January 1, 1993. Persons commenting felt the refusal to grant waivers during this period was contrary to the intent of the legislation. Rural areas, in particular, have difficulty with these requirements. One comment stated that the general tone of the rule should be modified to encourage the early formation of local workforce development boards rather than erect barriers against their creation. Another comment was that the definition of chief elected official should be enlarged to include the mayors of each county seat. Municipal governments should be considered to be at least as significant as the counties in terms of local resource base and the most sophisticated available institutional apparatus. Others commented in favor of the requirement of unanimous agreement among the chief elected officials to form a local workforce development board. Middle Rio Grande Development Council, Austin/Travis County PIC, Heart of Texas Council of Governments, Central Texas Council of Governments, West Central Texas Council of Governments, South Plains College, Permian Basin Regional Planning Commission, Concho Valley Council of Governments, South Plains Quality Workforce Committee, Lubbock/Garza County PIC, and South Plains Rural PIC made comments concerning the proposed new section. The Council generally agreed with the comments and the section was changed accordingly. The designation of chief elected officials was changed to include mayors of cities with a population of 100,000 or more rather than 200,000. This did not add as many cities as the comment to add all county seats, but did increase the representation of mayors as chief elected officials. With respect to the comments on the granting of waivers of the requirements for independent staffing of the local workforce development boards and independent provision of training services, the Council determined that waivers would be allowed. The new section is proposed under the Workforce and Economic Competitiveness Act, Chapter 668, Acts of the 73rd Legislature, 1993, which requires the Council on Workforce and Economic Competitiveness to issue rules for the formation of local workforce development boards. sec.252.1. Requirements for Formation of Local Workforce Development Boards prior to January 1, 1995. (a) Purpose for Waivers. (1) Upon application by the chief elected officials and approval of the Council on Workforce and Economic Competitiveness, a waiver may be granted by the Council to allow an application to form a local workforce development board to be submitted to the Governor prior to January 1, 1995. (2) Before a waiver may be granted, all requirements of this section must be met. (3)em>>It is not the intention of the Council to grant all requests for waivers, even if the basic requirements of this section are met. Waivers are discretionary and not a matter of right. It is the intention of the Council to grant a limited number of waivers to allow boards to be formed to serve as pilot projects to aid in the formation of boards throughout the state beginning January 1, 1995. (b) State and Federal Law. The formation of local workforce development boards is governed by the following federal statutes and regulations and state statutes: (1) The Job Training Partnership Act, as amended, 29 U.S.C., sec.1501, et seq.; (2) 20 C.F.R. , Part 628; and (3) The Workforce and Economic Competitiveness Act, Chapter 668, Acts of the 73rd Legislature, Regular Session, 1993. (c) Chief Elected Officials. The following officials are designated as the chief elected officials for the purposes of establishing agreements to form local workforce development boards: (1) The mayor of each city with a population of 100,000 or more according to the last federal census in a workforce development area; and (2) The county judge of each county included in a workforce development area as designated by the Governor. (3) The chief elected officials may, and are encouraged to, consult with local officials other than those listed in subparagraphs (1) and (2) of this subsection. (d) Time of Application. (1) Chief elected officials may not request a waiver to establish a local board until the Governor has designated local workforce development areas as provided in the Workforce and Economic Competitiveness Act, Chapter 668, Acts of the 73rd Legislature, 1993. (2) Except as provided in this section, the chief elected officials of a local workforce area may not apply for approval of the formation of a local workforce development board, and no local workforce development board shall be approved, prior to January 1, 1995. (e) criteria for waiver: (1) All requirements of this section must be met; (2) An applicant must establish how the grant of a waiver would contribute to the improvement of the overall development of the local workforce development system; and (3) An applicant must demonstrate commitment to the formation of the local workforce development board, through such things as commitment of resources, staff, materials, funds, joint use of facilities and staff, and other similar proposals. (f) Procedure for Formation of a Local Workforce Development Board prior to January 1, 1995. The following procedures must be followed to apply for a waiver for the formation of a local workforce development board: (1) Pre-application procedure. If a majority of the chief elected officials agree to initiate procedures to review the possibility of establishing a local workforce development board, a letter should be sent to the Executive Director of the Council requesting pre-application status. The Council staff will be available to work with local officials during the development of the application to make the process as uncomplicated as possible. During the pre-application process and prior to applying to the Council for a waiver, the chief elected officials must perform the following acts: (A) The chief elected officials must conduct a process to consider the views of all affected local organizations, including private industry councils, quality workforce planning committees, and other affected organizations before making a final decision to apply for a waiver for the early formation of a local workforce development board. (B) Prior to the submission of the application, the chief elected officials must hold a public meeting to discuss and gather information concerning the establishment of a local workforce development board. (2) Application procedure. (A) The chief elected officials must submit an application to the Council on Workforce and Economic Competitiveness. The application will be reviewed by the Council staff according to criteria established by the Council in this section and forwarded to the Governor with a recommendation for final action. Each application must include: (i) an agreement in writing signed by the chief elected officials in the local workforce development area, delineating: (I) the purpose of the agreement; (II) the process that will be used to select the chief elected official who will act on behalf of the other chief elected officials and the name of such chief elected official if the person has been selected; (III) the initial size of the local workforce development board; (IV) the process to be used to appoint the board members, which must be consistent with applicable federal and state laws; and (V) the terms of office of the members of the board; (ii) evidence that the chief elected officials have considered the views of all affected local organizations, including consideration prior to deciding to form a local board; (iii) evidence that the chief elected officials in the area have agreed to the establishment of a local board; (iv) evidence that the local board can meet the legislative requirement that they establish workforce development centers within 180 days; (v) evidence that the board is prepared to develop a single plan for addressing the workforce development needs in their area that is consistent with the State's strategic plan; (vi) evidence that the board is prepared to assume the functions and responsibilities of local workforce development advisory boards, councils, and committees including private industry councils, quality workforce planning committees, job service employer committees, and local general vocational program advisory committees; (vii) a plan for independent staffing for the board and methods to be utilized to procure any services that have previously been offered directly (a waiver of this requirement may be granted); and (viii) a statement concerning how the operation of the board will be financed, including sources of funding, additional costs to be incurred over existing resources, and any savings from current operations. (B) Evidence for the items in the application may consist of written documents, written agreements, minutes of pubic meetings, copies of correspondence, and such other documentation as may be appropriate. 