ADOPTED RULES 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 IV. Office of the Secretary of State Chapter 80. Unincorporated Business Entities 1 TAC sec.sec.80.1-80.4 The Office of the Secretary of State adopts amendments to sec.sec.80.1-80.4, without changes to the proposed text as published in the December 14, 1993, issue of the Texas Register (18 TexReg 9249). The amendments are necessary to implement legislative changes contained in House Bill Number 273, 73rd Legislature, Session, Regular Session, which adopted the Texas Revised Partnership Act, Texas Civil Statutes, Article 6132a. That bill, effective January 1, 1994, set forth in sec.3.08 the requirements and procedures under which a limited liability partnership may register with the secretary of state. The amendments will implement sec.3.08 of the Texas Revised Partnership Act which provides that partnerships may register with the secretary of state to become registered limited liability partnerships. No comments were received regarding adoption of the sections. The amendments are adopted under Texas Civil Statutes, Article 6252-13, and the Government Code, sec.405.031, which give the secretary of state authority to adopt rules of practice reasonably necessary to carry out the ministerial duties of the office. 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 January 19, 1994. TRD-9434908 Audrey Selden Assistant Secretary of State Office of the Secretary of State Effective date: February 9, 1994 Proposal publication date: December 14, 1993 For further information, please call: (512) 463-5701 TITLE 22. EXAMINING BOARDS Part XXIII. Texas Real Estate Commission Chapter 543. Rules Relating to the Provisions of the Texas Timeshare Act 22 TAC sec.543.4 The Texas Real Estate Commission adopts an amendment to sec.543.4, concerning forms used to register or amend the registration of a timeshare property, without changes to the proposed text as published in the December 7, 1993, issue of the Texas Register (18 TexReg 9044). The amendment adopts by reference revised forms used by timeshare developers to register or amend the registration of a timeshare property. Adoption of the amendment is necessary for the Texas Real Estate Commission to obtain additional information about timeshare properties and their developers and to make the developers aware of state laws governing promotional offerings. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Property Code, sec.221.024, which authorizes the Texas Real Estate Commission to prescribe and publish forms necessary to carry out the provisions of the law. 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 January 20, 1994. TRD-9435032 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: February 11, 1994 Proposal publication date: December 7, 1993 For further information, please call: (512) 465-3900 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health (Editor's Note: Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session, 1991, as amended by Chapter 747, sec.2, Acts of the 73rd Legislature, Regular Session, 1993, provided for the transfer of certain programs from the Texas Department of Human Services to the Texas Department of Health effective September 1, 1993. The Texas Register is administratively transferring the following rules listed in the table below from Title 40., Part I. Texas Department of Human Services to Title 25. Part I. Texas Department of Health. The Table lists the old rule number and the new rule number that corresponds to them.) TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 401. System Administration Subchapter A. Advisory Committees 25 TAC sec.sec.401.1-401.22, 401.40 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.sec.401.1-401.22 and 401.40. Sections 401.5-401.7 are adopted with changes to the proposed text as published in the September 17, 1993, issue of the Texas Register (18 TexReg 6252). Sections 401.1-401.4, 401. 8-401.22, and 401.40 are adopted without changes and will not be republished. Section 401.23 is being withdrawn in this issue. The new subchapter implements provisions of Senate Bill 383 (73rd Legislature), which requires the department to outline in rule form the purpose, tasks, and duration of each of its advisory committees. In addition to referencing the various committees, the new subchapter outlines reporting and membership requirements for the advisory committees. The term "medical" has been replaced with "health care" in sec.401.5 to better reflect the committee's purpose. The title of sec.401.6 has been changed to "Mental Health Planning and Advisory Council" to reflect the correct title of the advisory group, and corresponding changes have been made throughout the section. The title of sec.401.7 has been changed to "Mental Retardation Planning and Advisory Council" to reflect the correct title of the advisory group, and corresponding changes have been made throughout the section. Comments on the proposed subchapter were received from TEXAMI and a private citizen. One commenter suggested that the transfer of the department's abuse investigation function to the Texas Department of Protective and Regulatory Services (TDPRS) significantly reduced the responsibilities of the public responsibility committee. The commenter suggested that the committee should be abolished. The department responds that the Persons with Mental Retardation Act (Texas Health and Safety Code, Title 7, Subtitle D) mandates the existence of public responsibility committees in mental retardation facilities, and the department has elected to extend this mandate to mental health facilities. In addition to its work with TDPRS in investigating allegations of abuse and neglect, the committee has numerous additional responsibilities which preclude its abolition. Another commenter noted that the "Mental Health Planning Advisory Committee" reference in sec.401.7 was actually called the "Mental Health Planning and Advisory Council." The department agrees, and appropriate changes have been made. The new sections are adopted under the Texas Health and Safety Code, sec.532. 015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. sec.401.5. Medical Advisory Committee. (a) The purpose of the Medical Advisory Committee is to aid, counsel, and assist the board regarding health care issues. (b) Tasks of the Medical Advisory Committee include: (1) making suggestions to the board concerning the health care needs of individuals receiving mental health and mental retardation services; (2) making suggestions and recommendations to the board concerning the overall quality of care for individuals receiving mental health and mental retardation services; (3) responding to specific requests from the board for help and information; (4) alerting the board to problems and developments throughout the state and facilitating communications and cooperation among agencies, organizations, professions, and the public. (c) This advisory committee shall be abolished on January 1, 1997, unless reauthorized. sec.401.6. Mental Health Planning and Advisory Council. (a) The purpose of the Mental Health Planning and Advisory Council is to provide advice on issues and initiatives regarding mental health services. (b) Tasks of the Mental Health Planning and Advisory Council include: (1) submitting recommendations for strategic planning; (2) developing recommendations for improved services; and (3) developing recommendations for policy revisions. (c) This advisory committee shall be abolished on January 1, 1997, unless reauthorized. sec.401.7. Mental Retardation Planning and Advisory Council. (a) The purpose of the Mental Retardation Planning and Advisory Council is to provide advice on issues and initiatives regarding mental retardation services. (b) Tasks of the Mental Retardation Planning and Advisory Council include: (1) submitting recommendations for strategic planning; (2) developing recommendations for improved services; and (3) developing recommendations for policy revisions. (c) This advisory committee shall be abolished on January 1, 1997, unless reauthorized. 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 January 21, 1994. TRD-9435057 Ann K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: February 11, 1994 Proposal publication date: September 17, 1993 For further information, please call: (512) 206-4516 Subchapter G. Community Mental Health and Mental Retardation Centers 25 TAC sec.401.464 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.401.464 of Chapter 401, Subchapter G, concerning community mental health and mental retardation centers, with changes to the proposed text as published in the December 3, 1993, issue of the Texas Register (18 TexReg 8757) with an editor's note in the November 26, 1993, issue. Language is changed throughout the section to clarify the related responsibilities between the local MHMR authority and its contractors. Language is added to subsection (e) clarifying that the written notification refers to that mentioned in subsection (d). Language is added to subsection (g) (3) allowing the review to be conducted by more than one individual. Language is added to subsection (h) clarifying that a written response is required and a verbal explanation is encouraged. Written comments were received from Denton County MHMR Center, Denton; MHMR Services for the Concho Valley, San Angelo; and a private citizen. One commenter suggested including a list of circumstances which would result in the involuntary reduction or termination of services but would not be appealable (e.g., the grant or source of funding of the service had run out and replacement funding was not available to continue the service; the center had been unsuccessful in recruiting qualified staff necessary to provide the service; or the department canceled its contract with the center). The department responds that any of the circumstances the commenter mentioned are acceptable reasons for denying, involuntarily reducing, or terminating services and, following a review, the local MHMR authority could decide to uphold the original decision. However, all situations are appealable and, if appealed, subject to review. One commenter emphasized that all communication should be in writing and not permit a loophole which would allow only a telephone call. The department responds that the rule requires all decisions to be made in writing; a verbal explanation is also encouraged. Language has been modified for clarification. The same commenter mentioned that there was no allowance for interested parties to receive copies of statistical numbers of complaints made. The department responds that while it might be of interest to have statistics on the number of complaints, the primary purpose of the rule is to provide a complaint process. The commenter expressed concern that "unless you are very much a savvy consumer, you will not know who to make your complaint to. There are just too many ways to make a complaint in the TXMHMR system." The commenter wrote that he and his fellow consumers are "never told that if we do not agree with that resolution, if we do not agree with how it is solved, that we have the right to appeal it to another level and get maybe a different hearing or a different viewpoint on it." The commenter felt that the appeal process is very difficult for the consumer to access and requested that it be made easier to access. The department responds that subsection (a) requires local MHMR authorities and their contractors to take steps to assure that consumers have a method to express their concerns or dissatisfaction, are assisted to do so in a constructive way, and have their concerns or dissatisfaction addressed through a review process. Additionally, subsection (c)(1) requires consumers to be provided notification of an "easily understood" process for requesting a review, which would logically include information about how to make a complaint and who would accept the complaint. Also, subsection (c) requires the local MHMR authority to notify its consumers in writing of its policy for addressing consumers' concerns or dissatisfaction upon admission into services and annually thereafter. In subsection (a)(2) the local MHMR authority is required to assist consumers in expressing their concerns or dissatisfaction in a constructive way. This would make the appeals process easy to access. Before this rule became effective, complaints were generally made through the client rights officer or the public responsibility committee. A local MHMR authority may still utilize those avenues provided its process is in compliance with this rule and is adequately communicated to all of its consumers. The same consumer also requested that suitable timeframes be required for the appeals process. The department responds that subsection (g) outlines the required time constraints for acting on the appeal and for notifying the consumer of the resolution decision. The commenter wanted to know what the penalty was when a local MHMR authority did not comply with the rule. The department responds that a "penalty" for non- compliance is not included in the rule; however, general rule compliance is monitored through routine visits by department staff; a plan of improvement is required and monitored when deficiencies are identified. One commenter felt that subsections (a)-(c) were already mandated in the community services standards and other rules, and are being addressed via the role and responsibilities of the consumer rights officer and the public responsibility committee. The commenter also mentioned that the rules failed to clearly differentiate a complaint regarding quality of service from a complaint regarding type or dose of service. The department responds that while subsections (a)-(c) may be vaguely similar to information contained in other rules this rule does not preclude the client rights officer or the public responsibility committee from performing the duties of the appeals process. It was never the intent to differentiate between complaints of quality and those of type or dose of service; all concerns and dissatisfaction should be reviewed through this appeals process. The same commenter wanted to know if subsection (c)(1)-(4) was the same as subsection (e)(1)-(4). The department responds that subsection (c)(1)-(4) relates to the written notification of the local MHMR authority's policy upon admission and annually thereafter, while subsection (e)(1)-(4) relates to the written notification described in subsection (d). Clarifying language is added. The same commenter expressed concern that the rule appeared to encompass decisions regarding denial of services due to the consumer's ineligibility for inclusion as a member of a priority population and/or ineligibility for a particular service (i.e., case management). The commenter felt that if that was the intent of the rule then his organization would be "gridlocked" because there were virtually no alternative, low cost public sector services in the area. The department responds that it is not the intent of the rule to provide written notification to persons who were denied services because they were not in the priority population. However, if a person is believed to be in the priority population and then at the conclusion of an eligibility assessment the person is denied services because he/she is found to not be in the priority population, then that person should receive written notification of denial of services. It would seem that if there is enough time to conduct an assessment of the person then there should be enough time to provide that person with written notification of denial of services. The same commenter felt that the rule appeared to ignore or overrule decisions arrived at by IDT service planning, which normally includes the consumer and parent (guardian) and which are typically consensus-based decisions. The commenter wrote that the rule injects an unnecessary level of adversarial formality into a process which was explicitly designed to be a partnership. The department responds that if true consensus is reached, then no complaint, concern, or dissatisfaction would result. If consensus is not reached, then this rule provides the consumer an opportunity to request a review. The same commenter felt the rule made sense from a client rights perspective, but at the same time assumed that the local MHMR authority had a deep bench of persons who were not privy to the original decision and who would thereby be appropriate persons to conduct a review. The commenter also wrote that the net effect of the rule would disempower treatment teams and providers from making difficult or controversial decisions out of fear that they will be overruled by a supervisor on appeal, thus robbing the team of its effectiveness. The department understands that for small MHMR authorities, having enough individuals who are not involved in the initial decision to conduct reviews could be a potential problem; however, in the interest of fairness and to follow acceptable steps of due process, this procedure is necessary to effectively address complaints, concerns, and dissatisfaction. This rule does not preclude the client rights officer or the public responsibility committee from performing the duties of the appeals process. It is not the intent of the rule to question the judgment of the IDT; if an IDT is functioning effectively, appeals or overturned decisions should be few in number. A review should include all information relevant to the matter. It is the local MHMR authority's responsibility to develop procedures which ensure that appropriate and qualified individuals conduct reviews and that reviews include the consideration of all relevant information. The new section is adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. sec.401.464. Notification and Appeals Process. (a) The TXMHMR service system is dedicated to providing mental health and mental retardation services/supports which are viewed as satisfactory by persons receiving those services/supports. Therefore, local MHMR authorities and their contractors shall take steps to assure that these persons: (1) have a method to express their concerns or dissatisfaction; (2) are assisted to do so in a constructive way; and (3) have their concerns or dissatisfaction addressed through a review process. (b) A request to review decisions described in this section may be made by the person requesting or receiving services/supports, the person's legal representative, or any other individual with the person's consent. (c) At the time of admission into services and on an annual basis thereafter, the local MHMR authority and its contractors shall provide to persons who receive services/supports written notification of the local MHMR authority or its contractor's policy for addressing concerns or dissatisfaction with services/supports. The notification shall explain: (1) an easily understood process for persons to request a review of their concerns or dissatisfaction by the local MHMR authority or its contractor, whichever is appropriate; (2) how the person may receive assistance in requesting the review; (3) the timeframes for the review; and (4) the method by which the person is informed of the outcome of that review. (d) Local MHMR authorities and their contractors shall notify persons in writing of the following decisions and of the process to appeal by requesting a review of those decisions: (1) a decision to deny the person services/supports at the conclusion of a local MHMR authority's procedure which determines whether the person meets the criteria for the priority population; and (2) a decision to terminate services/supports and follow-along from the local MHMR authority or its contractor, if appropriate. (e) The written notification referred to in subsection (d) of this section must: (1) be given or mailed to the person within ten working days of the date the decision was made; (2) state the reason for the decision; (3) explain that the person may contact either the local MHMR authority or its contractor, whichever is appropriate, within 30 days of receipt of notification if dissatisfied with the decision and request that the decision be reviewed in accordance with subsection (g) of this section; and (4) include name(s), phone number(s) and address(es) of one or more accessible staff to contact during office hours. (f) If a person believes that the local MHMR authority or its contractor has made a decision to involuntarily reduce services by changing the amount, duration, or scope of services/supports provided and is dissatisfied with that decision, then the person may request in writing that the decision be reviewed in accordance with subsection (g) of this section. (g) The review by the local MHMR authority or its contractor shall: (1) begin within ten working days of receipt of the request for a review and be completed within ten working days of the time it begins unless an extension is granted by the CEO of the local MHMR authority or its contractor, whichever is appropriate; (2) begin immediately upon receipt of the request and be completed within five working days if the decision is related to a crisis service; (3) be conducted by an individual(s) who was not involved in the initial decision; (4) include a review of the original decision which led to the person's dissatisfaction; (5) result in a decision to uphold, reverse, or modify the original decision; and (6) provide the person an opportunity to express his or her concerns in person or by telephone to the individual reviewing the decision. The review shall also allow the person to: (A) have a representative talk with the reviewer, or (B) submit his or her concerns in writing, on tape, or in some other fashion. (h) Following a review, either the local MHMR authority or its contractor, whichever is appropriate, shall explain to the person in writing and also in person or by telephone, if requested, the action it will take or, if no action will be taken, why it will not change the decision or believes such action would not be in the person's best interest. This is the final step in the review process. (i) The notification and review process described in this section: (1) is applicable only to services/supports funded by TXMHMR and provided or contracted for by its local MHMR authorities; (2) does not preclude a person's right to reviews, appeals, or other actions that accompany other funds administered through a local MHMR authority or its contractors, or to other appeals processes provided for by other state and federal laws, e.g., Texas Health and Safety Code, Title 7, Chapter 593 (Persons with Mental Retardation Act); 42 United States Code, sec.1396 (Medicaid statute); and Texas Human Resources Code, Chapter 73 (Texas Administrative Code, Title 25, Chapter 621), Early Childhood Intervention programs as funded by the Texas Interagency Council for Early Childhood Intervention. 