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 10, 1993. TRD-9333617 Tom C. Frost Presiding Officer Texas Council on Workforce and Economic Competitiveness Effective date: January 3, 1994 Proposal publication date: October 29, 1993 For further information, please call: (512) 305-7007 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 5. Transportation Division Subchapter B. Operating Certificates, Permits and Licenses 16 TAC sec.5.33 (Editor's note: In the July 20, 1993, issue of the Texas Register (18 TexReg 4726) the Railroad Commission of Texas proposed an amendment to 16 TAC sec.5.33. The notice of final adoption for that amendment was subsequently published in the September 24, 1993, issue of the Texas Register (18 TexReg 6545), citing an effective date of January 1, 1994. In a separate rulemaking, the commission published an additional proposed amendment to 16 TAC sec.5.33 in the October 15, 1993, issue of the Texas Register (18 TexReg 7079), the final adoption of which is published in this issue of the Texas Register, citing an effective date of January 4, 1994. Because the initial amendment has not yet taken effect, the final adoption published in this issue of the Texas Register does not reflect the rule as it will exist as of January 4, 1994; therefore, in the interest of clarity, the rule is being printed in this note as it will appear in the Texas Administrative Code as of January 4, 1994. sec.5.33. Contract Carriers. A contract carrier permit shall not authorize the performance of transportation services for more than 15 shippers, unless it is issued to a truckload contract carrier as that term is defined in sec.5.46 of this title (relating to Truckload Contract Carriers). A truckload contract carrier permit cannot be limited as to the number of parties or eligible contracts to be served under such permit.) The Railroad Commission of Texas adopts an amendment to sec.5.33, without changes to the proposed text as published in the October 15, 1993, of the Texas Register (18 TexReg 7079). The amendment is adopted to increase the ability of contract carriers more effectively to serve the shipping public. The amendment increases the maximum number of shippers a single contract carrier permit holder can serve under its permit from 10 to 15. On September 24, 1993, the Texas Register published for final adoption a different amendment to sec.5.33, effect January 1, 1994, clarifying that the section does not apply to truckload contract carriers. Effective January 1, 1994, the rule as amended will read as follows: sec.5.33. Contract Carriers. A contract carrier permit shall not authorize the performance of transportation services for more than 10 shippers, unless it is issued to a truckload contract carrier as that term is defined in sec.5.46 of this title (relating to Truckload Contract Carriers). A truckload contract carrier permit cannot be limited as to the number of parties or eligible contracts to be served under such permit. Two comments were received regarding the proposed rule. One commenter, Texas Association For Competitive Transportation, supports the amendments on the grounds that the amendment decreases unnecessary regulatory burdens consistent with the spirit of Senate Bill 1313 of the 73rd Legislature; the amendment will not blur the distinctions that exist between contract carriers and common carriers; the amendment will in no way compromise the protection of the public, because a proposal to serve additional shippers would have to be supported by a showing of public need; and other states have similar or less stringent limitations on the numbers of shippers that can be served under a contract carrier permit. The other commenters supports the amendment on the grounds that it follows a national trend that is being set by the marketplace, and that the amendment would alleviate the need of carriers who desire to serve more shippers to form a second company and seek another contract carrier permit. The commission agrees that the amendment is consistent with the spirit of Senate Bill 1313 and that the amendment will not affect the burden of proof placed on applicants for contract carrier authority; they will still be required to prove a need for the proposed service. The amendment is adopted under the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b, which vest the commission with the power and authority to prescribe all rules and regulations necessary for the government of motor carriers, and to supervise and regulate such carriers in all matters affecting the relationship between carriers and the shipping public. 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 13, 1993. TRD-9333640 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP GAs Railroad Commission of Texas Effective date: January 4, 1994 Proposal publication date: October 15, 1993 For further information, please call: (512) 463-7095 Subchapter H. Tariffs and Schedules 16 TAC sec.5.137 The Railroad Commission of Texas adopts an amendment to sec.5.137, concerning when weighing is unnecessary, without changes to the proposed text as published in the November 2, 1993, issue of the Texas Register (18 TexReg 7906). The amendment will allow specialized motor carriers to assess freight charges based on the shipper's representation of weight and count when transporting new iron and steel angles, bars, beams, channels, flats, strips, plate, sheets and/or new and unused pipe. These articles are produced and sold in standardized lots, with the selling price determined by calculating the theoretical weight based on pounds per unit of measure. Theoretical weights are available for these articles in industry publications. The amendment will reduce shipping delays, traffic congestion, and costs associated with the location and utilization of scales in major metropolitan areas. Five public comments were received regarding the proposed rule and they were all favorable. Texas United Pipe, Inc.; J and R Contractor, Inc., joined by Walton Transportation, Inc.; J-M Manufacturing Company, Inc.; and the Texas Motor Transportation Association support adoption of the proposed rule as published. Barbour Trucking Company, Inc., supports adoption of the proposed rule with additional language that would include "machinery, concrete products, and other specialized commodities..." The Commission disagrees that the suggested additional commodities be included because no assurance was provided to show the additional commodities have weights which have been specified as standardized in recognized industry publications. The amendment is adopted pursuant to Texas Civil Statutes, Article 911b, sec.4(a), which vest the commission with power and authority to prescribe all rules and regulations necessary for the government of motor carriers, and to supervise and regulate motor carriers in all matters affecting the relationship between such carriers and the shipping public. 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 13, 1993. TRD-9333641 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: January 4, 1994 Proposal publication date: November 2, 1993 For further information, please call: (512) 463-7096 TITLE 19. EDUCATION Part I. Texas Higher Education Coordinating Board Chapter 5. Program Development Subchapter H. Approval of Off-Campus and Out-of-District Instruction for Public Colleges and Universities 19 TAC sec.5.156 The Texas Higher Education Coordinating Board adopts repeal of sec.5.156, concerning Consideration of Courses Offered in Texas by Non-Texas Public Institutions of Higher Education, without changes to the proposed text as published in the September 14, 1993, issue of the Texas Register (18 TexReg 6180). There will be improvement of the Coordinating Board's effectiveness in preventing deception of the public resulting from the conferring and use of fraudulent or substandard college or university degrees. This section is being repealed and its essential contents are being to transferred to sec.5.211 and sec.5.217 in order to implement more effectively the intent of Texas Education Code, Chapter 61, Subchapter H. No comments were received regarding adoption of the repeal. The repeal is adopted under the Texas Education Code, sec.61.403, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Consideration of Courses Offered in Texas by Non-Texas Public Institutions of Higher Education. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 10, 1993. TRD-9333673 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 5, 1994 Proposal publication date: September 14, 1993 For further information, please call: (512) 483-6110 Subchapter K. Private Degree-Granting Institutions Operating in Texas 19 TAC sec.sec.5.211, 5.213, 5.217, 5.222 The Texas Higher Education Coordinating Board adopts amendments to sec.sec.5. 211, 5.213, 5.217, and 5.222, concerning Private and Out-of-State Public Degree- Granting Institutions Operating in Texas, without changes to the proposed text as published in the September 14, 1993, issue of the Texas Register (18 TexReg 6181). Enforcing the proposed rules could improve the Coordinating Board's effectiveness in preventing deception of the public resulting from the conferring and use of fraudulent or substandard college or university degrees as provided in Texas Education Code, Chapter 61, Subchapter G. The rules were amended to clarify the Coordinating Board's statutory authority over off-campus activities or nonexempt institutions when those activities fall short of the definition of "branch campus" found in sec.5.211. Section 5.222 was amended editorially to conform more precisely to the Administrative Procedure Act. The changes will be applied in the Coordinating Board's consideration of requests from nonexempt institutions of higher education seeking to operate degree programs or degree-credit courses in Texas as provided in Texas Education Code, Chapter 61, Subchapters G and H. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Education Code, sec.61.311, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Private and Out-of-State Public Degree-Granting Institutions Operating in Texas. 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 10, 1993. TRD-9333674 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 5, 1994 Proposal publication date: September 14, 1993 For further information, please call: (512) 483-6160 Subchapter O. Offering of Small Classes by Public Senior Colleges and Universities 19 TAC sec.sec.5.301-5.303 The Texas Higher Education Coordinating Boards adopts repeal of sec.sec.5. 301-5.303, concerning Offering of Small Classes by Public Senior Colleges and Universities (Funding), without changes to the proposed text as published in the September 14, 1993, issue of the Texas Register (18 TexReg 6182). The rules may encourage universities to offer some classes that would otherwise not be offered. The rules are being repealed and rewritten to be consistent with legislative intent expressed in Senate Bill 5. Some hours not now eligible for state funding will be eligible for funding in the future. There were no comments received regarding adoption of the repeals. The repeals are adopted under the Texas Education Code, sec.61.027, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Offering of Small Classes by Public Senior Colleges and Universities (Funding). 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 10, 1993. TRD-9333677 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 5, 1994 Proposal publication date: September 14, 1993 For further information, please call: (512) 483-6160 19 TAC sec.5.301, sec.5.302 The Texas Higher Education Coordinating Boards adopts new sec.5.301 and sec.5.302, concerning Offering of Small Classes by Public Senior Colleges and Universities, without changes to the proposed text as published in the September 14, 1993, issue of the Texas Register (18 TexReg 6182). The rules may encourage universities to offer some classes that would otherwise not be offered. The rules are being changed to be consistent with legislative intent expressed in Senate Bill 5. Some hours not now eligible for state funding will be eligible for funding in the future. There were no comments received regarding adoption of the new sections. The new sections are adopted under the Texas Education Code, sec.61.027, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Offering of Small Classes by Public Senior Colleges and Universities. 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 10, 1993. TRD-9333676 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 5, 1994 Proposal publication date: September 14, 1993 For further information, please call: (512) 483-6160 Chapter 9. Public Junior College Subchapter D. Basic Standards 19 TAC sec.9.63 The Texas Higher Education Coordinating Boards adopts an amendment to sec.9.63, concerning Basic Standards (Admission), without changes to the proposed text as published in the September 14, 1993, issue of the Texas Register (18 TexReg 6183). There will be less state control over the admissions of high school students and more local control by the institutions that are attuned to the needs of their local communities. Colleges are experiencing an increased number of requests for admission from high school students who have not completed the junior year. The current rules stipulate that waivers for this type of high school student must be granted by the Commissioner of Higher Education or his designee. The rule change would delegate the final decision to the local level: the chief academic officer of each college. Increasingly, admissions applications are received by colleges from students who are taught at home. The current rules address prospective student attending public school who have not completed high school or prospective students who have dropped out of the public school system. The rule change was needed to provide procedures for admitting children taught at home. The amendment would relegate the final decision on admissions of each type of high school student described previously to the local level. The effect of the change would be deregulation of the admissions process from the state and increased local control. There were comments received. Two of the schools expressed the need for stronger language in the rule regarding assessment of the academic ability of the nontraditional high school student, i.e. the academic skill level of the student rather than equivalent grade level. The remaining comments were supportive of the rule. Alvin Community College; Angelina College; Kilgore College; North Harris College; and TSTC-Amarillo commented on the proposed amendment. The Community and Technical College division of the Coordinating Board agreed that the suggestions were good comments, and these will be reviewed by the Committee on Lower Division General Academic and Transfer Issues who assisted in the development of the policy. The amendment is adopted under the Texas Education Code, sec.130.001, and sec.61.061, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Basic Standards (Admission). 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 10, 1993. TRD-9333675 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 5, 1994 Proposal publication date: September 14, 1993 For further information, please call: (512) 483-6160 Chapter 21. Student Services Subchapter B. Determining Residence Status 19 TAC sec.21.32 The Texas Higher Education Coordinating Board adopts an amendment to sec.21.32, concerning Tuition Reciprocity with Bordering States or Countries, without changes to the proposed text as published in the September 14, 1993, issue of the Texas Register (18 TexReg 6184). Students from bordering states will be encouraged to enroll in technical colleges in Texas, thus enriching the mix of students on campus; Texas students will be allowed (through reciprocity) to attend technical schools in bordering states that those states' resident tuition rates. This proposed amendment is being made to bring our residence rules into compliance with laws passed in the 1993 legislative session. On a reciprocal basis, students from bordering states will be allowed to enroll in technical colleges located with 100 miles from their state border and pay the resident tuition rate. Such students graduating or completing 45 semester credit hours at a technical college shall be entitled to pay resident rates at a Texas public senior upper level institution located in the same county or an adjacent county to that in which the technical college is located. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.54.060, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Determining Residence Status. 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 10, 1993. TRD-9333678 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 5, 1994 Proposal publication date: September 14, 1993 For further information, please call: (512) 483-6160 19 TAC sec.21.39 The Texas Higher Education Coordinating Board adopts an amendment to sec.21.39, concerning Determining Residence Status (Glossary), without changes to the proposed text as published in the September 14, 1993, issue of the Texas Register (18 TexReg 6185). Homeless individuals will be identified consistently by all public institutions. The proposed amendment is being made to bring our residence rules into compliance with laws passed in the 1993 legislative session. The rule will provide institutions a consistent definition for a "homeless individual." No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.54.052, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Determining Residence Status (Glossary). 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 10, 1993. TRD-9333679 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 5, 1994 Proposal publication date: September 14, 1993 For further information, please call: (512) 483-6160 19 TAC sec.21.40 The Texas Higher Education Coordinating Board adopts new sec.21.40, concerning Determining Residence Status (Homeless Individual), with changes to the proposed text as published in the September 14, 1993, issue of the Texas Register (18 TexReg 6185). Homeless individuals enrolling in vocational education courses at public junior colleges will be able to register by paying the resident rather than nonresident tuition rate. The fiscal note estimated the costs to the state to be $3,000 per year. This new section is being made to bring our residence rules into compliance with laws passed in the 1993 legislative session. Homeless individuals will be defined consistently by public institutions of higher education, and those enrolled in vocational education courses at a public junior college will be allowed to register by paying the resident rather than nonresident tuition rate. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Education Code, sec.54.052, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Determining Residence Status (Homeless Individual). sec.21.40. Homeless Individual. (a) A homeless individual who resides in Texas for the 12-month period immediately preceding the date of registration, but who does not have a permanent residence in Texas, may enroll in vocational education courses at a public junior college by paying the residence tuition rate. (b) For this purpose, a homeless individual is defined by 42 United States Code, sec.11302, which states, "the term homeless or homeless individual or homeless person" includes: (1) an individual who lacks a fixed, regular, and adequate nighttime residence; and (2) an individual who has a primary nighttime residence that is: (A) a supervised publicly or privately operated shelter designed to provide temporary living accommodations; (B) an institution that provides temporary residence for individuals intended to be institutionalized; or (C) a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings. (c) Documentation for a homeless individual may consist of written statements from the office of one or more legitimate social service agencies located in Texas, attesting to the provision of services to the homeless individual over the previous 12-month period. 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 10, 1993. TRD-9333680 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 5, 1994 Proposal publication date: September 14, 1993 For further information, please call: (512) 483-6160 Subchapter J. The Physician Education Loan Repayment Program 19 TAC sec.sec.21.251-21.265 The Texas Higher Education Coordinating Board adopts repeal of sec.sec.21. 251-21.265, concerning the Physician Education Loan Repayment Program, without changes to the proposed text as published in the September 14, 1993, issue of the Texas Register (18 TexReg 6186). Physician recipients will benefit from the revised provisions. The rules are being repealed and rewritten. The changes are required to bring the program into compliance with state law. The revisions will open the program up to more physicians. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Education Code, sec.61.532 and sec.61. 537, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning the Physician Education Loan Repayment Program. 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 10, 1993. TRD-9333682 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 5, 1994 Proposal publication date: September 14, 1993 For further information, please call: (512) 483-6160 19 TAC sec.sec.21.251-21.266 The Texas Higher Education Coordinating Board adopts new sec.sec.21.251-21. 266, concerning the Physician Education Loan Repayment Program. Section 21. 261(b)(2)(c) and sec.21.263 are adopted with changes to the proposed text as published in the September 14, 1993, issue of the Texas Register (18 TexReg 6186). Sections 21.251-21.260, 21.262, and 21.264-21.266 are adopted without changes and will not be republished. The rule will function by allowing physician recipients to benefit from the revised provisions. The changes are required to bring the program into compliance with state law. The revisions will open the program up to more physicians. Comments were received concerning parts of the program rules which were not being proposed for change. Texas Medical Association commented on the proposed new sections. The new sections are adopted under the Texas Education Code, sec.61.532 and sec.61.537, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning the Physician Education Loan Repayment Program. sec.21.261. State-funded Physician Education Loan Repayment Program. (a) The state-funded Physician Education Loan Repayment Program is limited to repayments on education loans on behalf of physicians who practice in economically depressed or rural medically underserved areas of Texas or for one of the following state agencies or programs: (1) the Texas Department of Health; (2) the Texas Department of Mental Health and Mental Retardation; (3) the Texas Department of Criminal Justice; (4) the Texas Youth Commission; (5) a Community Health Center in Texas; and (6) an approved family practice residency training program in Texas. (b) The commissioner may authorize repayment of eligible education loans made to an eligible physician who shows evidence of a strong service commitment and who: (1) has submitted the appropriate application to the board; (2) has completed at least one year of medical practice: (A) in an economically depressed or rural medically underserved area of the state; or (B) for one of the four state agencies named in subsection (a) of this section; or (C) for an approved family practice residency training program in Texas. sec.21.263. Priorities of Application Acceptance. Acceptance of applicants will depend on the availability of funds. Renewal applicants in the state-funded and expanded programs will be given priority treatment over first-time applicants. The Texas Family Practice Residency Advisory Committee shall establish priorities among eligible physicians for first-time repayment assistance by taking into account the degree of physician shortage, geographic location, and other criteria the committee considers appropriate. 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 10, 1993. TRD-9333681 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 5, 1994 Proposal publication date: September 14, 1993 For further information, please call: (512) 483-6160 Subchapter I. Paul Douglas Teacher Scholarship Program 19 TAC sec.sec.21.301-21.324 The Texas Higher Education Coordinating Board adopts the repeal of sec.sec.21. 301-21.324, concerning Paul Douglas Teacher Scholarship Program, without changes to the proposed text as published in the September 14, 1993, issue of the Texas Register (18 TexReg 6188). The needs of the State will be met in addressing teacher shortage areas, including the demand for and supply of early childhood, elementary, and secondary teachers and the demand for teachers with training in specific academic disciplines in the State; the changes will benefit both the student recipients and the State. This subchapter is being repealed and rewritten. These changes are required to comply with federal regulations mandated by the Higher Education Amendments of 1992. The changes will benefit the applicants for the scholarship by broadening the selection criteria. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Education Code, sec.52.54, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning the Paul Douglas Teacher Scholarship Program. 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 10, 1993. TRD-9333684 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 5, 1994 Proposal publication date: September 14, 1993 For further information, please call: (512) 483-6160 19 TAC sec.sec.21.301-21.325 The Texas Higher Education Coordinating Board adopts new sec.sec.21.301-21. 325, concerning Paul Douglas Teacher Scholarship Program. Section 21.323(a)(2) is adopted with changes to the proposed text as published in the September 14, 1993, issue of the Texas Register (18 TexReg 6189). Sections 21.301-21. 322, 21.324, and 21.325 are adopted without changes and will not be republished. The needs of the State will be met in addressing teacher shortage areas, including the demand for and supply of early childhood, elementary, and secondary teachers and the demand for teachers with training in specific academic disciplines in the State; the changes will benefit both the student recipients and the State. These changes are required to comply with federal regulations mandated by the Higher Education Amendments of 1992. The changes will benefit the applicants for the scholarship by broadening the selection criteria. No comments were received regarding adoption of the new sections. The new rules are adopted under the Texas Education Code, sec.52.54, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning the Paul Douglas Teacher Scholarship Program. sec.21.323. Deferments. (a) To qualify for any deferments, the scholar must notify the board of his or her claim to a deferment and submit written proof acceptable to the board that he or she is: (1) engaged in a full-time course of study at an institution of higher education; (2) serving, not in excess of three years, on active duty as a member of Vista, the Peace Corps, or a member of the armed services of the United States; (3) temporarily totally disabled, for a period not to exceed three years, as established by a sworn affidavit of a qualified physician; (4) unable to secure employment for a period not to exceed 12 months by reason of the care required by a spouse who is disabled; (5) seeking and unable to find full-time employment for a single period not to exceed 12 months; (6) seeking and unable to find full-time employment as a teacher in a public or private non-profit pre-school, elementary, or secondary school and unable to satisfy the terms of the repayment schedule. This deferment is limited to a single period not to exceed 27 months. (b) The board shall extend the ten-year loan repayment period by a period equal to the length of any deferment granted by the board. If the scholar proves his or her financial hardship to the board's satisfaction, then the board may extend the ten-year loan repayment period for a period as determined by the board. (c) During the time a scholar qualifies for any of the deferments in subsection (a) of this section, he or she need not make scholarship payments. 