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 January 21, 1994. TRD-9435065 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: February 11, 1994 Proposal publication date: November 26, 1993 For further information, please call: (512) 206-4670 Subchapter H. Designation as Single Portal Authority 25 TAC sec.sec.401.501-401.511 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeal of sec.sec.401.501-401.511 of this title, concerning the designation as single portal authority without changes to the proposed text as published in the December 7, 1993, issue of the Texas Register (18 TexReg 9081). Senate Bill 160 of the 73rd Texas Legislature deleted the requirement for a Single Portal Review Committee, but retained the concept of single portal. The procedure for designating a mental health authority as a single portal authority has been included in the adoption of Chapter 402, Subchapter A of this title, concerning admissions, transfers, absences, and discharges mental health facilities, which is contemporaneously adopted in this issue of the Texas Register. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. 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 January 21, 1994. TRD-9435068 Ann K. Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: February 11, 1994 Proposal publication date: December 7, 1993 For further information, please call: (512) 206-4670 Subchapter J. Licensure of Private Psychiatric Hospitals 25 TAC sec.sec.401.581-401.593 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.sec.401.581-401.593, concerning licensure of private psychiatric hospitals. The purpose of the repeals is to allow for the contemporaneous adoption of a new subchapter which implements the provisions of Senate Bills 205, 207, and 210 of the 73rd Texas Legislature. The new subchapter updates and clarifies requirements relating to standards of care and treatment in psychiatric hospitals. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Health and Safety Code, sec.532.015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. 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 January 21, 1994. TRD-9435062 Anne K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: February 11, 1994 Proposal publication date: December 10, 1993 For further information, please call: (512) 206-4516 Subchapter J. Standards of Care and Treatment in Psychiatric Hospitals 25 TAC sec.sec.401.581-401.583, 401.587-401.590, 401. 592, 401.593 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new 401.581-401.583, 401.587-401.590, 401.592, and 401.593, concerning standards of care and treatment in psychiatric hospitals. Sections 401.582, 401.583, 401.587, and 401.588 are adopted with changes to the proposed text as published in the December 10, 1993, issue of the Texas Register (18 TexReg 9162). Sections 401.581, 401.589, 401.590, 401.592, and 401.593 are adopted without changes and will not be republished. The new sections are published contemporaneously in this issue of the Texas Register with the adoption of the repeal of sec.sec.401.581-401.593, which the new sections replace. The new sections implement the provisions of Senate Bills 205, 207, and 210 of the 73rd Texas Legislature. Senate Bill 205 mandates requirements concerning intake, assessment, and admission; transfer; and advertising and marketing activities. Senate Bill 207 describes requirements for obtaining informed consent to treatment with psychoactive medication and the confidential communication of patient records. Senate Bill 210 transfers licensure authority for private psychiatric hospitals to the Texas Department of Health; at the same time, it expands TXMHMR's regulatory authority to include not only private psychiatric hospitals licensed under Chapter 577 of the Texas Health and Safety Code, but also hospitals providing inpatient mental health services that are licensed by the Texas Department of Health under Chapter 241 of the Texas Health and Safety Code. Senate Bill 210 also mandates that standards of care and treatment in private psychiatric facilities not be less restrictive than those in public mental hospitals. Section 401.582(3) is revised to clarify that persons contracting with or otherwise providing services at psychiatric hospitals must comply with the subchapter if they provide services to inpatients. The definition of "psychiatric hospital" has been modified to add the term "generally" to the phrase "for use beyond 24 hours." The definition of "qualified mental health professional" has been revised to delete chemical dependency counselors and licensed marriage and family therapist. The definition of "special treatment procedures" has been modified to delete reference to "maintenance drugs with abuse potential." Section 401.587(b) has been revised on adoption to include language that clarifies that when laws and rules conflict with standards, laws and rules prevail. Paragraph (1) of the same subsection has been revised on adoption by the addition of reference to standards contained in the Accreditation Manual for Mental Health, Chemical Dependency, Mental Retardation/Developmental Disabilities Services governing therapeutic environment. The standards in this chapter address important areas of patient care and treatment such as handicapped access, family/visitor access, privacy, adequate environment, and mail and other privileges. These issues are not covered in the Accreditation Manual for Hospitals. Paragraph (2) has been revised on adoption to reference the governing body procedures of the Accreditation Manual for Hospitals. This issue is not addressed in the Accreditation Manual for Mental Health, Chemical Dependency, Mental Retardation/Developmental Disabilities Services. Minor clarifying language is added in sec.401.587(c)(2), (c)(2)(B), and (c) (3)(A)(iii)(II). Clause (c)(3)(B)(i) has been modified to indicate that the head of the facility may designate a staff person to accept patients for emergency detention. Section 401.587(c)(5) has been revised on adoption to delete the word "defined" as redundant as it pertains to laws and rules governing reportable conduct. Reportable conduct described in laws and rules would be defined in the laws and rules. Language is added that emphasizes that psychiatric hospitals are required to post a notice concerning duty to report reportable conduct as required in the Health and Safety Code, Chapter 161. Language has been added as subparagraph (C) of the same paragraph that states the requirement contained in the Health and Safety Code, Chapter 161, for psychiatric hospitals to post notice that employees and non-employees shall not be subject to discrimination or to retaliatory action for reporting violations of applicable laws and rules. The language further makes a distinction between good faith and spurious allegations. Section 401.587(c)(6) has been revised on adoption to clarify that the physician is not solely responsible for the development and delivery of the continuing care plan; language provides that the physician is ultimately responsible, but allows for other members of the treatment team to participate in the creation of the continuing care plan. Language in sec.401.587(c)(7) has been expanded to clarify a number of questions related to the transfer of patients. Section 401.587(c)(8)(B) has been revised on adoption to delete reference to "other professionally recognized and accepted standards of care" and to specific areas of patient care and treatment. Reference is made to the requirement for psychiatric hospitals to adopt policies and procedures that are not less restrictive than those of the department in areas of patient care and treatment. A list of rules is provided in Exhibit A. Minor wording changes were made to sec.401.587(c)(9). In sec.401.588, subsections (c)-(g) have been redesignated as (b)-(f) to correct a typographical error. Section 401.588(c)(2)(now designated as sec.401.588(b)(2)) has been revised to delete reference to a standard format approved by the department. The department deems the required information listed in subparagraphs (A)-(F) of that section to be the required format for information. At a public hearing on December 17, 1993, in Austin, Texas, written and/or oral testimony concerning the new sections was provided by representatives of the National Association of Psychiatric Survivors, Austin; Scott and White Hospital, Temple; Citizens Commission on Human Rights, Austin; Texas Association of Mental Health Consumers; and the Texas Nurses Association. Written comments were received from Shoal Creek Hospital, Austin; Charter Behavioral Healthcare Systems of Austin; the Pavilion, Amarillo; and a physician. A commenter noted that compatibility between requirements of the Texas Commission on Alcohol and Drug Abuse (TCADA) and the TXMHMR would facilitate effective and efficient provision of services at hospitals providing a full range of mental health and chemical dependency programs. The department agrees that compatibility between TXMHMR and TCADA requirements would be helpful, and notes that basic requirements outlined in Senate Bills 205, 207, and 210 generally promote such compatibility. However, the fact that each agency adopts separate rules will, inevitably, result in some variation. The department suggests that the commenter identify specific instances where rule changes would be appropriate and submit those recommendations to the appropriate agency for consideration in future rule actions. The same commenter also noted that any assistance in administering programs as mandated would be appreciated. The commenter suggested translations of key documents as an example. The department agrees, and has developed a version of the Patient's Bill of Rights in Spanish for distribution. Additional translations and other means of assistance will be developed as appropriate. With reference to sec.401.503, concerning the definition of "mental health services provider," a commenter requested that registered nurses be included in the listing of professions meeting this definition. The commenter noted that RNs provide the types of services described in the rules, and that RNs who do engage in sexual exploitation should be reportable like any other health care professional. The commenter noted that people are more likely to read the rules than to read the laws, e.g., the Nurse Practice Act, and for this reason it would be additionally helpful. The department agrees, and registered nurses have been added to the list of professionals in the definition for "mental health services provider." Concerning the definition of "psychoactive medication," a commenter recommended revising the definition to delete reference to "psychosis or other severe" mental disorder, to read, "A medication prescribed for the treatment of symptoms of mental or emotional disorders." The department responds that the definition is taken directly from Senate Bill 207 (73rd Legislature). Concerning the definition of "sexual exploitation" in the same section, a commenter suggested that obtaining the sexual history of a patient within the standards of accepted practice would occur before it was known that there was a sexual or marital dysfunction or problem. The commenter expressed concern that the mental health provider would therefore be in violation of the law if there were no sexual or marital dysfunction. The commenter suggested deleting the phrase, "while treating a sexual or marital dysfunction." The department responds that the definition is taken directly from Senate Bill 210 of the 73rd Texas Legislature. Concerning the same section, a commenter recommended that the phrase, "while treating a sexual or marital dysfunction" be revised to "while treating a suspected sexual or marital dysfunction." The department responds that the addition of the word "suspected" is consistent with legislative intent, and language has been revised. Regarding sec.401.587(c)(3)(A)(i), which requires a physician's signed order for admission of a patient, a commenter questioned whether this requirement is realistic. The commenter posed the same question concerning the requirement for a written statement in the patient's record by a physician for individuals admitted pursuant to emergency detention, as described in sec.401.587(c)(3)(B). The department responds that the requirements are based on statutory requirements. Also with reference to the requirement for a physician to be involved in the admission of patients, a physician commenter expressed support for this provision. Concerning sec.401.587(b)(1), a commenter requested that qualifying terms be added to the sentence, "For purposes of licensure, psychiatric hospitals, other than those operated by community centers, shall be in substantial compliance with inpatient standards set forth by the Joint Commission on Accreditation of Healthcare Organizations; that is, the standards for inpatient settings in the current edition of the Accreditation Manual for Hospitals." The commenter suggested that the statement be qualified as follows, "and shall not be less restrictive than standards promulgated by TXMHMR for state facilities in accordance with S.B. 205. Departmental standards shall apply to; (A) special treatment procedures...." The same commenter requested similar clarification for subsection (b)(2) of the section. The department responds that general language has been added to the section to indicate that services in psychiatric hospitals shall be provided in compliance with standards that are not less restrictive than those required for patient care and treatment in state hospitals under the rules of the department. With reference to sec.401.587(c)(3)(A)(ii) and (B)(i), a commenter requested clarification around an apparent difference in procedure, i.e., that the rules provide that the head of the facility may appoint a designee to accept voluntary patients, but that no provision is made for the head of the facility to appoint a designee to accept patients on an emergency detention basis. The department responds that language has been added permitting the head of the facility to appoint a designee for purposes of accepting patients on emergency detention. Concerning subsection (c)(3)(A)iii)III) of the same section, a commenter requested that the following language be added: "If a person requests release from a facility during the 72-hour assessment period, that person shall be released or proceedings begun for involuntary commitment within 24 hours of the request for release in accordance with other provisions of law." The department responds that the 72-hour period is not intended to describe a maximum "assessment period," but to indicate that the physician examination and other assessment must be relatively current. A patient who has not been admitted for inpatient services is free to leave the premises of the hospital at any time. After a patient has been admitted to a hospital on a voluntary basis, that person must be released within four (not 24) hours of request unless the physician has reason to believe and can demonstrate that the person meets the criteria for involuntary commitment. In the same section, concerning subsection (c)(5) on allegations of sexual exploitation, a commenter noted that while reporting patient allegations to the prosecuting attorney would seem appropriate, it does not seem reasonable that state licensing boards should be contacted at the allegation stage of an investigation. The commenter suggested that it would be more appropriate to report allegations to licensing boards if and when the allegation is confirmed. The department responds that the requirement to report allegations is statutory and is found in Senate Bill 210 of the 73rd Texas Legislature. Also concerning subsection (c)(5)(B)(i), a commenter noted that the process seems overly involved. The department responds that the process is statutorily mandated. Concerning subsection (c)(5) generally, a commenter suggested that the requirement to report allegations of sexual exploitation to the prosecuting attorney should be expanded to include all forms of conduct referenced in the paragraph. The commenter also suggested requiring that the allegation be reported to the district attorney and the county attorney. The department responds that the reporting requirements as identified in the rule reflect statutory requirements. Two commenters called for the addition of provisions that enact the sections of Senate Bill 210 dealing with whistleblower protection. The department responds that language has been added. Also in the section, concerning subsection (c)(6) on continuing care plans, a commenter questioned whether it is reasonable, in an era of team treatment, to specifically require that the treating physician "prepare the continuing care plan for a patient to be discharged." The commenter noted that, even more unrealistic, the rule requires that "the physician shall deliver the plan to a community center or other provider in the county where the patient resides.... " The commenter suggested that if these requirements are to be met under the general supervision of the physician, the rule should state this explicitly. The department has clarified the language to more accurately reflect the role of the physician. Another commenter asked for clarification about the continuing care plan. The department responds that reference is made in sec.401.587(c)(8)(B) to the requirement for psychiatric hospitals to adopt policies and procedures that are not less restrictive than those of the department in areas of patient care and treatment. A list of rules is provided in Exhibit A, which includes reference to sec.402.59 of Chapter 402, Subchapter B (concerning Continuity of Services- Mental Health). This section includes guidelines addressing information to be included in a continuing care plan. A commenter noted that sec.401.587(c)(8)(B) is considered vague by medical staff of one psychiatric hospital and should be deleted because it does not say anything, or alternatively, the language should be made more specific. Two other commenters also objected to the provision (i.e., reference to "other professionally recognized and accepted standards of care") because it could be interpreted to say that the standards of the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) could be followed in lieu of TXMHMR rules. Given that TXMHMR rules are more stringent in certain areas of practice, such as those dealing with special treatment procedures (including ECT), the commenters were concerned that hospitals could elect to follow a less restrictive standard of care. The department responds that in terms of compliance, hospitals are bound by federal and state law as well as administrative law (rules) and that in the event of any conflict with the standards of JCAHO, law prevails. Language in this section has been extensively rewritten in response to a number of comments. Concerning the same paragraph, two commenters suggested that the department state that the policies and procedures of the hospital be no less restrictive than those found in TXMHMR rules governing the same matters. One commenter suggested that the department reference the provisions of Senate Bill 210 as it affects both rules and emergency rules promulgated by the department (i.e., that standards of care in psychiatric hospitals be not less restrictive than standards for state hospitals). One commenter noted the civil rights implications and the clear legislative intent of Senate Bill 210 require that there be an equivalent standard of care in public and private settings. The department responds that language has been revised. A commenter requested that the department add a reference to its rules governing behavior therapy for application in psychiatric hospitals. The commenter noted that aversive treatments should be required to be approved by a behavior therapy committee. The department responds that language in the subsection has been rewritten to take into account all areas of patient care and treatment, including behavior therapy. A commenter requested that the department change the reference to Chapter 405, Subchapter FF at sec.401.587 (c)(8)(A)(iii) so that psychiatric hospitals are required to fully comply with the rules. The department responds that sec.401.588 is devoted to the treatment of this issue in psychiatric hospitals. Senate Bill 207, on which the requirements are based, does not provide patients who are not funded by the state access to the judicial order process. The outlining of this process is the most significant difference between Chapter 405, Subchapter FF, and sec.401.588. As an example for the potential for confusion between rules and standards, three commenters noted that JCAHO provides standards related to psychosurgery, yet TXMHMR apparently does not permit psychosurgery; the commenter called for an explicit prohibition of psychosurgery to avert any confusion. The department responds that this procedure is reportable on the ECT form and is the type of treatment that would be appropriately considered by the Treatment Methods Advisory Committee appointed by the board pursuant to Senate Bill 210. Concerning sec.401.587(c)(10) of the section, which requires hospitals to comply with the Treatment Facilities Marketing Practices Act, a commenter requested that language be added referencing the requirement of Senate Bill 210 that standards for care and treatment in psychiatric hospitals be not less restrictive than those in state hospitals. The department does not intend to adopt rules governing fair marketing practices for state hospitals because the related provisions of Senate Bill 205 do not apply in this setting. Also concerning subsection (c)(10) of this section, a commenter noted that Senate Bill 210 also provides an exemption for hospital districts. The department agrees, and language has been revised. With reference to sec.401.588, relating to informed consent to treatment with psychoactive medication, a commenter called for the department to cite a reputable medical guide to medications, such as U.S. Pharmacopoeia Dispensing Index or synopsis, to be used as the basis for the information given in the consent process. The department responds that a task force appointed pursuant to Senate Bill 210 is making recommendations to the Texas Board of Mental Health and Mental Retardation concerning information to be given to patients. Psychiatric hospitals will be notified of the board action with respect to the recommendations and will be required to comply with the policy the board adopts. A commenter noted that sec.401.588 did not include a subsection (b), and asked if a section was missing. The department responds that the lack of a subsection (b) is a typographical error; sections (c)-(g) have been redesignated (b)-(f) to remedy the situation. With regard to subsections (c)(2)-(g) (redesignated as subsections (b)(2) -(f)) of sec.401.588, concerning consent to treatment with psychoactive medication, a commenter questioned reference to the "standard format" for obtaining consent. The commenter questioned whether the format is available and whether the format is needed. The department responds the requirement has been deleted as unnecessary. Psychiatric hospitals will be required to provide information as required in this section and as recommended by the board-appointed task force on information to be given to patients about prescription medications. With reference to sec.401.588(a)(4), a commenter requested that the right to seek a judicial order to require patients who refuse medication to receive medication without consent be extended to psychiatric hospital patients under the "not less restrictive than" language of Senate Bill 210. The department responds that the judicial order is not available to individuals in psychiatric hospitals unless they are committed under the Mental Health Code and their care is funded by the state directly or indirectly through contract. The general "not less restrictive than" language of Senate Bill 210 does not apply in this specific context; the provisions of sec.401.588 very closely track the provisions of Senate Bill 207, which address consent to treatment issues in all settings, including those that are not state hospitals. Regarding subsection (c)(2)(D) (redesignated as subsection (b)(2)(D)), which addresses probable clinically significant side effects and risks associated with psychoactive medication, a commenter requested that the provision of the rule require warnings on tardive dyskinesia as recommended by the American Psychiatric Association task force on tardive dyskinesia. The department responds that side effects and risks will be addressed in keeping with the recommendations of the board-appointed task force on prescriptions medications that was constituted in response to Senate Bill 210. Concerning the same provisions of the rule, a commenter objected to provisions that appear to provide regulatory "cookbook medicine," citing in particular sec.401.587(f)(1) (redesignated as subsection (e)(1)). Another commenter noted that the language in both sec.401.587(f)(1) and (2) (redesignated as subsections (e)(1) and (2)) is too prescriptive. One commenter stated that staff consider this a violation of the Medical Practice Act because it attempts to define how to prescribe medications. The department responds that the language of the rule closely follows the language of Senate Bill 207. With regard to sec.401.588(c)(4) (redesignated as subsection (b)(4)), a commenter suggested that it be clarified that consent must be written. The department responds that subsection (c)(2) redesignated as subsection (b)(2)), which on proposal stated that consent information would be provided to the patient in a standard format prescribed by the department, has been deleted on adoption. Senate Bill 207 does not require written informed consent to psychoactive medications in psychiatric hospitals. A commenter also noted that subsection (d) (redesignated as subsection (c)) of the same section seemed redundant. The commenter asked if the physician must confirm the consent process, should not the physician also be required to confirm every other behavior of nurses and others, such as the taking of blood pressure. The department responds that the language of the rule closely follows the language of Senate Bill 207. The sections are adopted under the Texas Health and Safety Code, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. sec.401.582. Application. The provisions of this subchapter apply to: (1) persons operating psychiatric hospitals in Texas under of the Texas Health and Safety Code, Chapter 241 or Chapter 577; (2) applicants for licensure to operate a psychiatric hospital in Texas; and (3) persons contracting with or otherwise providing services to inpatients in a psychiatric hospital in Texas. sec.401.583. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise: Admission-The formal acceptance of a prospective patient to a facility. Assessment-The administrative process a facility uses to gather information from a prospective patient, including a medical history and the problem for which the patient is seeking treatment, to determine whether a prospective patient should be examined by a physician to determine if admission is clinically justified. Community center -A community mental health center or a community mental health and mental retardation center administered by a board of trustees pursuant to the Texas Health and Safety Code, Chapter 534 et seq. Department-The Texas Department of Health. Emergency situation -A situation in which it is immediately necessary to administer medication to a patient to prevent: (A) imminent probable death or substantial bodily harm to the patient because the patient: (i) overtly or continually is threatening or attempting to commit suicide or serious bodily harm; or (ii) is behaving in a manner that indicates that the patient is unable to satisfy the patient's need for nourishment, essential medical care, or self- protection; or (B) imminent physical or emotional harm to others because of threats, attempts, or other acts the patient overtly or continually makes or commits. Hospital-A general or special hospital as defined in the Health and Safety Code, sec.241. 003(4) and (11) that includes an identifiable part of the hospital for the provision of mental health services. Intake-The administrative process for gathering information about a prospective patient and giving the prospective patient information about the facility and the facility's treatment and services. License-The permission granted to a person by the department to operate a private psychiatric hospital as defined in this subchapter. Mental health services-Includes all services concerned with research, prevention, and detection of mental disorders and disabilities and all services necessary to treat, care for, supervise, and rehabilitate mentally disordered and disabled persons, including persons mentally disordered and disabled from alcoholism and drug addiction. Mental health services provider-An individual, licensed or unlicensed, who performs or purports to perform mental health services (alleviating mental or emotional illness, symptoms, conditions, or disorders, including alcohol or drug addiction; understanding conscious or subconscious motivations; resolving emotional, attitudinal, or relationship conflicts; or modifying feelings, attitudes, or behaviors that interfere with effective emotional, social, or intellectual functioning), including a: (A) certified social worker as defined by Human Resources Code, sec.50.001; (B) chemical dependency counselor as defined by Acts of the 72nd Legislature, Regular Session, 1991, Chapter635, sec.I, Texas Civil Statutes, Article 4512o; (C) licensed professional counselor as defined by Texas Civil Statutes, Article 4512(g) (Licensed Professional Counselors Act, sec.2); (D) licensed marriage and family therapist as defined by Texas Civil Statutes, Article 4512-1 (Licensed Marriage and Family Practice Act, sec.2); (E) member of the clergy; (F) physician who is "practicing medicine" as defined by Texas Civil Statutes, Article 4495b (Medical Practice Act, sec.1.03) or a person employed by any agency of the United States having a license to practice medicine in any state of the United States; (G) psychologist offering "psychological services" as defined by Texas Civil Statutes, Article 4512c (Psychologists' Certification and Licensing Act, sec.2); and (H) registered nurse as defined in law. Person-Any individual, partnership, corporation, association, or joint stock company, and includes a receiver, trustee, assignee, or similar representative of these interests. Unless the context clearly indicates otherwise, the term also includes a political subdivision. Physician-A person licensed to practice medicine in the State of Texas or a person employed by any agency of the United States having a license to practice medicine in any state of the United States. Psychiatric hospital - (A) An establishment licensed by the Texas Department of Health under the Texas Health and Safety Code, Chapter 577 offering inpatient services, including treatment, facilities, and beds generally for use beyond 24 hours, for the primary purpose of providing psychiatric assessment and diagnostic services and psychiatric inpatient care and treatment for mental illness. Such services must be more intensive than room, board, personal services, and general medical and nursing care. Although substance abuse services may be offered, 51% of beds must be dedicated to the treatment of mental illness in adults and/or children; or (B) that identifiable part of a hospital in which diagnosis, treatment, and care for persons with mental illness is provided and that is licensed by the Texas Department of Health under the Texas Health and Safety Code, Chapter 241. Psychoactive medication -A medication prescribed for the treatment of symptoms of psychosis or other severe mental or emotional disorders and that is used to exercise an effect on the central nervous system to influence and modify behavior, cognition, or affective state when treating the symptoms of mental illness, and may include: (A) antipsychotics or neuroleptics; (B) antidepressants; (C) agents for the control of mania or depression; (D) antianxiety agents; (E) sedatives, hypnotics, or other sleep-promoting drugs; and (F) psychomotor stimulants. Qualified mental health professional-A person acting within the scope of his or her training and licensure or certification, who is a: (A) certified or licensed social worker as defined by Human Resources Code, sec.50.001; (B) licensed professional counselor as defined by Texas Civil Statutes, Article 4512g (Licensed Professional Counselor Act, sec.2); (C) physician who is "practicing medicine" as defined by Texas Civil Statutes, Article 4495b, (Medical Practice Act, sec.1.03); or a person employed by any agency of the United States having a license to practice medicine in any state of the United States; (D) registered nurse as defined in law; or (E) psychologist offering "psychological services" as defined by (Article 4512c, Vernon's Texas Civil Statutes, Article 4512c, Psychologists' Certification and Licensing Act, sec.2). Sexual exploitation -A pattern, practice, or scheme of conduct, which may include sexual contact, that can reasonably be construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person. The term does not include obtaining information about a patient's sexual history within standard accepted practice while treating a suspected sexual or marital dysfunction. Special treatment procedures-Those procedures which include the use of any of the following: restraint; seclusion; electroconvulsive therapy; psychosurgery; behavior modification; unusual, investigational, and experimental drugs or therapy; and research projects that involve inconvenience or risk to the patient. Threat-Actions in response to a request for discharge that are illegal or unjustified by the patient's condition. sec.401.587. Patient Care Requirements for Licensure. (a) In order to be eligible for licensure as a psychiatric hospital, a proposed facility must: (1) meet the definition of a psychiatric hospital as delineated in sec.401.583 of this title (relating to Definitions); (2) be in substantial compliance with the standards of care and treatment as described in this subchapter, and applicable state and federal laws. (b) Each psychiatric hospital shall provide overall operations, a physical plant, and all services and treatment in a manner consistent with recognized hospital standards. All psychiatric hospitals shall provide services in conformance with standards of care and treatment that are not less restrictive than those required for state hospitals. In any case in which applicable federal and/or state law or rules are in conflict with the standards of the Joint Commission on Accreditation of Healthcare Organizations, the federal and/or state law or rule shall prevail. (1) For purposes of licensure, psychiatric hospitals, other than those operated by community centers, shall be in substantial compliance with inpatient standards set forth by the Joint Commission on Accreditation of Healthcare Organizations; that is, the standards for inpatient settings in the current edition of the Accreditation Manual for Hospitals. Additionally, such hospitals shall comply with standards set forth by the Joint Commission on Accreditation of Healthcare Organizations in the current edition of the Accreditation Manual for Mental Health, Chemical Dependency, Mental Retardation/Developmental Disabilities Services for: (A) special treatment procedures; (B) patient rights; (C) patient management; (D) adult mental health services; (E) child and adolescent services; (F) services in residential settings, partial-hospitalization settings and outpatient settings; and (G) therapeutic environment. (2) In keeping with accreditation policies currently set forth by the Joint Commission on Accreditation of Healthcare Organizations for inpatient programs of community centers, private psychiatric hospitals operated by community centers shall be in substantial compliance with inpatient standards set forth by the Joint Commission on Accreditation of Healthcare Organizations in the current edition of the Accreditation Manual for Mental Health, Chemical Dependency, Mental Retardation/Developmental Disabilities Services. Additionally, such hospitals shall provide nursing, medical, and pharmacy services and governing body procedures in accordance with standards set forth in the current edition of the Accreditation Manual for Hospitals. (c) The following provisions are requisite to obtaining and maintaining licensure by the Texas Department of Health: (1) Intake. The psychiatric hospital shall: (A) review with the prospective patient the patient's finances and insurance benefits; (B) explain to a prospective patient the patient's rights; and (C) explain to a prospective patient the facility's services and treatment process. (2) Assessment. An assessment for admission shall be conducted by a qualified mental health professional (QMHP) as limited by the following. (A) As of September 1, 1994, and annually thereafter, the QMHP must have completed eight hours of inservice training or continuing education relevant to intake and assessment procedures. (B) The QMHP may conduct assessments and make recommendations concerning the need for physician evaluation for inpatient admission only as consistent with the scope of their training and licensure or certification. (3) Admissions. All admissions, voluntary or involuntary, must be ordered and clinically justified by a physician. (A) Voluntary admissions. A voluntary patient cannot be admitted for treatment unless: (i) the facility has a physician's signed order admitting the patient; (ii) the facility administrator or designee has signed a statement indicating that the patient has been accepted for admission; and (iii) within 72 hours prior to admission of a patient on a voluntary basis; (I) an in-person medical examination has been conducted by a physician; and (II) an in-person assessment may have been conducted by a qualified mental health professional consistent with the QMHP's scope of training and licensure or certification; however, the need for psychiatric hospitalization must be determined and ordered by a physician. (B) Admission pursuant to emergency detention. No person shall be admitted to the hospital for emergency detention unless such admission is supported by a written statement in the patient record by a physician who has conducted a preliminary examination of the person and who has determined that the person meets the criteria for admission outlined in the Texas Health and Safety Code, sec.573.022. (i) A person cannot be taken to a psychiatric hospital for emergency detention unless the head of the facility or designee agrees in advance to accept the individual. A facility shall only accept such patients when a physician is available to immediately evaluate the person to determine whether the person meets the criteria for emergency detention outlined in the Texas Health and Safety Code, sec.573.022. Upon arrival at the hospital, the rights of persons apprehended for emergency detention, as required under Chapter 404, Subchapter E, of this title (relating to Rights of Persons Receiving Mental Health Services), must be provided and explained to the patient by hospital staff. (ii) Submission of an application for voluntary admission after the person has been apprehended for emergency detention but before the preliminary evaluation for admission for emergency detention has been conducted does not negate the requirements for the preliminary evaluation for emergency detention under the Texas Health and Safety Code, sec.573.022 (Mental Health Code, Article 5547-27). (4) Treatment. The hospital must ensure that each patient's treatment is carried out by appropriately credentialed and privileged professionals. Patient evaluation and treatment planning and implementation are the responsibility of all participating professionals. Each patient will have a treating physician, who shall have final authority for care and treatment. (5) Reportable conduct. Allegations concerning potential abuse, neglect, sexual exploitation, unprofessional conduct, or unethical conduct shall be reported and actions taken, both in accordance with applicable state laws and the administrative rules of the Texas Department of Health and the Department of Protective and Regulatory Services, including the requirements of the Health and Safety Code, Chapter 161, concerning posting of notice of duty to report. (A) For purposes of this subchapter, threats, coercion, or restrictive actions intended to influence the treatment decisions of a patient shall also be considered abuse. (i) Coercive or restrictive actions that are illegal shall be investigated as possible abuse under this section. (ii) Coercive or restrictive actions that are not justified by the person's condition, and that are in response to a person's request for discharge or refusal of medication, therapy, or treatment, or otherwise inquire into or use a right provided by law, shall be investigated as possible abuse under this section. (iii) Substantiated allegations may be grounds for hospital licensure review and possible revocation and other penalties as provided by law. (B) Allegation of sexual exploitation shall additionally be reported as required in Civil Practice and Remedies Code, Title 4, Chapter 81. (i) If a mental health services provider or the employer of a mental health services provider has reasonable cause to suspect that a patient has been the victim of sexual exploitation by a mental health services provider during the course of treatment, or if a patient alleges sexual exploitation by a mental health services provider during the course of treatment, the mental health services provider or the employer shall report the alleged conduct not later than the 30th day after the date the person became aware of the conduct or the allegations to: (I) the prosecuting attorney in the county in which the alleged sexual exploitation occurred; and (II) any state licensing board that has responsibility for the mental health services provider's licensing. (ii) Before making a report under this section, the reporter shall inform the alleged victim of the reporter's duty to report and shall determine if the alleged victim wants to remain anonymous. (C) Subject to the provisions of the Health and Safety Code, Chapter 161, employees and non-employees of psychiatric hospitals shall not be subjected to discrimination or retaliatory action for reporting violations of applicable laws and rules to authorities. This does not preclude disciplinary action being taken against an employee who intentionally makes a malicious or spurious allegation. Psychiatric hospitals shall post notice of protection from discrimination and retaliation as required under law. (6) Continuing care plan. The physician responsible for the patient's treatment shall be responsible for ensuring the preparation of a continuing care plan for a patient to be discharged unless the patient does not require continuing care, refuses to participate in continuing care, or is not available to participate in continuing care. The physician responsible for preparing the plan shall ensure that consultation occurs with the patient and mental health authority in the area in which the patient will reside before preparing the plan. The mental health authority is not required to participate in the development of a plan for a patient leaving a psychiatric hospital that is not owned or operated by a community center. (A) The physician shall be responsible for ensuring the delivery of the plan to a community center or other provider in the county where the patient will reside and that has been designated by the commissioner of the Texas Department of Mental Health and Mental Retardation to provide continuing care services, or to any other provider that agrees to accept the patient, provided that the provision of care by the center or provider is appropriate. (B) A physician who believes that a patient does not need a continuing care plan shall document the reasons for this determination in the patient's clinical record. (7) Transfer or referral from any services of a psychiatric hospital to the inpatient services of an inpatient mental health facility, including a state hospital. Prior to transferring a patient to the inpatient services of another inpatient mental health facility, the psychiatric hospital shall: (A) take necessary steps within the hospital's capability to stabilize the patient; (B) provide notice to the receiving facility of the intent to transfer a patient; (C) provide the receiving facility with information pertinent to the patient's diagnosis and condition; (D) receive verification from the receiving facility that there is space, personnel and services necessary to provide appropriate care for the patient; (E) transfer the patient using an appropriate method of transport; and (F) upon transfer of the patient, send the original or copies of the patient's appropriate clinical records to the receiving facility. (8) Each psychiatric hospital shall adopt policies and procedures establishing professionally recognized and accepted standards of care. (A) In developing such policies and procedures, each psychiatric hospital shall comply with the following rules of the Texas Department of Mental Health and Mental Retardation: (i) Chapter 404, Subchapter E, of this title, (relating to Rights of Persons Receiving Mental Health Services); (ii) Chapter 405, Subchapter