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 10, 1993. TRD-9333683 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 5, 1994 Proposal publication date: September 14, 1993 For further information, please call: (512) 483-6160 Subchapter AA. Texas-Mexico Reciprocal Educational Exchange Program 19 TAC sec.sec.21.901-21.906, 21,909 The Texas Higher Education Coordinating Board adopts amendments to sec.sec.21. 901-21.906 and 21.909, concerning Reciprocal Education Exchange Program, without changes to the proposed text as published in the September 14, 1993, issue of the Texas Register (18 TexReg 6192). Students from Texas will be encouraged to enrich their learning experiences by studying in Canada; students in Texas will be exposed to more students from Canada, thus expanding their opportunities to learn from them. The amendments are being made to bring our residence rules into compliance with laws passed in the 1993 legislative session. The existing exchange program for students/faculty/staff from Mexico and their counterparts at Texas public institutions will be expanded to include students, faculty, and staff from Canada. There were no comments received regarding adoption of the amendments. The amendments are adopted under Texas Education Code, sec.54.060, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning the Reciprocal Educational Exchange Program. 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 10, 1993. TRD-9333685 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 5, 1994 Proposal publication date: September 14, 1993 For further information, please call: (512) 483-6160 TITLE 22. EXAMINING BOARDS Part XV. Texas State Board of Pharmacy Chapter 281. General Provisions 22 TAC sec.281.48 The Texas State Board of Pharmacy adopts an amendment to sec.281.48, concerning Informal Disposition of Contested Cases, with one change to the text as proposed in the September 7, 1993, Texas Register (18 TexReg 5936). This amendment brings the Texas Pharmacy Rule of Procedure into compliance with the directives included in the new sec.17D of the Texas Pharmacy Act as added by Senate Bill 621 passed by the 73rd Legislature to be effective September 1, 1993. The rule outlines procedure for informal conferences including provisions, when applicable and permitted by law, for complainants to have the opportunity to be heard at an informal conference. One comment was received regarding the citation to the Administrative Procedure Act (APA) in subsection (b). The commenter indicated that during the 73rd Legislative Session APA was codified into the Government Code. The Agency agrees with this comment and has corrected the citation to APA. The rule is adopted under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1,) sec.16(a), which provides the Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the Act; Texas Pharmacy Act, sec.17B(c), which becomes effective September 1, 1993, and requires that the board adopt a form for complaints; and Texas Pharmacy Act, sec.17D, which became effective September 1, 1993, and requires that the Board adopt rules governing informal disposition of contested cases. sec.281.48. Informal Disposition of a Contested Case. (a) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, default, or dismissal. (b) Prior to the imposition of disciplinary sanction(s) against a license, the licensee shall be offered an opportunity to attend an informal conference and show compliance with all requirements of law, in accordance with the Administrative Procedure and Act, sec.2001.054(c) (Government Code, Chapter 2001). (c) Informal conferences shall be attended by the executive director/secretary or designated representative, legal counsel of the agency or an attorney employed by the office of the attorney general, and other representative(s) of the agency as the executive director/secretary and legal counsel may deem necessary for proper conduct of the conference. The licensee and/or the licensee's authorized representative(s) may attend the informal conference and shall be provided an opportunity to be heard. (d) In any case where charges are based upon information provided by a person (complainant) who filed a complaint with the board, the complainant may attend the informal conference, unless the proceedings are confidential under the Texas Pharmacy Act, sec.27A or other applicable law. A complainant who chooses to attend an informal conference shall be provided an opportunity to be heard with regard to charges based upon the information provided by the complainant. Nothing herein requires a complainant to attend an informal conference. (e) Informal conferences shall not be deemed meetings of the board and no formal record of the proceedings at such conferences shall be made or maintained. (f) Any proposed consent order shall be presented to the board for its review. At the conclusion of its review, the board shall approve or disapprove the proposed consent order. Should the board approve the proposed consent order, the appropriate notation shall be made in minutes of the board and the proposed consent order shall be entered as an official action of the board. Should the board disapprove, the proposed consent order shall be scheduled for public hearing. 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 14, 1993. TRD-9333659 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: January 4, 1994 Proposal publication date: September 7, 1993 For further information, please call: (512) 832-0661 22 TAC sec.281.58 The Texas State Board of Pharmacy adopts an amendment to 281.58, concerning Executive Sessions, without changes to the proposed text as published in the September 17, 1993, Texas Register (18 TexReg 6283). The rules amend existing rule language to specify that an attorney employed by the Office of the Attorney General may advise the Board on legal considerations during executive sessions. No comments were received regarding adoption of the section The amendment is adopted under the Texas Pharmacy Act, (Texas Civil Statutes, Article 4542a-1,) sec.16(a), which provides the Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the Act. 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 14, 1993. TRD-9333657 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: January 4, 1994 Proposal publication date: September 17, 1993 For further information, please call: (512) 832-0661 22 TAC sec.281.73 The Texas State Board of Pharmacy adopts new sec.281.73, concerning Complaints, with changes to the proposed text as published in the September 7, 1993, Texas Register (18 TexReg 5936). The section describes the procedures for filing complaints made to the Board. The new section ensures compliance with provisions described in Senate Bill 621 adopted by the 73rd Legislature. Senate Bill 621 was passed by the 73rd Legislature and adds a new sec.17B to the Texas Pharmacy Act which becomes effective September 1, 1993. Section 17B provides that "the board by rule shall adopt a form for the filing of complaints made to the board." No comments were received on the proposed rule. The changes made in the proposed text were recommended by agency staff and were style changes only and not substantive. The new rule is adopted under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1,) sec.16(a), which provides the Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the Act and Texas Pharmacy Act; sec.17B(c), which becomes effective September 1, 1993, and requires that the board adopt a form for complaints. The following is the article that is affected by this rule: Texas Civil Statutes, Article 4542a-1. sec.281.73. Complaints. Complaints may be filed with the agency orally by phone or in person at the agency's office, or in any written form, including submission of a completed complaint form. A complaint form shall be maintained at the agency's office for use at the request of any complainant. The complaint form shall request information necessary for the proper processing of the complaint by the agency, including, but not limited to: (1) complainant's name, address, and phone number; (2) name, address and phone number of subject of complaint, if known; (3) date of incident; (4) description of drug(s) involved, if any; and (5) description of incident giving rise to complaint. 