E, of this title, (relating to Electroconvulsive Therapy); and (iii) Chapter 405, Subchapter FF, of this title (relating to Consent to Treatment with Psychoactive Medication) for those psychiatric hospitals operated by community centers and for those patients for whom a state mental hospital or community center is contracting for services with a psychiatric hospital. See sec.401.588 of this title (relating to Consent to Treatment with Psychoactive Medication) for rules governing all other patients in psychiatric hospitals. (B) Each psychiatric hospital shall adopt policies and procedures that are not less restrictive than departmental rules in areas of patient care and treatment as described in Exhibit A )see Rules of the Texas Department of Mental Health and Mental Retardation relating to Care and Treatment of Individuals Served.) (9) Confidential communications or records disclosure must be in compliance with the Texas Health and Safety Code, sec.sec.611.004, 611.0045, and 576.006. (10) With the exception of state hospitals and state centers, federal hospitals, hospital districts, community centers, and psychiatric hospitals operated by community centers, psychiatric hospitals shall comply with the provisions of the Treatment Facilities Marketing Practices Act, Texas Health and Safety Code, sec.164.001, et seq. sec.401.588. Consent to Treatment with Psychoactive Medication. (a) A person may not administer a psychoactive medication to a patient receiving voluntary or involuntary mental health services who does not consent to the administration unless: (1) the patient is in an emergency situation; (2) the patient is younger than 16 years of age and the patient's parent, managing conservator, or guardian consents to the administration on behalf of the patient; (3) the patient does not have the capacity to consent and the patient's representative authorized by law to consent on behalf of the patient has consented to the administration; or (4) the administration of the medication regardless of the patient's refusal is authorized by a judicial order issued under the Texas Health and Safety Code, sec.574.106; except that the use of the paragraph and the right to a judicial determination on whether a person may be required to take medication against their will is available only to a person in a psychiatric hospital operated or funded by the Texas Department of Mental Health and Mental Retardation (TDMHMR) , including: (A) state facilities; (B) psychiatric hospitals owned or operated by a community center; or (C) any psychiatric hospital contracting with or otherwise receiving funds from the Texas Department of Mental Health and Mental Retardation or a community center, for those patients in contracted or funded beds. (b) Consent given by a patient or by a person authorized by law to consent on behalf of the patient to the administration of psychoactive medication is valid only if: (1) the consent is given voluntarily and without coercive or undue influence; (2) the treating physician, licensed nurse, physician's assistant, or registered pharmacist provided the following information to the patient and, if applicable, to the patient's representative authorized by law to consent on behalf of the patient: (A) the specific condition to be treated; (B) the beneficial effects on that condition expected from the medication; (C) the probable health and mental health consequences of not consenting to the medication; (D) the probable clinically significant side effects and risks associated with the medication; (E) the generally accepted alternatives to the medication, if any, and why the physician recommends that they be rejected; and (F) the proposed course of the medication; (3) the patient and, if appropriate, the patient's representative authorized by law to consent on behalf of the patient is informed in writing that consent may be revoked; and (4) the consent is evidenced in the patient's clinical record by a signed form or by a statement of the treating physician, licensed nurse, physician's assistant, or registered pharmacist that documents that consent meeting the requirements of this section was given by the appropriate person and the circumstances under which the consent was obtained. (c) If a person other than the treating physician provides the information under subsection (b) of this section, then, not later than two working days after that person provides the information, excluding weekends and legal holidays, the physician shall meet with the patient and, if appropriate, the patient's representative who provided the consent, to review the information and answer any questions. The physician must document confirmation of the consent in the patient's clinical record. (d) A patient's refusal or attempt to refuse to receive psychoactive medication, whether given verbally or by other indications or means, shall be documented in the patient's clinical record. (e) In prescribing psychoactive medication, a treating physician shall: (1) prescribe, consistent with clinically appropriate medical care, the medication that has the fewest side effects or the least potential for adverse side effects, unless the class of medication has been demonstrated or justified not to be effective clinically; and (2) administer the smallest therapeutically acceptable dosages of medication for the patient's condition. (f) If a physician issues an order to administer psychoactive medication to a patient without the patient's consent because the patient is having a medication-related emergency: (1) the physician shall document in the patient's clinical record in specific medical or behavioral terms the necessity of the order and that the physician has evaluated but rejected other generally accepted, less-intrusive forms of treatment, if any; and (2) treatment of the patient with the psychoactive medication shall be provided in the manner, consistent with clinically appropriate medical care, least restrictive of the patient's personal liberty. 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 January 21, 1994. TRD-9435063 Anne K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: February 11, 1994 Proposal publication date: December 10, 1993 For further information, please call: (512) 206-4516 Chapter 402. Client Assignment and Continuity of Services Subchapter A. Admissions, Transfers, Absences, and Discharges -Mental Health Facilities 25 TAC sec.sec.402.1-402.44 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.sec.402.1-402.44 of Chapter 402, Subchapter A, concerning admissions, transfers, absences, and discharges-mental health services, without changes to the proposed text as published in the November 9, 1993, issue of Texas Register (18 TexReg 8127). The sections will be replaced by new sec.sec.402.1-402.5 and 402.7-402.30 on the same topic which are adopted contemporaneously in this issue of Texas Register. The repeal permits the adoption of new sections which comply with provisions of: Senate Bill 160, which mandated changes relevant to single portal authorities (SPAs); Senate Bill 834, which required that persons with a single diagnosis of chemical dependency are to be admitted to facilities designated by the Texas Commission on Alcohol and Drug Abuse (TCADA); Senate Bill 205, which mandated changes concerning the admission of minors and procedures for intake, admission, assessment, and transfer; Senate Bill 1067, which required a defendant to be transferred to the nearest appropriate mental health facility if the county sheriff provides evidence that the defendant is a person with mental illness or mental retardation and may constitute danger to self or others; and House Bill 771, which mandated changes relevant to the transportation of persons receiving services. A public hearing was held on December 1, 1993, to accept testimony on the repeal of the sections. No testimony was presented. No written comments were received. The repeals adopted are repealed under the Texas Health and Safety Code, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with rulemaking authority. 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 January 21, 1994. TRD-9435056 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: February 11, 1994 Proposal publication date: November 9, 1993 For further information, please call: (512) 206-4670 Chapter 402. Client Assignment and Continuity of Services Subchapter A. Admissions, Transfers, Absences, and Discharges -Mental Health Facilities 25 TAC sec.sec.402.1-402.5, 402.7-402.30 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.402.1-402.5 and 402.7-402.30 of Chapter 402, Subchapter A, concerning admissions, transfers, absences, and discharges-mental health services. Sections 402.3-402.5 and 402.8- 402.16, 402.18-402.20, 402.22, and 402.24-402.28 are adopted with changes to the proposed text as published in the November 9, 1993, issue of Texas Register (18 TexReg 8128). Sections 402.2, 402.7, 402.17, 402.21, 402.23, 402.29-402.30 are adopted without changes. The new sections would replace sec.sec.402.1-402.44 of existing Chapter 402, Subchapter A governing admissions, transfers, absences, and discharges-mental health facilities which are repealed contemporaneously in this issue of Texas Register. The new sections comply with provisions of: Senate Bill 160, which mandated changes relevant to single portal authorities (SPAs); Senate Bill 834, which required that persons with a single diagnosis of chemical dependency are to be admitted to facilities designated by the Texas Commission on Alcohol and Drug Abuse (TCADA); Senate Bill 205, which mandated changes concerning the admission of minors and procedures for intake, admission, assessment, and transfer; Senate Bill 1067, which required a defendant to be transferred to the nearest appropriate mental health facility if the county sheriff provides evidence that the defendant is a person with mental illness or mental retardation and may constitute danger to self or others; and House Bill 771, which mandated changes relevant to the transportation of persons receiving services. Consistent with department usage, following an initial reference to single portal authority, additional references throughout the sections now utilize the abbreviation "SPA." In sec.402.3, the definition of "absence" has been modified to be consistent with the term as defined in related rules governing continuity of services. In addition, throughout the sections the term "absence" is used exclusively in place of "furlough;" this is consistent with current department usage, although "furlough" is a termed used in the Texas Health and Safety Code. "Absence," when used with various CARE codes, is considered to more accurately reflect the status of a person receiving services. The definitions of "MHA (mental health authority)" and "MRA (mental retardation authority)" are revised to be consistent with the Texas Health and Safety Code, sec.533.035. The definition of "psychiatric hospital" is revised to specify that the licensing agency is the Texas Department of Health. In sec.402.4(b), the "shall" has been replaced by "may" to clarify that the decision to request designation as a SPA for a local service is at the discretion of the MHA for that service area. In subsection (e) of that same section, language has been revised to specify that when a MHA is not designated as the SPA for that service area, court commitments for inpatient mental health services are to be made to the mental health facility serving that area. Subsequent references throughout the sections to SPA responsibilities are modified accordingly. A grammatical error has been corrected in sec.402.5(a) resulting in the addition of new paragraph (4) incorporating existing language from paragraph (3). In subsection (c) of that section, paragraph (2) has been deleted because it is confusing and unnecessary. Subsection (d) has been rewritten for clarification. Subsection (e) has been modified to clarify that it is the mental health facility which refuses admission. Clarifying language has been added in sec.402.9(b) and (d) referencing discharge procedures which are described in department rules governing rights of persons receiving mental health services. In addition, language has been added to subsection (d) specifying the conditions under which an application for court-ordered mental health services can be filed for persons receiving voluntary inpatient services. In sec.402.10(a), paragraph (3) has been deleted because it was determined to be confusing and unnecessary. Subsection (b) has been rewritten to specify that the provisions of subsection (a) do not preclude the involvement of the SPA as described elsewhere in the subchapter. In subsection (d), a grammatical error is corrected with the insertion of "by" and the correct section (sec.574. 045 rather than sec.574.024) of the Texas Health and Safety Code has been referenced. For the sake of clarity and to be consistent with the rest of the subchapter, in sec.402.11(c) reference has been made to a "mental health" facility instead of just "facility." Language in subsection (e) has been clarified to indicate that if the SPA or mental health facility finds apparent irregularities with an order for temporary or extended mental health services, the court shall be notified immediately. Language in sec.402.12 has been revised to acknowledge amendments to the Texas Health and Safety Code, sec.574.045, contained in House Bill 771 of the 73rd Legislature regarding the transportation of persons receiving court-ordered mental health services. In addition, reference has been made to the specific section relating to the issue in the department's rules governing rights of persons receiving mental health services. The provision regarding liability protection in sec.402.15(d) has been deleted because it simply restates a statutory provision without adding clarification regarding implementation. In sec.402.16, language has been added in subsection (a) specifying that the department's rules concerning continuity of services for persons with mental retardation are to be followed when the person being discharged from a mental health facility has mental retardation. As a result, subsections (c)-(e) have been deleted. In the interests of clarity, the term "mental health facility" replaces "department" in subsection (b). In sec.402.20(a)(8), language has been added to reference the provisions of an earlier section regarding transportation. Language in sec.402.25(d) has been more clearly written to specify that the mental health facility shall notify the SPA when a person is transferred from the Texas Department of Criminal Justice. In addition, the title of the section has been corrected to reference the Texas Department of Criminal Justice. A public hearing was held on December 1, 1993, to accept testimony on the new subchapter as proposed. Oral testimony was provided by Texas Mental Health Consumers and by an advocate who read a written statement from from a residential client facing discharged from a state facility. Written comments from the public concerning the proposal were provided by a county judge; an individual from Katy, Texas; Advocacy, Inc.; the Texas Alliance for the Mentally Ill; Golden Triangle Alliance for the Mentally Ill; the Texas Council of Community Mental Health and Mental Retardation Centers, Inc.; Life Management Center for MH/MR Services; Tropical Texas Center for Mental Health and Mental Retardation; and MHMR Services for the Concho Valley. One commenter suggested that the single portal authority concept be dropped, reasoning that those responsibilities could and should be handled by the mental health authority (MHA) for an area. The department responds that single portal authorities are mandated by law in the Texas Health and Safety Code, sec.533.014, as amended by Senate Bill 160 of the 73rd Legislature, for the purpose of managing the entry into inpatient mental health services at state facilities of persons who are court-committed. The same commenter questioned whether a MHA could request to be designated a SPA for adults only and, if so, what will be done where the service system is inadequate to meet the needs of the committing courts. The department responds that a single portal designation cannot be limited to only adult commitments and that the reasons for the inadequacy of the service system will be discussed with the commenter by the appropriate contract manager. A commenter stated that many state hospitals seem to have an unwritten policy against voluntary admissions for inpatient mental health services and noted that forcing individuals who are seeking help to be court-committed is stigmatizing and unnecessarily traumatic. The commenter requested that the rule be modified to ensure that the court system is not the single port of entry into the state system for inpatient mental health services. The department responds that the court system is not intended to be the entry point to the public mental health service and the process described in this subchapter is designed specifically to avoid unnecessary court-commitments. Two commenters requested that the department reevaluate its conclusion that the implementation of the subchapter's provisions would result in no significant fiscal impact on MHAs. The department stands by the fiscal note included in the preamble to the proposal and responds that if the cost of a state hospital stay is a part of the MHA's total resource base, the cost of someone staying in the hospital due to inadequate continuity activities far exceeds the cost of those activities. A commenter requested that the department define "mental health authority" consistent with the language in the Texas Health and Safety Code, sec.533.035. The department agrees and has modified the definition accordingly. A commenter noted that language in sec.402.4(a) and (b) is contradictory as to whether an MHA must submit a request to be designated the SPA for that area. The department responds that an MHA may choose not to request the designation and has modified language in subsection (b) accordingly. The same commenter requested that subsection (b) be further modified to require the delivery of services in the "least restrictive environment as consistent with available funding" rather than the "most appropriate setting." The department declines to make the revision, noting that "most appropriate setting" is the language used in Texas Health and Safety Code, sec.533.014, as amended by Senate Bill 160, concerning single portal authorities. Regarding subsection (a) of the same section, two commenters asked what the criteria were for defining "an appropriate array of services" and who was responsible for developing the criteria. The department responds that Central Office staff in Mental Health Services are developing the criteria but not for inclusion in this subchapter; that degree of detail is considered inappropriate for inclusion in department rules. The same commenters asked what criteria determine whether a MHA serves its priority population and who determines to what extent services need to be provided the priority population. The department responds that the contract manager tracks this information as an aspect of contract compliance. Additionally, the commenters questioned what the criteria were for determining when the MHA "is in compliance with the terms of its performance contract and who makes that determination. The department responds the contract manager is responsible for making that determination. In addition, the department notes that Central Office staff in Mental Health Services will communicate with the commenter directly concerning specifics on the criteria in response to all three points. Regarding the plan required in subsection (b) of the same section, a commenter noted that many MHAs fall short in providing required services and that the department historically has experienced difficulties obtaining compliance by MHAs with plans of correction. The commenter recommended the creation of committees in each service area to include consumers, family members, advocates, community members, and professionals to assist in monitoring activities. The department responds that while this issue is beyond the scope of this rule, the Quality Services Council was created to accomplish exactly what the commenter suggested. The commenter noted also that while the department has always said that a service contract could be pulled from an MHA for failure to comply with the provisions of the contract, this has never happened. The commenter recommended that a contingency plan should exist for each service area to provide for the provision of services in the event of a contract suspension. The department responds that the prospect of "pulling" all or part of a contract is not taken lightly; should such a drastic step become necessary, no generic contingency plan would suitably address the complexities of such a situation. Three commenters questioned the provision in sec.402.4(e) that would permit an adjoining MHA to function as the SPA for a service area in which the authorized MHA either did not request designation as the SPA or was not so designated by the Board. The department agrees that the provision would be inappropriate and has modified the subsection to require that persons who are court-committed from a service area in which no SPA has been designated shall be committed to the mental health facility serving the area. A commenter questioned whether courts will commit directly "to" a SPA or "through" the SPA to the state facility, and suggested that if the answer is the former then state law must be changed. The department responds that all court- commitments from a service area for which a SPA has been designated will be directly to that SPA, and notes that recent changes in the state law (Senate Bill 160 of the 73rd Legislature as it amended the Texas Health and Safety Code, sec.533.014) were the critical factor behind the proposal of this new subchapter. A commenter stated concerning sec.402.5(b) that the written consent of a parent, conservator, or guardian should be sufficient for voluntary admission of a minor and should never lead to the hospital seeking an involuntary commitment. The department notes that nothing in the provision cited by the commenter says otherwise, but adds that there may be instances when the SPA or facility, as appropriate, would find it necessary to proceed with a court-commitment should consent be withdrawn and the individual meets the criteria for continued inpatient services. Concerning the same subsection, another commenter questioned whether the department really wanted to require that minors must also consent to admission when the guardian or managing conservator is an employee or agent of a governmental body; the commenter acknowledged that the provision was consistent with state law (the Texas Health and Safety Code, sec.572.001(c)). The department responds that it cannot by rule negate a provision of state law. A commenter questioned what would happen if a facility determines that a person to be committed has a "psychiatric condition which the MH facility is not equipped to treat" as stated in sec.402.5(b). The commenter further questioned what criteria would be used to make such a determination and what would become of the person? The department responds first that the listing of contraindications for admission to a facility applies whether the person is seeking voluntary admission or is court-committed. The department further responds that the person would be referred to the MHA for that service area if voluntary services were sought, or back to the SPA if the person were court- committed. Under the new subchapter, the later instance would have occured because the SPA would not recommend commitment to that facility to the court unless the facility was equipped to provide the necessary treatment. Regarding subsection (d) of the same section, a commenter questioned whether the department was saying that admissions personnel at a facility could take the place of the judiciary by making a determination that an order of commitment was invalid on its face. The department responds that the provision has been rewritten for clarity. A commenter questioned what the SPA would be able to do for a person whose admission was refused as provided in sec.402.5(e). The department responds that if the admission was court-ordered, the SPA would be responsible for providing the needed services in an appropriate setting. The language has been revised to clarify that the SPA should be notified, if appropriate, since it would not be involved if the person was seeking voluntary admission. A commenter questioned whether the "or" after sec.402.9(a)(1) should be "and. " The department responds that the language is correct as proposed. Three commenters requested that subsection (d) of that section be clarified as the intent was unclear. The department agrees that the provision is unclear and misleading and has revised the language accordingly. A commenter noted that the language in sec.402.10(b) is not clear regarding who is responsible for transporting the individual and for the cost of transportation. The department agrees and has revised the language. A commenter requested clarification in subsection (e) of that same section regarding who is to perform and be responsible for the costs of the medical examination necessary to support the application for an Order of Protective Custody when the person is under emergency detention and an application for court-ordered treatment has been filed. The department responds that such arrangements are usually negotiated in advance between an MHA and the state facility in the form of a memorandum of agreement. Responsibility for conducting such evaluations are not inconsistent with current requirements of the TXMHMR Mental Health Community Services Standards. A commenter questioned whether a court order considered to be invalid by a facility as described in sec.402.11(e) shouldn't be returned to the committing court. The department responds that the section has been rewritten to so indicate. A commenter asked what the effect on the responsibility for service delivery would be if the executive director or designee named as required in sec.402.13 is no longer employed. The department responds that the responsibility would be assumed by the new person in that position. In addition, the department that the provision for a specific person to be named is required by the Texas Health and Safety Code, sec.574.037. A commenter noted that the use of both "executive director of the single portal authority" and "head of the facility" in sec.402.14 is confusing. Regarding that same section, another commenter requested clarification as to who was to perform the medical examination required in paragraph (2). The department agrees with both comments and has modified the language to clarify. A commenter commended the department for referencing "orderly discharge planning" in sec.402.15(a) and expressed hope that this, in conjunction with proposed new provisions in other department rules would end short notice discharges from state facilities. The department acknowledges the commendation, but notes that the language in question is contained in current department rules governing this topic. The same commenter questioned whether the protection against liability contained in subsection (d) of that section could be extended to the MHA and SPA. The department reviewed the provision as proposed in the subchapter, as well as the relevant statute (Texas Health and Safety Code, sec.571.019) and determined that the statute does afford this protection. It was additionally determined that the language as proposed did not add any information or procedural information beyond that of the statute; the subsection has been deleted. A commenter expressed concern with provisions in sec.402.16 related to the adequacy of discharge and aftercare planning for persons with mental retardation being served on the multiple-disability units of state hospitals. The department concurs and has revised the section to reference department rules governing the continuity of services for persons with mental retardation. New rules on that subject are expected to be effective within several months of the effective date of this subchapter. Regarding sec.402.17(a)(3), one commenter acknowledged the inability to recommend a good solution but predicted that conflicts between "orderly discharge planning" and "immediate release" will occur with some regularity. The department agrees with the commenter's assessment. A commenter stated that one example of embedded costs for MHAs is found in sec.402.18(b) which requires the SPA to conduct evaluations of court-committed persons who meet discharge requirements but wish to remain in the facility for voluntary mental health services. The department responds that such evaluations would normally take place in the context of reviews of the individualized treatment plan. Further, if the MHA decided to continue to support the use of this resource for that individual, such an evaluation could be deferred. The new sections are adopted under the Texas Health and Safety Code, sec.533. 014, as amended by Senate Bill 160 of the 73rd Texas Legislature, and the Texas Health and Safety Code, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with rulemaking authority. sec.402.1. Purpose. The purpose of this subchapter is to establish criteria and guidelines: (1) to govern admissions, transfers, absences, and discharges of persons served by mental health facilities of the department; and (2) for designation by the Texas Mental Health and Mental Retardation Board of a mental health authority as a single portal authority (SPA) pursuant to the Texas Health and Safety Code, sec.533.014. sec.402.3. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Absence-When a person is physically away from a campus-based location (ward or dorm). A person may be absent for hospitalization, a home visit, a special activity, transfer to another component, unauthorized departure, other reasons, or trial placement (formerly referred to as furlough). In the event of an absence of more than 72 hours for a person who is involuntarily committed the court which issued the order must be notified. Specific absence codes are used for tracking by Client Assignment and Registration (CARE). Board-The Texas Mental Health and Mental Retardation Board. CARE-The TXMHMR computerized database which contains assignment and treatment information about persons receiving services. Commissioner-The commissioner of the department. Department-The Texas Department of Mental Health and Mental Retardation. Executive director -The executive director of a mental health authority (MHA). DSM-The Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. Head of the facility-The superintendent or director of a mental health facility or a mental retardation facility of the department. Legal holiday-A state holiday specified in Texas Civil Statutes, Article 4591, or an officially declared county holiday that applies to a court in which proceedings under this subchapter are held. MHA (mental health authority)-An agency designated by the commissioner to plan, facilitate, coordinate, and provide services to persons with mental illness or with a dual diagnosis of mental illness and chemical dependency as are required to be performed at the local level by state law and by the department. Mental health facility-A state hospital or state center that provides mental health services. MRA (mental retardation authority)-An agency designated by the commissioner to plan, facilitate, coordinate, and provide services to persons with mental retardation as are required to be performed at the local level by state law and by the department. Mental retardation facility-A facility of the department that provides mental retardation services. Psychiatric hospital -As defined in Chapter 401, Subchapter J of this title (relating to Standards of Care and Treatment in Psychiatric Hospitals): (A) an establishment licensed by the Texas Department of Health under the Texas Health and Safety Code, Chapter 577 offering inpatient services, including treatment, facilities, and beds generally for use beyond 24 hours, for the primary purpose of providing psychiatric assessment and diagnostic services and psychiatric inpatient care and treatment for mental illness. Such services must be more intensive than room, board, personal services, and general medical and nursing care. Although substance abuse services may be offered, a majority of beds (51%) must be dedicated to the treatment of mental illness in adults and/or children. Services other than those of an inpatient nature are not licensed or regulated by the Texas Department of Health and are considered only to the extent that they affect the stated resources for the inpatient components; or (B) that identifiable part of a hospital in which diagnosis, treatment, and care for persons with mental illness is provided and that is licensed by the Texas Department of Health under the Texas Health and Safety Code, Chapter 241. Single portal authority (SPA)-A mental health authority which has been designated by the board to serve as the agency with responsibility for coordinating and facilitating the delivery of mental health services to court committed persons in its local service area. sec.402.4. Designation and Responsibilities of a Single Portal Authority. (a) A MHA may request designation by the board as a single portal authority (SPA) pursuant to the Texas Health and Safety Code, sec.533.014, if it: (1) provides or contracts for an appropriate array of core services; (2) serves its priority population; and (3) is in compliance with the terms of its performance contract with the department. (b) If the MHA satisfies the criteria listed in subsection (a) of this section, it may submit a written plan to the deputy commissioner for mental health services which describes: (1) the responsibilities the MHA will assume for ensuring persons who are court committed receive mental health services in the most appropriate setting; (2) the involvement of local officials; and (3) the processes which will enable implementation. (c) The deputy commissioner for mental health services shall review and evaluate the MHA's plan and then confer with the commissioner, who shall make recommendations to the board regarding the designation of the MHA as a SPA. (d) If the board determines the MHA's plan can appropriately, effectively, and efficiently provide mental health services to court committed persons, then the board shall designate the MHA as a SPA. Upon designation of a SPA: (1) the written plan shall become an addendum to the MHA's performance contract with the department; (2) the designation shall extend for the duration of the performance contract; and (3) the written plan shall be re-evaluated during the performance contract review. (e) In absence of a MHA's request to be designated as a SPA, or when the board does not designate a MHA as a SPA, all court commitments for that area shall be made to the mental health facility serving the area. (f) Following designation of a SPA the department shall notify each judge who has probate jurisdiction in the service area and any other person the SPA considers necessary of the designation and the new procedures required in the area. (g) All commitments pursuant to the Texas Health and Safety Code, Chapter 574, shall be made to the SPA which serves the area, or the appropriate mental health facility as described in subsection (e) of this section, with the exception of: (1) commitments to psychiatric hospitals under the Texas Health and Safety Code, sec.574.042; (2) commitments to federal facilities under the Texas Health and Safety Code, sec.574.043; (3) commitments to facilities of the institutional division of the Texas Department of Criminal Justice under the Texas Health and Safety Code, sec.574.044; and (4) evaluations and commitments under the Texas Code of Criminal Procedure, Articles 46.02 and 46.03. (h) The SPA shall file a recommendation for treatment with the court prior to the commitment hearing date pursuant to the provisions of the Texas Health and Safety Code, sec.574.012. (i) Inpatient mental health facilities operated by the department shall admit a court committed person on an emergency basis when obtaining approval from a SPA to which the person should have been committed could result in a delay which might endanger the person or others. (j) The SPA and the department's facility, if necessary, shall cooperate to ensure services to court committed persons in the most appropriate location as soon after admission as possible. (k) The board shall revoke or suspend the designation of SPA if it finds that there has been a substantial failure by the MHA to comply with the rules of the department. sec.402.5. General Provisions for Admission. (a) For a person to be considered for admission to a mental health facility, there must be a reasonable presumption of mental impairment. This does not, in and of itself, justify admission; but if the mental impairment is present in certain types or in certain degrees of severity or in combination with any of the following social conditions, the admission may be considered as appropriate. The social conditions include: (1) ideational or behavioral indications of dangerousness to self or others; (2) impairment of social, familial, or occupational functioning of sufficient severity to require the structure or safety of inpatient psychiatric services; (3) inability to meet own basic life and health needs; and/or (4) social support and/or familial support which is inadequate or detrimental. (b) The written consent of the parent, managing conservator, or guardian is required for voluntary admission of persons under 16 years of age. (1) If the guardian or managing conservator is an employee or agent of the State of Texas or a political subdivision thereof and is acting in an official capacity, the minor also must consent. (2) A minor of any age may apply for and receive services for psychiatric problems arising from child abuse or neglect, or suicidal ideation without the consent of any other party. (c) The following are contraindications to admission to mental health facilities: (1) a medical or psychiatric condition which the mental health facility is not equipped to treat; (2) a diagnosis of mental retardation, epilepsy, or senility, unless the applicant also has a mental illness and meets the admission criteria; (3) antisocial behavior not resulting from mental illness; (4) for an applicant under age 16, failure or refusal of the parent, guardian, or managing conservator to sign the application, or failure or refusal of the applicant to sign the consent when request for admission is made by a person or agency appointed as a guardian or managing conservator in its capacity as an employee or agent of the State of Texas or a political subdivision thereof; and (5) failure or refusal of a minor 16 years of age or older to sign consent. (d) If the SPA or mental health facility, as appropriate, detects what appear to be serious irregularities with an order of commitment, the court shall be notified immediately. (e) Whenever an admission is refused by a mental health facility, an alternate disposition shall be recommended with regard to the needs of the applicant, and the responsible SPA or MHA, as appropriate, must be contacted and advised of the recommendation within 24 hours. sec.402.8. Special Criteria for Waco Center For Youth. (a) A resident of Texas who applies for services provided by the Waco Center for Youth shall be considered for admission provided that the applicant: (1) is 10 through 17 years of age; (Age at admission must allow adequate time for treatment programming prior to reaching age 18.) (2) is diagnosed as emotionally and/or behaviorally disturbed and is not acutely psychotic, suicidal, homicidal, or seriously violent; (3) is either in the managing conservatorship of the Texas Department of Protective and Regulatory Services (PRS) or is served by a mental health facility or a MHA; (4) displays a history of behavior adjustment problems; (5) is clinically determined not to have mental retardation as defined in the latest edition of the DSM; and (6) needs a structured treatment program in a residential facility or a transitional program following discharge from intensive inpatient care in a mental health facility. (b) No emotionally disturbed juvenile who has been found to have engaged in delinquent conduct or conduct indicating a need for supervision under the Texas Family Code, Title 3 shall be admitted to the Waco Center for Youth. (c) All referrals shall be reviewed by the admission committee of the Waco Center, including the PRS liaison worker as required. Notification of acceptance or rejection shall be made directly to the referring agency prior to initiating the admissions process. The Waco Center shall review referrals for admission of children and adolescents who meet the eligibility criteria and who: (1) are under the managing conservatorship of PRS; or (2) have been discharged from a mental health facility and are referred directly to the Waco Center by the SPA serving the area where the person resides. (d) Persons under the managing conservatorship of PRS as described in subsection (c)(1) of this section shall be referred directly by that agency to the PRS liaison worker stationed at the Waco Center. Other individuals served by PRS may be referred to the local MHA for mental health services and for possible referral to the Waco Center. (e) In all other regards, admissions to the Waco Center shall be pursuant to the provisions of the Texas Health and Safety Code, Title 7, Subtitle C. sec.402.9. Voluntary Inpatient Mental Health Services. (a) A written application for admission to a mental health facility for voluntary inpatient services shall be filed with the MHA serving the area in which the applicant resides. The application shall be signed: (1) by the person to be served if the person is 16 years of age or older; or (2) as described in sec.402.5(b) of this title (relating to General Provisions for Admission) if the person is under 16. (b) The application shall state that the person agrees to remain voluntarily in the mental health facility as an inpatient and that the person consents to the diagnosis, observation, care, and treatment to be provided until discharged, or until the expiration of four hours after written request for release is filed with the head of the facility by the person or the individual responsible for the person's admission. Discharge of the person shall be accomplished as described in sec.404.157 (relating to Rights of Persons Voluntarily Admitted to Inpatient Services) of Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services). (c) The MHA shall screen applicants for inpatient services as described in Chapter 402, Subchapter B of this title (relating to Continuity of Services- Mental Health). (d) An application for court-ordered mental health services may be filed by the mental health facility, in coordination with the appropriate SPA for a person receiving voluntary inpatient care, provided the provisions of sec.404.157 (relating to Rights of Persons Voluntarily Admitted to Inpatient Services) of Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services) are followed. The person must have: (1) filed a request for release; (2) been absent without authorization; or (3) refused or been unable to consent to appropriate and necessary psychiatric treatment. (e) Prior to admission, the person for whom voluntary inpatient services is sought must be informed of the rights that person has as described in Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services). sec.402.10. Emergency Detention. (a) The department shall neither admit nor detain any person for emergency observation and treatment unless: (1) a warrant has been obtained from a magistrate pursuant to the Texas Health and Safety Code, Chapter 573, Subchapter B; or (2) an application by a peace officer for emergency detention has been presented pursuant to the Texas Health and Safety Code, Chapter 573, Subchapter A. (b) Neither paragraph (1) or (2) of subsection (a) precludes the involvement of the SPA as described in sec.402.4 of this chapter (relating to Designation and Responsibilities of a Single Portal Authority.) (c) Within 24 hours following apprehension of the person, an examining physician acceptable to the SPA for that area, or the mental health facility, if appropriate, shall prepare a specific and detailed written statement in compliance with the provisions of the Health and Safety Code, sec.573.022. The person shall not be detained if the person has: (1) mental retardation but not a mental illness; or (2) mental retardation and a mental illness but does not meet the criteria for emergency admission. (d) If, during the period of emergency detention, any of the conditions described in the statement required by subsection (c) of this section are determined to no longer apply, the person shall be released and transportation arrangements made as required in the Texas Health and Safety Code, sec.574.045. (e) If, during the period of emergency detention, a determination is made that the person requires further treatment, the appropriate SPA shall be notified. A written application for court-ordered treatment shall be filed by the SPA as required in the Health and Safety Code, sec.574.002, and an Order of Protective Custody shall be obtained under the Texas Health and Safety Code, sec.574.021. (f) A person admitted for emergency detention shall be advised of rights that