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 14, 1993. TRD-9333658 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: January 4, 1994 Proposal publication date: September 7, 1993 For further information, please call: (512) 832-0661 Chapter 283. Licensing and Requirements for Pharmacists 22 TAC sec.283.9, sec.283.10 The Texas State Board of Pharmacy adopts amendments to sec.283.9 and sec.283.10, concerning Fee Requirements for Licensure by Examination and Reciprocity and Requirements for Application for a Pharmacist License Which has Expired, without changes to the proposed text as published in the September 7, 1993, Texas Register (18 TexReg 5936). The rule amendments implement provisions of sec.16(a) and sec.24(g) of Texas Pharmacy Act as amended by Senate Bill 621 passed by the 73rd Legislature which became effective September 1, 1993. The Act now specifies that a pharmacist may not renew a license that has been expired for one year rather than two years. These amendments outline the procedures a pharmacist must follow to obtain a new license. No comments were received on the proposed amendments. The amendments are adopted under the Texas Pharmacy Act, sec.16(a), which gives the Board the authority to adopt rules for the proper administration of the Act; and sec.24(g), which specifies that the Board may not renew a license that has been expired one year or more. The following is the article that is affected by this rule: Texas Civil Statutes, Article 4542a-1. 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 14, 1993. TRD-9333660 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: January 4, 1994 Proposal publication date: September 7, 1993 For further information, please call: (512) 832-0661 Chapter 291. Pharmacies Community Pharmacy (Class A) 22 TAC sec.291.33, sec.291.36 The Texas State Board of Pharmacy adopts amendments to sec.291.33 and sec.291.36, concerning Operational Standards and Class A Pharmacies Compounding Sterile Pharmaceuticals, with changes to the proposed text as published in the June 25, 1993, issue of the Texas Register (18 TexReg 4179). These amendments clarify requirements for a patient counseling area in Class A Pharmacies by outlining guidelines for the area which must be suitable for confidential patient counseling. Comments were received from Executive Director of the Texas Pharmaceutical Association and Executive Director of the Texas Federation of Drug Stores. Executive Director, Texas Pharmaceutical Association expressed the concerns with two areas of the rules. Regarding the requirement that the area "be designed to allow pharmacist/patient communication without the communication being easily overheard by anyone other than the patient or patient's agent," he noted: "... We believe that it would be difficult to establish an area in all pharmacies in which pharmacist/patient communications can be conducted without being easily overheard by anyone other than the patient or patient's agent.... We believe that the area should be designed to maintain the confidentiality and privacy of the information exchange and that this language would be preferable to requiring that an area be designed to prevent conversations from being easily overheard..." Regarding the requirement that the area "not be directly adjacent to the check- out or cash register area unless the check-out or cash register is for the exclusive use of the counseling area," he stated: " ... in particularly small stores the entire area available may be high traffic ... and the only realistic space may be near the cash register ... We can envision creative ways in which a wall or barrier could be placed flush with the cash register allowing a great deal of privacy immediately next to this particular device... " Executive Director, Texas Federation of Drug Stores stated: "...The Texas Federation of Drug Stores supports the concepts of clauses (i) and (ii) of the proposed rule ... We do, however, propose a small wording change to the proposed clause (i) by deleting the reference to, and the specific phrase of, "the prescription department or to." We believe to reference the prescription department may cause confusion..." "The Federation members respectfully request that the Board vote to delete all of the proposed clauses (iii) and (iv), concerning the restriction of the use of the check-out area and the area not to be in a high traffic flow area." "We oppose these two proposals because we sincerely believe that both would prove to be unworkable in a real world situation ... We firmly believe that a check-out area, if appropriately constructed, can be an adequate area for good patient counseling that can also be utilized for an occasional sale of an OTC drug product or a get well card. . .. As for the proposed clause (iv), the phrase "high traffic flow area" is vague. ... The word "high" depends upon one's perspective." The Board generally agrees with the comments from both the Texas Pharmaceutical Association and the Texas Federation of Drug Stores. We agree that a pharmacy could not meet the requirements specified in the proposed language but still have an area which was suitable for confidential patient counseling. Therefore, the proposed language has been modified to specify that the area for patient counseling must be: easily accessible to both patient and pharmacists and not allow access to prescription drugs, and be designed to maintain the confidentiality and privacy of the pharmacist/patient communication. Although the Board agreed that the requirements for the patient counseling area should not include clause (iii) and (iv) in the proposed language, the Board believed that these criteria should be included in a section which specifies those factors the Board may use in determining if an area is suitable for patient counseling. The Board believes that a listing of these factors which may be considered is necessary so that the licensee is informed. The amendments are adopted under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1): sec.17(b)(2) which gives TSBP the authority to specify minimum standards for professional environment, technical equipment, and security in the prescription dispensing area; sec.17(b)(3) which gives TSBP the authority to specify procedures for the delivery of prescription drugs or devices within the practice of pharmacy; and sec.16(a) which gives TSBP the authority to adopt rules for the proper administration and enforcement of the Act. sec.291.33. Operational Standards. (a) (No change.) (b) Environment. (1) General requirements. (A)-(C) (No change.) (D) A Class A pharmacy initially licensed after June 1, 1989, shall contain an area which is suitable for confidential patient counseling and beginning January 1, 1995, all Class A pharmacies shall contain an area which is suitable for confidential patient counseling. (i) Such counseling area shall: (I) be easily accessible to both patient and pharmacists and not allow patient access to prescription drugs; (II) be designed to maintain the confidentiality and privacy of the pharmacist/patient communication. (ii) In determining whether the area is suitable for confidential patient counseling and designed to maintain the confidentiality and privacy of the pharmacist/patient communication, the board may consider factors such as the following. (I) the proximity of the counseling area to the check-out or cash register area; (II) the volume of pedestrian traffic in and around the counseling area; (III) the presence of walls or other barriers between the counseling area and other areas of the pharmacy; and (IV) any evidence of confidential information being overheard by persons other than the patient or patient's agent or the pharmacist or agents of the pharmacist. (E)-(F) (No change.) (2) (No change.) (c)-(h) (No change.) sec.291.36. Class A Pharmacies Compounding Sterile Pharmaceuticals. (a)-(c) (No change.) (d) Operational Standards. (1) (No change.) (2) Environment. (A) General requirements. (i)-(vi) (No change.) (vii) If prescription drug orders are delivered to the patient at the pharmacy, beginning January 1, 1995, the pharmacy shall contain an area which is suitable for confidential patient counseling. (i) Such counseling area shall: (I) be easily accessible to both patient and pharmacists and not allow patient access to prescription drugs; (II) be designed to maintain the confidentiality and privacy of the pharmacist/patient communication. (ii) In determining whether the area is suitable for confidential patient counseling and designed to maintain the confidentiality and privacy of the pharmacist/patient communication, the board may consider factors such as the following. (I) the proximity of the counseling area to the check-out or cash register area; (II) the volume of pedestrian traffic in and around the counseling area; (III) the presence of walls or other barriers between the counseling area and other areas of the pharmacy; and (IV) any evidence of confidential information being overheard by persons other than the patient or patient's agent or the pharmacist or agents of the pharmacist. (B)-(C) (No change.) (3)-(10) (No change.) (e)-(f) (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 14, 1993. TRD-9333737 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: January 4, 1994 Proposal publication date: June 25, 1993 For further information, please call: (512) 832-0661 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 3. Life, Accident and Health Insurance and Annuities Subchapter G. Plain Language Requirements for Health Benefit Policies 28 TAC sec.3.601, sec.3.602 The State Board of Insurance and the Commissioner of Insurance of the Texas Department of Insurance adopts new sec.3.601 and sec.3.602, without changes to the proposed text as published in the November 12, 1993, issue of the Texas Register (18 TexReg 8337). These sections are necessary to set out the requirements for plain language to be used with health benefit plans as mandated by Insurance Code, Article 26. 