person has as described in Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services). sec.402.11. Admission of Persons Court-Ordered to Mental Health Services. (a) The clerk of the county court which commits a person for mental health services shall provide a certified transcript of the commitment proceedings as required in the Texas Health and Safety Code, sec.574.047, to the SPA or the mental health facility, as appropriate. The SPA shall acknowledge the acceptance of the person and any personal property as required in the Texas Health and Safety Code, sec.574.048. (b) If a commitment order is valid on its face, but there exists a reason to believe that the requirements for a proper commitment have not been met, the person must be admitted and the court notified of suspected irregularities. (c) After the person has been admitted and a thorough psychiatric evaluation has been conducted, if one or more of the contraindications described in sec.402.5(c) of this title (relating to General Provisions for Admission) are present, the person shall be discharged in accordance with the Texas Health and Safety Code, sec.574.086 and sec.574.087. The mental health facility and the SPA shall consult with each other before the discharge is initiated. (d) A person accepted under an order of protective custody pursuant to the Texas Health and Safety Code, sec.sec.574.021-474.023, must be provided a probable cause hearing within 72 hours of the time detention begins as described in the Texas Health and Safety Code, sec.574.025. (e) An order for temporary mental health services under the Texas Health and Safety Code, sec.574.034, or extended mental health services under the Texas Health and Safety Code, sec.574.035, may be contraindicated if the person currently is charged with a Class A or Class B misdemeanor or a felony. The SPA or mental health facility, as appropriate, shall notify the court immediately of any such irregularities. An order of protective custody may be issued for a person charged with a criminal offense if the head of the facility designated to detain the person consents to the proposed custody. sec.402.12. Transportation of Persons Court-Ordered to Inpatient Services. (a) The transportation of a person court-ordered to inpatient services shall be handled as described in the Texas Health and Safety Code, sec.574.045. (b) The rights of the person shall be protected while being transported as described in sec.404.154(29) (relating to Rights of All Persons Receiving Mental Health Services) of Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services). (c) The costs of transportation shall be assumed by the committing county, if necessary. sec.402.13. Admission of Persons Court-Ordered to Outpatient Mental Health Services. (a) A court order for outpatient services through the department issued pursuant to the Texas Health and Safety Code, sec.574.037, must name the executive director of the SPA or a designee as responsible for service delivery. (b) Pursuant to the Texas Health and Safety Code, sec.574.061, an order for inpatient services may be modified by the court to require outpatient services upon request by the SPA. sec.402.14. Reexamination of Persons Court-Ordered to Extended Mental Health Services. The responsible court may, upon good cause, order a reexamination and rehearing for any person court-ordered to extended mental health services. When the SPA or the mental health facility, as appropriate, is notified of the need to reexamine a committed person, an examination shall be arranged in accord with the Texas Health and Safety Code, sec.574.066. (1) If the person no longer meets the criteria for court-ordered extended mental health services, the person shall be discharged. (2) If the SPA or mental health facility, as appropriate, determines that the criteria are still met, a certificate of medical examination (CME) may be filed with the court within 10 days after the request for reexamination and hearing is filed. sec.402.15. General Provisions for Discharges. (a) Any person who upon reexamination is found to have no mental impairment shall be discharged within the shortest possible time consistent with orderly discharge planning and the necessary coordination with the SPA and the court, if appropriate. (b) Continuity of care procedures established in Chapter 402, Subchapter B of this title (relating to Continuity of Services -Mental Health) shall be followed. (c) An individual filing a request for release of a person receiving services shall be notified that the individual assumes all responsibility for the person upon discharge. The notification shall be made even if the individual filing for release is the person receiving services. sec.402.16. Discharge of Persons with Mental Retardation. (a) If, for any reason, a person with mental retardation is admitted to a mental health facility as an inpatient under any type of commitment order pursuant to the Texas Health and Safety Code, Title 7, Subtitle C (the Texas Mental Health Code), and the person does not meet the criteria for such an order, that person shall be discharged as soon as the discharge can be appropriately arranged. The discharge shall be consistent with current department rules concerning the continuity of services for persons with mental retardation who are discharged, transferred, or on trial placement from a mental health facility. (b) The mental health facility department shall give advance notice of such discharge to the local mental retardation authority (MRA) for the county of residence of the person and to the person or agency who originally delivered the person with mental retardation to the facility. In addition, the court that issued the order under which the admission was accomplished shall be notified. sec.402.18. Change of Admission Status from Commitment to Voluntary. (a) The court committed person who is found to have some mental impairment and who meets the discharge criteria stated in of sec.402.17(a) of this title (relating to Discharges of Persons Court-Ordered to Inpatient and Outpatient Mental Health Services) may remain at the mental health facility after signing a voluntary application, provided: (1) the person has not been judicially declared incompetent and is otherwise competent to consent to the voluntary admission; and (2) there is a reasonable expectation of further improvement which could not be expected or would be inordinately delayed in an alternate setting. (b) The SPA shall be responsible for evaluating the person. sec.402.19. Continued Inpatient Mental Health Services for Persons Served on Voluntary Basis Who Meet the Discharge Criteria. (a) A person voluntarily admitted who upon examination is found to have some mental impairment and who meets the discharge criteria stated in sec.402. 17 of this title (relating to Discharges of Persons Court-Ordered to Inpatient and Outpatient Mental Health Services) may continue to receive inpatient services provided: (1) the person or a legally authorized representative gives consent, and (2) there is a reasonable expectation of further improvement which could not be expected or would be inordinately delayed in an alternate setting. (b) The SPA shall be responsible for evaluating the person. sec.402.20. General Principles Relating to Transfers. (a) The need for transfer of a person from one facility or institution to another is determined by circumstances which are highly specific to the individual case. The primary consideration is always the best interest of the person. The following general principles govern all transfers: (1) The person, whether voluntarily admitted or court committed, shall be involved, to the maximum extent possible, in planning for the transfer. (2) The person's family shall be consulted, if appropriate. (3) Transfers shall be by mutual agreement of the facilities and the MHAs involved and in accord with admission policies, except where otherwise provided by law. (4) If the head of the transferring facility has been notified by a prosecuting attorney that the person to be transferred has criminal charges pending, then the prosecutor shall be informed of the transfer by the transferring facility. (5) The medical record of the person must reflect the reasons for the transfer. (6) Copies of medical records or relevant portions, personal property, and trust fund accounts shall be transferred with the person. A psychiatric hospital or an agency of the United States is required to send the medical records of a person transferred to a mental health facility. (7) During transfers from one mental health facility to another, attending staff shall ensure that all appropriate physical care needs of the person are met and that the person's rights under departmental rules are preserved. (8) Transportation shall be arranged as described in sec.402.12 of this title (related to Transportation of Persons Court-Ordered to Inpatient Services. (b) The following types of transfers are permitted: (1) Transfers between the Maximum Security Unit at Vernon State Hospital and a nonsecurity facility. (2) Transfers from one state mental health facility to another. (3) Transfers between mental retardation and mental health facilities. (4) Transfers between mental health facilities and psychiatric hospitals or hospitals operated by the United States. (5) Transfers from the Texas Department of Corrections or county jails to mental health facilities. (6) Transfers to a hospital for medical treatment. (c) Interstate transfers shall be handled as described in Chapter 403, Subchapter H of this title (relating to Interstate Transfer). sec.402.22. Transfers From One State Mental Health Facility to Another. (a) Transfers from one state mental health facility to another may be made when deemed advisable by the head of the facility with the agreement of the receiving facility and the responsible SPA based on: (1) geographic residence of the person; (2) program availability; (3) geographical proximity to family; and (4) condition and desires of person. (b) If appropriate, the committing court shall be notified as a matter of courtesy. (c) The request for transfer to another mental health facility may be initiated by the person, the person's guardian, staff, or other interested persons. (d) The SPA shall evaluate the person being considered for transfer. (e) If the head of the transferring facility has been notified by a prosecuting attorney that the person to be transferred has criminal charges pending, then the prosecutor shall be informed of the transfer by the transferring facility. sec.402.24. Transfers Between Mental Health Facilities and Other Mental Health Facilities, Psychiatric Hospitals, or Hospitals Operated by the United States. (a) Upon giving notice to the committing court and the SPA , the head of a psychiatric hospital may, for any reason, transfer a court committed person to a mental health facility designated by the SPA pursuant to the Texas Health and Safety Code, sec.575.011 and sec.575.014. (b) The transfer of a person court committed to an agency of the United States shall be made pursuant to the Texas Health and Safety Code, sec.575.015. (c) During transfers between mental health facilities, attending staff shall ensure that all appropriate physical care needs of the person are met and that the rights of the person under Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services) and other applicable rules of the department are preserved. (d) If the person has mental retardation as well as a mental illness, the commissioner or designee must first determine that space is available on a unit designed to provide appropriate services to that person. sec.402.25. Transfers: From Texas Department of Criminal Justice or County Jail to Mental Health Facility. (a) Although the Code of Criminal Procedure, Article 46.01, authorizes the transfer of prisoners to a mental health facility with certification by a prison physician or county health officer, federal case law also requires provision of due process by the Texas Department of Criminal Justice (TDCJ) facility or county jail prior to transfer. (b) Following due process prior to transfer, the head of the mental health facility must also advise that resources are available and that the prisoner is eligible for treatment. (c) When a prisoner is to be transferred from a TDCJ facility or county jail to the Maximum Security Unit at Vernon State Hospital, staff at Vernon State Hospital shall request transmittal of the following to accompany the person at time of transfer: (1) documentation of determination of mental illness in the form of the prison physician's report or the county medical examiner's certificate of examination; (2) street clothes; and (3) personal funds. (d) The mental health facility shall notify the appropriate SPA of the transfer. sec.402.26. Absence for Trial Placement: General Principles. Absence for trial placement shall be used only when a person has reached an improved level of mental and social functioning that, in and of itself, does not justify discharge under the discharge criteria, but does indicate that trial placement outside an inpatient mental health setting is compatible with treatment goals. A justified use of ATP-absence for trial placement is to evaluate the adjustment of the person to home or an alternate placement setting. sec.402.27. Absence for Trial Placement: Special Provisions. (a) Justification of use of absence for trial placement (ATP) as opposed to discharge must be adequately documented in the person's record. (b) The absence shall not be for more than an initial period of 30 days. (c) Extension of the absence is to be considered only after a thorough review of the case and consultation with the referral source on the progress of the person. An extension is to be limited to a 30-day period. When additional time may be beneficial in implementing a specific plan of care for a person, the period may be extended beyond 60 days with the coordination and approval of executive director of the SPA. In no instance, however, shall the absence be extended beyond the ending date of commitment. (d) A person admitted voluntarily who is on trial placement who requires inpatient mental health services may be returned only with the person's consent. If there is a question of competency or of willingness to consent to return, the usual procedure for commitments must be followed in order to ensure the person's right to due process of law. (e) Continuity of care procedures established in Chapter 402, Subchapter B of this title (relating to Continuity of Services -Mental Health) shall be followed in granting authorizations for such absences. sec.402.28. Absence Under Court-Ordered Temporary or Extended Inpatient Mental Health Services. (a) The head of a facility may permit absences for persons under a court order for temporary or extended inpatient mental health services. The absence may be subject to specified conditions in coordination with SPA and the court must be notified of issuance of absences exceeding three days. (b) A person who is permitted to leave the facility on an absence may be detained and returned if conditions of the authorization are violated or if the person's condition deteriorates so that return as an inpatient to the mental health facility is necessary. (c) The head of the facility, a magistrate, or a peace or health officer may initiate the process of taking into custody, detaining, and returning the person who is under an order for temporary or extended inpatient mental health services. (d) Each head of a mental health facility shall designate one or more administrative hearing officers to conduct administrative hearings concerning revocation of an absence of more than three days. The hearing officer may be a mental health professional, but may not be directly involved in the treatment of the person. (e) An administrative hearing must be held within 72 hours of a person's return to the facility when the return is based upon the person violating the conditions of the absence or when the return is based upon the deterioration of the person to the extent that the person's continued absence from the facility is no longer appropriate. The reason for the return shall be documented in the person's record. The hearing shall be informal with both the facility staff and the person given the opportunity to present information and arguments. If the person desires, a member of the staff may act as advocate. (f) The hearing officer shall determine within 24 hours of the conclusion of the hearing whether the person has violated the conditions of the absence or whether the person's condition has deteriorated to the extent that continued absence from the facility is no longer appropriate. The hearing officer shall put his or her decision in writing and shall include an explanation of the reasons for the decision and the information relied upon. If the hearing officer determines that the absence shall be revoked, the decision shall be placed in the file of the person. If the hearing officer determines that the absence shall not be revoked, the person shall be permitted to leave the facility pursuant to the conditions of the absence. 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 January 21, 1994. TRD-9435051 Ann K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: February 11, 1994 Proposal publication date: November 9, 1993 For further information, please call: (512) 206-4670 Subchapter B. Continuity of Services-Mental Health 25 TAC sec.sec.402.51-402.61 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.sec.402.51-402.61, concerning continuity of services-mental health, without changes to the proposed text as published in the November 9, 1993, issue of the Texas Register (18 TexReg 8136). The purpose of the repeal is to allow for the contemporaneous adoption of a new subchapter which updates and clarifies procedures relating to continuity of services for persons receiving mental health services. In addition, the new subchapter implements provisions of House Bill 1713 and Senate Bills 160 and 252 (73rd Legislature). No public comment was received on the proposed repeal. The repeals are adopted under the Texas Health and Safety Code, sec.532.015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. 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 January 21, 1994. TRD-9435061 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: February 11, 1994 Proposal publication date: November 9, 1993 For further information, please call: (512) 206-4516 25 TAC sec.sec.402.51-402.67 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.402.51-402.67. Sections 402.51, 402.53-402.57 and 402.59-402. 66 are adopted with changes to the proposed text as published in the November 9, 1993, issue of the Texas Register (18 TexReg 8136-8142). Sections 402.52, 402.58, and 402.67 are adopted without changes and will not be repulbished. The new sections are adopted contemporaneously with the adoption of the repeal of the subchapter they replace, also known as Chapter 402, Subchapter B, relating to Continuity of Services-Mental Health. The proposed new rules update and clarify continuity of care procedures for persons receiving mental health services. The new subchapter also articulates continuity of care procedures for individuals discharged to a county jail and includes a new section addressing special considerations for treatment plan reviews for minors. Throughout the document, changes are incorporated to clarify the existence of one individualized treatment plan (ITP) for the person served. Although there are several identifiable phases in the evolution of that plan, it is illustrated that those phases require a review of the treatment plan with revisions made as appropriate to the current needs of the individual. As a result of this clarification, the definitions of "continuity of services," "individualized treatment plan (ITP)," and "interim plan for services" are revised in sec.402.53. Also in sec.402.53, the definition of "absence" is revised to reflect the phasing-out of the terms "pass" and "furlough." The terms are deleted or replaced throughout the rest of the subchapter. The definition of "continuity of services" is revised to clarify that continuity of services must also be addressed for individuals who move from the community to the state facility. Section 402.54(a) is similarly revised. Section 402.54(b) is revised to clarify the existence of a single treatment plan which evolves in several identifiable phases. Language is added to note that each MHA is required to follow procedures outlined in sec.401.164 (relating to Notification and Appeals Process) of Chapter 401, Subchapter G of this title (concerning Community Mental Health and Mental Retardation Centers), also adopted in this issue of the Texas Register. Several revisions are made to sec.402.55 to clarify the existence of a single treatment plan. In addition, sec.402.55(e) is revised to reflect that the MHA in the area to which an individual being discharged to a county jail will reside should be involved in the process of determining whether continued mental health services will be required for the individual. Section 402.56 is revised to reflect the new section heading for sec.402.59. Additionally, reference to a written agreement between the MHA and the MRA is deleted from the section. Language referencing procedures in sec.402.11 of this title (relating to Admissions, Transfers, Absences, and Discharges) is deleted from sec.402.57. Section 402.59 is retitled, "Transition Phase: ITP Review and Revision" to clarify the discussion of a particular phase in the evolution of the single ITP. Section 402.59(a) is revised to reflect that the MHA's capacity to provide appropriate levels of treatment and care will be considered by the facility treatment team when determining whether to discharge/furlough an individual. The title of Exhibit D is revised to reflect its relation to the transition phase of continuity planning. Section 402.59(d) is revised to clarify that the ITP will identify the safest, most appropriate living situation, and that more than one living situation may need to be explored until one which best meets the needs and desires of the individual is located. Language is added to sec.402.59(e) to reflect the need for involvement of the individual (and/or legal representative) in any telephone discussions between the facility treatment team/coordinator and the MHA representative which are conducted for the purpose of reaching consensus on revisions to the treatment plan. As noted on the document, it is clarified in sec.402.59(i) that the discharge summary must be mailed, faxed, or otherwise delivered to the facility within ten days of discharge/absence for trial placement. Section 402.60 is retitled, "Special Considerations for ITP Reviews for Minors During the Transition Phase" to reflect the transition phase as one phase in the evolution of the treatment plan. Additional revisions are made throughout the section to further clarify this point. Section 402.61 is retitled, "Absence for Trial Placement/Discharge and ITP Reviews During the Community Support Phase" to reflect the community support phase as one phase in the evolution of the treatment plan. Additional revisions are made throughout the section to further clarify this point. Section 402.62 is revised to clarify that an ITP will be developed which is consistent with the basic elements of the previous ITP. In addition to minor revisions clarifying the existence of a single treatment plan, sec.402.63 is revised to clarify the need to report any instance of mistreatment, abuse, neglect, or injuries of unknown origin. Section 402.64 is revised to clarify the existence of a single treatment plan which evolves in several phases. Exhibit D is retitled "Transition Plan" in sec.402.65. A public hearing to accept oral testimony on the proposed sections was held December 3, 1993, in Austin, Texas, where testimony was accepted from Advocacy, Inc., Austin; Texas Mental Health Consumers, Austin; and a private citizen. Written comments were received from 13 individuals or organizations, including: Advocacy, Inc, Austin; Jack Aycock, Nolan County Judge, Sweetwater; Dallas County MHMR, Dallas; Deep East Texas Regional MHMR Services, Lufkin; Golden Triangle Alliance for the Mentally Ill, Beaumont; The Gulf Coast Center, Galveston; Harris County MHMRA, Houston; Helen Farabee Center, Wichita Falls; Life Management Center for MHMR Services, El Paso; MHMR Services for the Concho Valley, San Angelo; TEXAMI, Austin; Texas Council of Community MHMR Centers, Austin; and the Tropical Texas Center for Mental Health and Mental Retardation, Edinburg. All commenters offered recommendations for changes. A commenter expressed general concern that appropriate aftercare planning for individuals being discharged was not conducted. The commenter noted that the subchapter should address the need for inpatient treatment facilities to provide for aftercare for issues other than medication. The commenter also requested that the subchapter address the need for aftercare planning to take into consideration the problems that lead to readmission to hospitals. The department responds that appropriate discharge planning should be conducted from a holistic approach. Furthermore, it is the responsibility of the facility and MHA representatives to locate the safest, most appropriate living situation for the individual after discharge. The subchapter clearly addresses the need for consideration of issues other than medication. Revisions have also been made to ensure the individual's participation in reaching consensus on the plan. Another commenter noted that, "the trade-off of state hospital beds versus jails, nursing homes, and the streets, is no good trade." The department agrees, but notes that unfortunately, limited resources make it impossible to always provide ideal situations. An emphasis on planning for discharge and identifying stable living situations and support systems, however, should help to stretch resources and enhance the quality of life for individuals receiving services. A commenter suggested the department reevaluate its conclusion that there is no anticipated cost to comply with the proposed new sections. The commenter noted that the expectation that "the MHA will ensure continuity of services activities, including the assignment of a continuity of services staff person to each person served at admission to any TXMHMR service..." carried with it a fiscal implication. The department responds that this requirement has been in place for many years, so there is no added fiscal implication. A commenter suggested that the implementation of continuity of care policies and practices requires the opportunity for staff to ask questions, air concerns, and obtain consistent direction across the state. The commenter recommended an "implementation phase" which provides for sufficient, long-term technical assistance and review of the rule (with changes, as needed). The department responds that as with any rule, technical assistance will be available to anyone needing it. Recommendations for revisions are always welcome, and will be addressed as necessary. In addition, the suggestion will be conveyed to the Mental Health Services division so that consideration may be given to additional training/assistance opportunities. The same commenter suggested that the provision of models for memoranda of understanding recommended throughout the subchapter would enhance the probability that practices are consistent and well-understood across the state. The department agrees, and will attempt to identify (or develop) models and share them with interested parties at a later date. Concerning sec.402.53, a commenter noted that a definition for "legal representative" was not included in the subchapter, and suggested such a definition might be a useful addition. The department agrees, and has included a definition. Also concerning sec.402.53, a commenter noted that the definitions for "mental health authority" and "mental retardation authority" did not correspond with those in the Health and Safety Code, Chapter 7, sec.533.035. The department agrees, and the definitions have been appropriately revised. Another commenter suggested that the definition of "individualized treatment plan" be revised to note that the "community support plan" would be based on the aftercare plan. The proposed language, the commenter noted, seemed to imply otherwise. The department agrees, but notes that revisions throughout the subchapter clarify the existence of only one treatment plan which evolves in several phases. The term "community support plan" has been deleted. Concerning sec.402.55, a commenter wanted to know the criteria that would be used to determine if a good-faith effort has been made. The commenter also wondered how long a need specified in the individualized treatment plan could go unaddressed without some alternative plan of action. The department responds that specific criteria cannot be identified; rather, the contract manager and field coordinators will review documentation to ensure that a good-faith effort has been made as it relates to the specific conditions which exist in each area. Unmet needs will be prioritized and efforts made to ensure their provision as soon as possible; in addition, plan reviews present opportunities to update services and, if appropriate, reprioritize needs. Concerning sec.402.53, a commenter asked that the phrase, "and as consistent with available resources," be added to the end of the definitions of MHA and MRA. The department responds that the definitions are taken from statute. A commenter asked that the phrase, "any TXMHMR service" be revised to read, "any TDMHMR facility." The commenter noted that as written, the wording implied that the subchapter applied to all community center services programs. The department responds that the broader use of the term was intended. A commenter requested that sec.402.55(b)(2) be revised to clarify when the 10 calendar timeframe begins. The department agrees, and the phrase, "of discharge or absence for trial placement" is added. Concerning sec.402.55(b)(4), a commenter noted that case management is a core service, and asked how the department could justify not making case management services available to those persons who qualify. The commenter questioned how long the department would find failure to provide those services acceptable, and suggested the department devise a method of tracking how many persons are denied case management services and documenting the justification for such denials. The department responds that unfortunately, a situation exists where there are more people requiring services than resources. Individuals found to require case management services who are not immediately assigned a case manager are placed on a waiting list with services provided as they become available. Information regarding those who are denied case management services (and justification) as well as information about those placed on waiting lists is entered into the CARE system and tracked in that manner. Another commenter asked that language in sec.402.55(b)(5) be revised to state that the assessment is agreed to by both facility and center staff. The department responds that the collaborative approach to treatment planning and the need for consensus on the plan already implies the recommended language. The subchapter has been revised to promote enhanced collaboration. With regard to sec.402.55(d), a commenter asked that the department emphasize efforts to look at more permanent and satisfactory discharge plans for individuals placed in personal care homes. The department responds that every effort is made to ensure that the individual resides in a living situation that is most appropriate to his or her needs and desires. Plan reviews (at minimum) present opportunities to review current conditions and consider and implement changes, including, if appropriate, locating more secure and permanent housing. A commenter asked what guidelines or criteria would be used to make the determination of the need for continued mental health services in sec.402.55(e). The commenter asked that it be clarified that the MHA shall engage in aftercare planning and follow-up care for the person when he or she is released from jail. The department responds that specific criteria cannot be provided regarding the determination of the need for continued mental health services because each situation must be considered on an individual basis. The department is not able to mandate that a jail system allow an MHA to take part in aftercare planning; however, this subchapter does not preclude an MHA from making efforts to arrange for mental health services for an individual after discharge from jail. Concerning the same section, a commenter noted that the Texas Commission on Jail Standards requires county jails to provide basic medical services, including mental health services, to inmates. The commenter requested that language be revised to clarify the jail's obligation. The department responds that this subchapter is intended to outline continuity of care responsibilities for TXMHMR facilities and MHAs. It is not intended to outline the responsibilities of other parties. With regard to sec.402.56(b)(2), a commenter suggested that the language provided no indication of what constitutes valid justification. The commenter noted that from the perspective of the client or person receiving services, the fact that the person needs services and has identified the MHA as appropriate to meet his/her needs should be sufficient and valid justification, but the commenter also noted that varying perspectives on the issue existed. The commenter asked that the department develop standards to provide guidance in this decision. The department responds that attempting to identify every situation would be an impossible task, and inevitably situations would be overlooked. The MHA must consider each situation on an individual basis. The same commenter asked that "emergency mental health services" as used in sec.402.56(b)(3) be defined. The department responds that services required will vary depending on the emergency presenting itself. The same commenter also asked that language from Exhibit C be added to sec.402.56(b)(5). The suggested language spells out specific instances in which the county of residence may not be able to be determined. The department responds that the purpose of Exhibit C is to provide additional information for MHAs in determining the county of residence. The general statement in the rule ("In cases where the county of residence cannot be determined...") is sufficient and encompassing. Concerning the same section, a commenter speculated difficulties concerning individuals already assigned to an MHA who have not been served for some period of time by that MHA. The commenter noted that a small group of individuals already assigned to an MHA are extremely transient, and suggested that obtaining approval from the former MHA to redesignate the individuals with a new MHA would be time-consuming and difficult. The commenter suggested creating a "transient county designation" which would preclude this approval process. The department responds that the purpose of the approval process is to ensure that the new MHA receives relevant information about the individual so that continuity of care may be provided. A "transient county designation" would not benefit these individuals as it would preclude such continuity. With regard to sec.402.57, a commenter asked that the subchapter be revised to clarify who has the authority to admit to a state facility and/or what will be done regarding disagreements about admissions. The department responds that the specifics of admissions to a state facility exceed the scope of this subchapter. Information about admissions is included in Chapter 402, Subchapter A (concerning Admissions, Transfers, Absences, and Discharges-Mental Health Facilities). With regard to sec.402.57(b), a commenter suggested that there is a discrepancy between the circumstances under which a preadmission screening by the MHA is required and the types of state facility admissions that are counted in community center performance and workload measures. The commenter noted that community centers are not consistently contacted to provide the screening when a person presents to a state facility and meets one of the criteria listed as an exception. The commenter asked that the section be revised to require the state facility to contact the community center to request the screening. The department responds that a facility must be able to provide emergency services to an individual requiring them, and is mandated to do so by law. Difficulties relating to exceptions to the preadmission screening should be addressed and worked out on a local level. Concerning sec.402.57(e), a commenter noted the benefit of having the facility notify the MHA on the next working day if the patient is admitted after 5:00 p.m. or on weekends. The commenter also suggested it would be even better to have the facility contact the MHA if there is an MHA 24-hour phone line. The department responds that the means of providing this notification should be worked out on a local level between the MHA and the facility. A commenter noted that the intent of sec.402.57(e) seemed to be to give priority to allowing the screening of the individual to take place, but suggested the language was not clear. The commenter suggested adding the phrase, "the receiving MHA will perform the screening regardless of county of residence and will immediately notify the MHA for the county of residence." The department responds that if an individual is presenting for services in an emergency situation, sec.402.56(b)(3) clearly states that the individual will receive the services in the county where the person is found to be in need of or requests services. However, if the individual requests services and it is not found to be an emergency situation, a referral to the appropriate MHA would be made. A commenter suggested that the role of the continuity of services staff person as outlined in sec.402.58(b) appeared to be rather passive. The department responds that active participation in transition planning is clearly articulated in the section. "Passive" is not a term which is appropriately utilized when referring to an effective continuity of services staff person. Concerning sec.402.56(b)(3), a commenter noted that this documentation was not currently a procedure at his MHA, and asked whether he should begin doing this. The department responds that this is a procedure which has been required for a considerable amount of time, and the individual should begin completing the documentation. With regard to sec.402.59(a), a commenter asked how bed capping would impact the process. The department responds that enhanced collaboration between the MHA and the facility, which is promoted throughout this new subchapter, should serve to alleviate potential difficulties relating to bed capping. Another commenter noted that maintaining the authority to discharge solely with the facility treatment team is inconsistent with the system directions under discussion with respect to the concepts of "bed capping" and "single portal authority." The department responds that although the facility treatment team retains clinical authority, the decision to discharge is made with apt consideration of available community alternatives and the capacity of the MHA to provide appropriate levels of treatment and care. Furthermore, the collaborative approach to treatment plan reviews during the transition phase promoted throughout this subchapter leads to more cooperative decision making which is consistent with system directions. Concerning the same section, a commenter expressed concern over the characterization of "appropriate levels of treatment and care" in the community as a "willingness of the MHA" issue. The commenter noted that alternatives are totally dependent upon the types and quantities of services contracted for by TXMHMR; the commenter noted that the availability of these things has nothing to do with the willingness of the MHA to serve consumers. The department responds that use of the term "willingness" was an inappropriate choice; the term has been replaced with "capacity." With regard to sec.402.59(c), a commenter suggested specifying that the documents be delivered to the continuity of services staff of the appropriate MHA. The department responds that the current language does not preclude this. Several commenters noted that the discharge summary referenced in sec.402. 59(i) is an essential tool for the community center. The commenter asked that the 14-day timeframe for its submission to the community center be reduced. The department responds that the 14-day timeframe is presented as a maximum; every effort should be made to ensure provision of the form at an earlier date when possible. However, a significant portion of the information contained in the discharge summary should be exchanged between the facility and the MHA through plan reviews and revisions. Again, enhanced collaboration between the MHA and the facility should significantly reduce the dependence on a written summary to obtain information about the individual. Several commenters took exception to language in sec.402.59(d), noting that it was not clear that more than one living situation might need to be explored with the individual prior to identifying the one that best meets the needs and desires of the individual. The department agrees, and language has been added to the section. The same commenters expressed concern over the lack of the individual's involvement in any telephone conversations conducted for the purpose of obtaining consensus on the treatment plan between the facility treatment team/coordinator and the MHA representative. The department agrees, and a provision requiring the individual (and/or legal representative, as appropriate) to be invited to and involved in any such discussions. A commenter suggested that sec.402.60 should be expanded to recommend inclusion of persons identified by the coordinator in each community program in facility meetings pertinent to aftercare for minors. The department responds that as written, such involvement is not precluded. A commenter asked that the term "should" be replaced with the term "shall" throughout sec.402.60, The department agrees, and language has been changed. Concerning sec.402.61(a), a commenter noted that 24-hour notice of discharge is inadequate. The department responds that a collaborative planning approach should reduce the 24-hour notice to an administrative task. A commenter noted that making the MHA responsible for "implementing community- based aspects of the aftercare plan" in sec.402.61(b) was not appropriate since the plan was developed by state facility staff. The commenter suggested the MHA should, at most, be responsible for "considering" as recommendations the state facility's community-based aftercare plan. The department responds that the MHA continuity of services staff person is expected to be actively involved in treatment plan reviews leading up to transition from the state facility to the community. Therefore, the MHA will be implementing a treatment plan that it helped to develop. With regard to sec.402.61(c), several commenters noted that since the community support plan was developed within three weeks after discharge, a review of it 30 days after admission to community- based services was inappropriate. The commenter suggested holding the review 30 days after development of the community support plan instead. The department responds that the rule has been revised to clarify the existence of one ITP which evolves in several phases. As revised, that plan is to be reviewed within three weeks of discharge from the hospital to address any new issues that have arisen since discharge. The additional review at the 30-day point is intended to ensure that all issues have been addressed and that the provisions of the treatment plan are being implemented. Another commenter suggested that the MHA should have 14 to 21 days to develop a community support plan after the individual attends his or her first appointment at the MHA. The commenter noted that in many cases, the consumer, shortly after discharge, is admitted to a local county hospital, jailed, or otherwise unable to be contacted. Based on revisions to the subchapter, the MHA is now required to conduct an ITP review within three weeks after discharge. Every effort should be made to attempt to contact the individual who misses the first appointment to ensure that services are provided. The same commenter asked whether provisions of sec.402.61(c) were applicable to persons who are not currently admitted to center services but who will be admitted during the aftercare appointment or to all persons discharged from a state facility regardless of admission status with the center. The department responds that the provision applies to all person discharged from a state facility. Concerning sec.402.61(e), a commenter noted that requiring the MHA to include in the community support plan the "mental health and other health care services provided in the mental health facility" potentially obligates the outpatient services to provide hospital levels or near-hospital levels of service. The commenter suggested that the requirement places the state facility in a position to dictate professional practice to the MHA. The commenter suggested revising the section to delete the absolute requirement that the MHA include services identified by the state facility, but