43. These sections set out the requirements for plain language for health benefit plans. Section 3.601 contains the purpose, scope, applicability and definitions used in these sections. New section 3.602 provides that health benefit plan certificates, policies, evidences of coverage, endorsements, amendments, applications and riders must be written in plain language in order to be approved by the commissioner of insurance or issued by the health carrier. Section 3.602 also sets out the requirements and the test and methodology of testing for plain language to be used for health benefit plans, certificates, policies, evidences of coverage, endorsements, amendments, applications, and riders. No comments were received regarding adoption of the new sections. The new sections are adopted under Insurance Code, Articles 26.43, 3.42, l. 03A and sec.1.23 of House Bill 1461, 73rd Legislature, Regular Session. Insurance Code, Article 26.43 requires all health benefit plan certificates, policies and riders be written in plain language, describes the statutory requirements for plain language, and requires the commissioner of insurance to prescribe the minimum score on the Flesch reading ease test or an equivalent test selected by the commissioner to achieve the plain language requirement. Insurance code, Article 3.42, contains filing requirements for policies, contracts, certificates and forms subject to that statute and specifically authorizes the board to adopt reasonable rules and regulations as necessary to implement and accomplish the provisions of that statute. Insurance Code, Article 1.03A contains the requirements for rules of general application to be adopted by the commissioner of insurance and sec.1.23 of House Bill 1461, authorizes the promulgation and approval of rules relating to rates, policy forms and endorsements by the State Board of Insurance. 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 15, 1993. TRD-9333695 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: January 5, 1994 Proposal publication date: November 12, 1993 For further information, please call: (512) 463-6327 Subchapter W. Miscellaneous Rules for Group and Individual Accident and Health Insurance 28 TAC sec.3.3602 The State Board of Insurance and the Commissioner of Insurance of the Texas Department of Insurance adopts an amendment to sec.3.3602, without changes to the proposed text as published in the November 12, 1993, issue of the Texas Register (18 TexReg 8339). Section 3.3602 is amended to provide that the section applies only to policies issued, delivered, or renewed prior to January 1, 1994. Conversion or continuation of policies issued, delivered, or renewed after that date will be governed by Subchapter F of this title (relating to Group Health Insurance Mandatory Conversion Privilege). This change is required by the amendments to Insurance Code, Article 3.51-6, sec.1(d)(3), enacted by the 73rd Legislature. The amendment to this section will leave sec.3.3602 in place to govern conversion or continuation of policies issued, delivered, or renewed prior to January 1, 1994. Policies issued, delivered, or renewed after to that date, will be governed by Subchapter F of this title (relating to Group Health Insurance Mandatory Conversion Privilege). No comments were received regarding adoption of the amendment. This amendment is proposed under Insurance Code, Articles 1.03A, 3.42, 3. 51-6 and sec.1.23 of House Bill 1461, 73rd Legislature, Regular Session. Insurance Code, Article 3.51-6, sec.1(d)(3) contains requirements for conversion or continuation privileges for the policies covered by that section. Article 3.51-6 requires the board to issue rules and regulations to establish minimum standards for benefits under conversion policies. Regulations will be promulgated to accomplish that purpose in Subchapter F of this chapter (relating to Group Health Insurance Mandatory Conversion Privilege). Those sections, in accordance with the statutory mandate, will be effective for policies issued, delivered, or renewed on or after January 1, 1994. Consequently this section must be amended to conform to that statute and the rules promulgated as a result of that statute. Insurance Code, Article 3.42, contains filing requirements for policies, contracts, certificates and forms subject to that statute and specifically authorizes the board to adopt reasonable rules and regulations as necessary to implement and accomplish the provisions of that statute. Insurance Code, Article 1.03A, sets forth the requirements for rules of general application to be adopted by the commissioner of insurance. Section 1.23 of House Bill 1461 authorizes the promulgation and approval of rules relating to rates, policy forms and endorsements by the State Board of Insurance. 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 15, 1993. TRD-9333694 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: January 5, 1994 Proposal publication date: November 12, 1993 For further information, please call: (512) 463-6327 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part IX. Commission on Jail Standards Chapter 275. Supervision of Inmates 37 TAC sec.275.2 The Texas Commission on Jail Standards adopts repeal of sec.275.2, concerning Supervision of Inmates, without changes to the proposed text as published in the October 22, 1993, issue of the Texas Register (18 TexReg 7405). Repeal of this rule allows for adoption of a new rule which requires all corrections officers to be properly trained. The repeal functions to allow adoption of a new rule which requires corrections officers be licensed and properly trained. No comments were received regarding adoption of the repeal. The repeal is adopted under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance and operation of county jails. 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 7, 1993. TRD-9333716 Jack E. Crump Executive Director Commission on Jail Standards Effective date: January 5, 1994 Proposal publication date: October 22, 1993 For further information, please call: (512) 463-5505 The Texas Commission on Jail Standards adopts new sec.275.2, concerning Supervision of Inmates, without changes to the proposed text as published in the October 22, 1993, issue of the Texas Register (18 TexReg 7405). The new rule establishes requirements for corrections officers to be licensed by the Texas Commission on Law Enforcement Officer Standards and Education. The new rule functions to ensure corrections officers are properly trained and that they meet the licensing requirements of the Texas Commission on Law Enforcement Officer Standards and Education. No comments were received regarding adoption of the new section. The new rule is adopted under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance and operation of county jails. 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 7, 1993. TRD-9333668 Jack E. Crump Executive Director Commission on Jail Standards Effective date: January 5, 1994 Proposal publication date: October 22, 1993 For further information, please call: (512) 463-5505 Chapter 281. Food Service in County Jails 37 TAC sec.281.3 The Texas Commission on Jail Standards adopts repeal of sec.281.3, concerning Food Service in County Jails, without changes to the as proposed text published in the October 22, 1993 issue of the Texas Register (18 TexReg 7406). Repeal of the rule allows for adoption of a new rule which clarifies requirements for serving balanced meals in county jails. The repeal functions to allow adoption of a new rule which will ensure a balanced diet is served by requiring review of menus by a licensed dietitian. No comments were received regarding adoption of the repeal. The repeal is adopted under Government Code, Chapter 511 which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance and operation of county jails. 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 7, 1993. TRD-9333670 Jack E. Crump Executive Director Commission on Jail Standards Effective date: January 5, 1994 Proposal publication date: October 22, 1993 For further information, please call: (512) 463-5505 37 TAC sec.281.3, sec.281.5 The Texas Commission on Jail Standards adopts new sec.281.3 and amendment of sec.281.5, concerning Food Service in County Jails, with changes to the proposed text as published in the October 22, 1993, issue of the Texas Register (18 TexReg 7406). The new rule and amendment clarify requirements for preparation and serving of food in county jails. The new rule and amendment will function to ensure a balanced diet, approved by a dietitian, is served under staff supervision. Three comments were received. The comment from the Texas State Board of Examiners of Dietitians recommended deletion of the term "nutritionist" due to the fact that some nutritionists may not have adequate training to determine balanced diet requirements. The term "nutritionist" has been deleted. The other two comments were received from individuals representing small counties. The individuals stated their belief that having the menus approved by a dietitian would be burdensome as some of the small counties do not have a dietitian on board. The Texas Department of Health has contacted this agency and has committed to reviewing, at no charge, menus from any county. As this can be accomplished by facsimile or postal service, it is not anticipated counties which do not have a dietitian available will incur any expense. The new rule and amendment are adopted under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance and operation of county jails. sec.281.3. Balanced Diet. Except in emergency situations, meals shall be served in accordance with a written menu approved and reviewed annually for compliance with nationally recognized allowances for basic nutrition by a qualified dietitian. sec.281.5. Staff Supervision. Food shall be prepared and served only under the immediate supervision of a staff member or contract employee. Care shall be taken that hot foods are served reasonably warm and that cold foods are served reasonably cold. Inmates who prepare or serve food should have a food handlers certificate. 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 7, 1993. TRD-9333669 Jack E. Crump Executive Director Commission on Jail Standards Effective date: January 5, 1994 Proposal publication date: October 22, 1993 For further information, please call: (512) 463-5505 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 73. Civil Rights The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.73. 4001, 73.4005, 73.4006, 73.4008, 73.4010, 73.4011, 73.4012, and 73.4101-73. 4115, concerning administrative fraud disqualification hearings and hearing procedure in its Civil Rights chapter, without changes to the proposed text as published in the November 9, 1993, issue of the Texas Register (18 TexReg 8173). The justification for the repeals is to enable DHS to move these rules to its Legal Services chapter. DHS is adopting the rules in Chapter 79 in this issue of the Texas Register. The repeals will function by enabling DHS to adopt rules concerning administrative fraud disqualification hearings in its Legal Services rule chapter. No comments were received regarding adoption of the repeals. Subchapter OO. Administrative Fraud Disqualification Hearings 40 TAC sec.sec.73.4001, 73.4005, 73.4006, 73.4008, 73.4010-73. 4012 The repeals are adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The repeals implement Human Resources Code, sec.33.002(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 15, 1993. TRD-9333696 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1994 Proposal publication date: November 9, 1993 For further information, please call: (512) 450-3765 Subchapter PP. Hearing Procedure 40 TAC sec.sec.73.4101-73.4115 The repeals are adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The repeals implement Human Resources Code, sec.33.002(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 15, 1993. TRD-9333697 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1994 Proposal publication date: November 9, 1993 For further information, please call: (512) 450-3765 Chapter 79. Legal Services Subchapter T. Administrative Fraud Disqualification Hearings 40 TAC sec.sec.79.1901-79.1922 The Texas Department of Human Services (DHS) adopts new sec.sec.79.1901-79. 1922, concerning administrative fraud disqualification hearings, in its Legal Services chapter. New sec.79.1914 is adopted with changes to the proposed text as published in the November 9, 1993, issue of the Texas Register (18 TexReg 8179). New sec.sec.79.1901-79.1913 and 79.1915-79.1922 are adopted without changes to the proposed text, and will not be republished. The justification for the new sections is to move administrative fraud disqualification hearings rules from Chapter 73, Civil Rights, to Chapter 79. DHS believes the rules belong more appropriately in the Legal Services chapter. The repeal of the sections from Chapter 73 is adopted in this issue of the Texas Register. In addition to moving and renumbering the rules, DHS is adopting changes in sec.sec.79.1901, 79.1911, 79.1914, 79.1915, 79.1917, 79.1918, and 79.1919 (old sec.sec.73.4001, 73.4104, 73.4107, 73.4108, 73.4110, 73.4111, and 73.4112) which make these sections consistent with amendments DHS adopted in the May 12, 1992, issue of the Texas Register (17 TexReg 3477). Those amendments implemented federal regulations for Aid to Families with Dependent Children (AFDC) program administrative disqualification hearings and made the process the same as established procedures for Food Stamp program intentional program violations. In addition, DHS has added provisions of federal waivers in sec.sec.79. 1905(a), 79.1906, 79.1912(a)-(c), 79.1913, 79.1914(b), 79.1916(b), and 79.1918. The new sections will function by properly placing DHS's administrative disqualification hearings rules in Chapter 79, ensuring consistency in AFDC and Food Stamp program requirements, and implementing federal waiver requirements. No comments were received regarding adoption of the new sections; however, DHS is adopting sec.79.1914(a) with a change to make the subsection applicable to both AFDC and Food Stamps. The new sections are 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. The new sections implement Human Resources Code, sec.33.002(c). sec.79.1914. Recessing the Hearing. (a) If the household member, the investigator, or the hearing officer requests to have the Food Stamp or Aid to Families with Dependent Children (AFDC) record at the hearing, the hearing may be recessed to obtain the record. The household member may question or refute any additional testimony or evidence after a recess. (b) The hearing officer may order a recess to request and receive additional testimony or evidence. He advises the household member or his representative of the reason for the recess and the nature of the additional requested information. The household member may question or refute any additional testimony or evidence after a recess. 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 15, 1993. TRD-9333698 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1994 Proposal publication date: November 9, 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 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 Texas Department of Insurance at a public meeting held at 2:00 p.m. on December 13, 1993, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street, Austin, Texas, adopted the surety bond form filed by the Texas Department of Health on behalf of the State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments entitled "Fitting and Dispensing of Hearing Instruments Surety Bond," form number FDHI-1193. The form was filed in the Chief Clerk's Office on November 23, 1993. The Fitting and Dispensing of Hearing Instruments Surety Bond (Bond) is required of fitters and dispensers of hearing instruments in accordance with Senate Bill 953 passed in the 73rd Legislative Session. The Bond is conditioned on the fitter's or dispenser's payment of all: taxes and contributions due to the State of Texas and its political subdivisions; and, judgments rendered as a result of negligently or improperly dispensing hearing instruments or for breaching a contract relating to the dispensing of hearing instruments. The limit of the Bond is set at $10,000. The full text of the surety bond form filing (Reference Number O-1193-30), was published in the December 3, 1993, issue of the Texas Register (18 TexReg 8870). The Texas Department of Insurance has jurisdiction over this matter pursuant to the Insurance Code, Articles 5.13, 5.15 and 5.97. The full text of the surety bond form entitled Fitting and Dispensing of Hearing Instruments Surety Bond, as adopted by the Texas Department of Insurance is filed with the Chief Clerk under (Reference Number O-1193-30) and is incorporated by reference by Commissioner Order Number 93-1197. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative Procedure 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 14, 1993. TRD-9333662 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: January 6, 1994 Proposed publication date: December 3, 1993 For further information, please call: (512) 463-6328