determined by the MHA to be inappropriate or unavailable. The department responds that the MHA is involved in treatment plan reviews and revisions leading up to transition from the facility to the community. The treatment planning process is collaborative, ensuring that the individual actually receives appropriate services. A commenter noted that the same needs reflected in sec.402.61(e) should be considered and identified in subsection (f). The commenter also suggested that documentation should be provided identifying the need, the reason why the need cannot be addressed, the potential effects of not addressing the need, and a plan to revisit these issues and attempts to access the services in the future. The department responds that the information required in subsection (f) is in addition to that required in subsection (e); therefore, these needs are already identified as needing to be addressed. The purpose of ongoing reviews and revisions of the ITP is to ensure that needs which are not met early on are addressed at a later date, if still appropriate. Also concerning sec.402.61(e), a commenter asked if the requirements of the community support plan should track the requirements of a service plan listed in the MH and MR Standards. The department responds that language referencing a community support plan has been deleted; instead, the ITP is reviewed and revised. Requirements of ITPs must be met. A commenter asked for a definition of admission as used in sec.402.61(f) and (h). The department responds that admission is the point at which the individual is accepted to services at the MHA. Concerning sec.402.62, a commenter asked that the aftercare plan, if it continues to be appropriate, may be deemed by the MHA as the interim plan. The department responds that the term "aftercare plan" is no longer utilized; rather, the ITP is revised at the transition phase. If this plan is readily available, the MHA is not precluded from using it as the interim plan. The same commenter noted that timeframes for the transfer of patient information are different from MHA to MHA then they are between the facility and the MHA. The commenter noted that the issue is good clinical documentation readily available to the receiving treatment personnel. The department agrees, and has attempted to keep this in mind in establishing timeframes. However, the timeframes outlined are considered maximum; collaborative efforts should enhance the exchange of information. Concerning sec.402.62(a)-(c), a commenter suggested that some dialogue should occur between the original MHA and the new MHA before the case is closed at 90 days, with documentation included regarding the status of the individual seeking services at the new MHA. The commenter noted that an additional concern has to do with the implication that the individual might well be left with this issue not being addressed for 90 days. The department responds that closing the individual's record is an administrative task. If an MHA has not heard from the new MHA within 90 days, a call is generally made to the new MHA to confirm the transfer so that the case can be closed. The same commenter asked that a timeframe for the development of the interim plan for services with the person requesting services be included. The department responds that the interim plan for services is required to be developed upon admission. With regard to sec.402.63, a commenter asked if the MHA is still responsible for preparing a community support plan under sec.402.61 when the consumer is discharged to a nursing facility. The department responds that the development of a "community support plan" has been replaced with an ITP review and revision. According to sec.402.61, the MHA is required to conduct community support assessments and services for all such placements. This includes ITP reviews and revisions to ensure that the level of services provided to the individual meets their needs. Concerning sec.402.63(a), a commenter suggested that the MOU should also address the provision of specialized services under PASARR, if appropriate. The department responds that these issues should be addressed as part of the treatment plan review process. Concerning the same section, a commenter noted that his facility did not have any MOUs with nursing homes. The department responds that the adoption of MOUs is a recommendation; if the issues can be addressed and resolved in an alternative manner, that is highly appropriate. Concerning sec.402.63(b)(3), a commenter noted that even if the patient consents to including the family member in the planning, the legal representative could deny the family's inclusion. The commenter suggested that no thought has been given to the patient who must return to the care of his/her family, in which case the inclusion of the family in the treatment planning is essential. The department responds that the family's involvement in the treatment planning is not precluded unless the individual or his/her legal representative objects. A definition of legal representative has been added to clarify its meaning. Regarding sec.402.63(b)(4), a commenter wrote that unmet needs in the area of medication should only be addressed by nursing staff. The department responds that any staff should be able to determine if the individual who has been prescribed medication is out of that medication. Additionally, any staff should be able to contact the physician or nursing staff if the individual reports adverse effects. A commenter recommended revision sec.402.63(b)(5) to note that attempts to remedy the problem might include, "an offer to assist the individual to find an alternate placement in another facility." The department responds that the section has been revised to reflect that the community support worker shall report the situation, and that the MHA is responsible for developing and implementing a plan of action. The plan of action could include a number of things, many of which may be able to address the problem without disruption to the individual. The same commenter asked that sec.402.63(b)(5) be revised to reflect TDHS language addressing instances of mistreatment or injuries of unknown origin. The department agrees, and language has been added. Another commenter suggested deleting sec.402.63 and sec.402.64 from the subchapter altogether. The commenter suggested that the sections create separate sub-components of a system which impede continuity of care. The department responds that the discharging individuals to nursing homes and the private sector create a different set of circumstances which require slightly different procedures. The sections need to remain. Concerning sec.402.64, a commenter noted that the last sentence contained an incorrect reference. The department agrees, and the correct reference has been included. Concerning sec.402.65, a commenter wrote to offer support for Exhibit C. The department appreciates the support. Another commenter noted that Exhibit C does not provide a means to record that the person resides in another state. The department responds that individuals who reside in another state are dealt with through procedures outlined in Chapter 403, Subchapter H, concerning Interstate Transfer. These sections are adopted under the Texas Health and Safety Code, sec.532. 015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. sec.402.51. Purpose. The purpose of this subchapter is to outline uniform procedures to ensure continuity of services for persons with mental illness who: (1) are admitted to mental health facilities of the Texas Department of Mental Health and Mental Retardation (TXMHMR); (2) are absent for trial placement (formerly referred to as furlough) or discharged from TXMHMR mental health facilities to community-based mental health services; or (3) transfer from one mental health authority to another. sec.402.53. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise: Absence-When a person is physically away from a campus-based location (ward or dorm). A person may be absent for hospitalization, a home visit, a special activity, transfer to another component, unauthorized departure, other reasons, or trial placement (formerly referred to as furlough). In the event of an absence of more than 72 hours for a person who is involuntarily committed, the court which issued the order must be notified. Specific absence codes are used for tracking by the Client Assignment and Registration (CARE) system. Client Assignment and Registration System (CARE) -The TXMHMR computerized database which contains assignment and treatment information about persons served. Community-based service (CBS)-Refers to services provided through community programs under the jurisdiction of the Texas Department of Mental Health and Mental Retardation, by community mental health and mental retardation centers, and by independent contract providers established pursuant to Texas Civil Statutes, Article 5547-202, et seq. Continuity of services-The activities designed to ensure coordination of services to the person served, particularly between services within the TXMHMR system, to include: joint discharge planning, participation in treatment plan reviews and revisions during the transition phase, development of an interim plan for services (when necessary), designation of a continuity of services staff person for all individuals admitted to the MHA, planning/linking activities prior to transfer or addition of services, treatment plan review and revision during the community support phase, implementation of the treatment plan recommendations and revisions while the individual is in the community, obtaining adequate resources to meet the person's needs, and other activities as outlined in the TXMHMR MH Community Services Standards. Continuity of services staff person-A staff person specifically designated by the mental health authority to conduct continuity of services activities, e.g., caseworker, case manager, liaison worker. County of admission -The county where a person needs or requests services. County of residence -The county where a person resides. County of residence is determined by the person's address with no minimum time being considered. Department-The Texas Department of Mental Health and Mental Retardation. Discharge-The termination of treatment of a person served by a facility or a CBS which denotes the end of active treatment by the facility or CBS. Individualized treatment plan (ITP)-The plans which an individual and his or her provider develop to address the problems, goals, and direction of service delivery. Throughout the process of hospitalization and transfer to the community the ITP evolves in several distinct phases, each addressing the particular needs which are primary at that particular time. Those phases, listed here chronologically, are referred to as: (A) Inpatient phase. The ITP is developed and/or reviewed and revised by the treatment team of the person served (of which the person served is a member). The review generally focuses on addressing the alleviation of those symptoms of mental illness which have led to hospitalization and supporting the patient's motivation and capacity to experience further growth in community-based treatment programs. (B) Transition phase. The ITP is reviewed and revised jointly by the facility, mental health authority, person served, and other interested individuals prior to the absence for trial placement or discharge of a person served by a state facility to ensure linkage to an appropriate service delivery system. The needs addressed during the review are based on those identified during the inpatient phase, but generally focus on transition issues. In addition, the transition phase ensures the documentation of information about the individual's MHA liaison, follow-up appointments, and identification of a location to which the individual will be discharged/absent for trial placement. (C) Community support phase-The ITP is reviewed and revised by the mental health authority and the person served within three weeks of his/her discharge or absence for trial placement. The needs addressed during the review are based on those identified during the transition phase, with consideration of any issues that have arisen since discharge from the more intensive care provided in the state facility. Interim plan for services-The initial treatment plan completed by the MHA and the consumer upon admission to services at a new MHA or upon transfer from one MHA to another. The plan should be written in clear, straightforward language which provides the person with necessary information and provides guidance for the staff. As outlined in sec.402.62 of this title (relating to Development of Interim Plan for Services for Individuals who Change MHAs) this plan serves as the foundation for the ITP. Legal representative -The parent/conservator of a minor or the legal guardian of an individual, when applicable. Local service area-A geographic area made up of one or more counties which serves to define and delimit the population of persons residing in the area, including the subpopulation of persons with mental illness and mental retardation, and the extent of the responsibilities of the local mental health and mental retardation authorities for the area. Mental health authority (MHA)-The entity designated by the department to plan, facilitate, coordinate, and provide such services to persons with mental illness or with a dual diagnosis of mental illness and chemical dependency as are required to be performed at the local level by state law and by the department. Mental health facility-All state hospitals and state centers providing mental health services and any other agency which is now or may hereafter be a facility of the Texas Department of Mental Health and Mental Retardation. The term includes the Harris County Psychiatric Center. Mental retardation authority (MRA)-The entity designated by the department to plan, facilitate, coordinate, and provide such services to persons with mental retardation as are required to be performed at the local level by state law and by the department. Personal care home-An establishment, including an establishment formerly known as a board and care home, that: (A) furnishes, in one or more facilities, food and shelter to four or more persons who are unrelated to the proprietor of the establishment; (B) provides personal care services; and (C) provides minor treatment under the direction and supervision of a physician licensed by the Texas State Board of Medical Examiners, or services which meet some need beyond basic provision of food, shelter, and laundry. Planning-linking activities -Those activities which facilitate communication between the person served, CBS staff, facility staff, and others (as appropriate), to the end of assuring the coordination and delivery of services. Such activities may include, but are not limited to, visits by the person served to the program/placement under consideration for transfer/discharge, familiarizing the person with a program, and introducing the person to program staff. Screening-A procedure to determine appropriateness and eligibility for admission to state mental health facilities or community-based services. Service district -County or counties for which a facility has responsibility to provide inpatient services to individuals residing in that area. State facility -Any state hospital, state school, state center, or other agency which is now or may hereafter be a facility of the Texas Department of Mental Health and Mental Retardation. TXMHMR service system-All state facilities and all community mental health and mental retardation centers. sec.402.54. General Principles Regarding Continuity of Services. (a) The concept of continuity of services is designed to ensure that individuals moving from the structured environment of the state facility to the community, from one MHA to another, or from the community to a state facility are provided every support available to enable a successful transition. (b) The individualized treatment plan (ITP) is a tool which is utilized to facilitate the transition process, and, as a result, is a dynamic document. As the individual's needs change throughout the transition process, the plan is reviewed and revised to reflect those changes. Key points in that comprehensive development process are identified throughout this subchapter as the transition phase and the community support phase (see definition of individualized treatment plan (ITP) in sec.405.53 of this title). (c) Each MHA shall follow procedures outlined in sec.401.164 (relating to Notification and Appeals Process) of Chapter 401, Subchapter G, of this title (concerning Community Mental Health and Mental Retardation Centers). sec.402.55. Areas of Responsibility. (a) The department has designated mental health authorities (MHAs) within each of the local service areas as responsible for effecting continuity of services for persons served by the department in their local service areas. The MHA will ensure continuity of services activities, including the assignment of a continuity of services staff person to each person served at admission to any TXMHMR service and at all times, regardless of transfer, until discharge from the TXMHMR service system. (b) To facilitate continuity of services, the department shall have a contract or memorandum of understanding with each MHA which requires that the facility keep the MHA informed regarding plans, progress, and proposals for resumption of outpatient treatment, and which requires that the MHA provide: (1) a good-faith effort to make available and accessible those services specified in the ITPs of those persons being discharged, placed on absence for trial placement, or transferred to the MHA, for as long as the MHA determines that the person needs services, with documentation of clinical justification for changing or discontinuing services in the person's record; (2) documentation of personal or telephone contact within 10 calendar days of discharge or absence for trial placement (unless specified to be accomplished earlier in the ITP), the scheduling of follow-up appointments for persons referred for community support, and documentation of the MHA's efforts to have persons served meet those appointments; (3) documentation in records of persons served to reflect the MHA's efforts to extend services specified in the ITP to all persons served, including those who are hard to reach, i.e., who miss without rescheduling one or more significant service contacts (such as an appointment with a physician, case manager, or caseworker, or another activity important to achieving the primary treatment goal) within 90 days of an absence for trial placement or discharge, unless the person expressly refuses the services offered, in which case the rejection of services should be documented in the record of persons admitted or in a log for persons not admitted to services; (4) a good-faith effort to make available case management services to those persons who qualify according to TXMHMR criteria, with documentation of any exceptions; (5) a good-faith effort to arrange for nonclinical support such as food, clothing, and shelter in cases in which the department's assessment indicates that long-term hospitalization, and chronicity of mental illness, justify such action. This provision will apply only in situations in which no other resources are available. Documentation of the assessment of each person's need for nonclinical support services will be filed in the plan of service using the "Non-Clinical Support Needs Assessment" form, which is referred to in sec.402.65 of this title (relating to Exhibits) as Exhibit A; and (6) adherence to the timeframes contained in the "Nursing Facility Aftercare Assessment Schedule," which is referred to in sec.402.65 of this title (relating to Exhibits) as Exhibit B. (c) Non-MHAs which contract with the department to provide community-based extended, transitional, or geriatric care must sign a memorandum of agreement with the local MHA outlining the responsibilities for continuity of services and monitoring. (d) Placements to personal care homes will be made only to facilities licensed by the Texas Department of Human Services (TDHS). Facilities which appear to be operating as unlicensed personal care homes will be reported to TDHS. Facility/MHA staff who have questions should contact the TDHS Bureau of Long- Term Care at (512) 834-6697. (e) In the event an individual is discharged to a county jail, the discharging mental health facility treatment team, in conjunction with the MHA in the area to which the individual is being discharged, will determine if continued mental health services will be required. If ongoing mental health services are necessary, the mental health facility will coordinate with the MHA to determine whether the services will be provided by the county jail or the local MHA. If the local MHA is identified as the responsible agent, the provisions of this subchapter shall be followed. If the county jail will be providing ongoing mental health care, this will be documented by the mental health facility. sec.402.56. Determining County of Residence. (a) The local MHA for each person served will generally be determined by the county of residence as established by completing the "Mental Health Services County of Residence Determination Worksheet," which is referred to in sec.402.65 of this title (relating to Exhibits) as Exhibit C. (b) The local MHA will not be determined by the county of residence in the following situations: (1) In cases in which a dually diagnosed person is receiving services from both an MHA and an MRA, the local authority with responsibility for the person will be the one at which the person receives priority services. (2) Consideration will be given to a request for another MHA to assume responsibility for provision of services for individuals who have a valid justification to receive services outside of the county in which he or she resides. The determination to transfer responsibility will be made by the receiving MHA after giving due consideration to the needs and wishes of the consumer and family. In such instances, the continuity of services staff person at each MHA will ensure compliance with the requirements of this subchapter, consistent with sec.402.59 of this title (relating to Development of an Interim Plan for Services for Individuals who Change MHAs). (3) Emergency mental health services will be provided to individuals by the MHA for the county where the person is found to be in need of or requests services. (4) In cases in which an MHA assumes financial responsibility for a residential placement or support costs, it will remain the responsible MHA unless the MHA where the residential placement is located agrees to accept the responsibility. (5) In cases where the county of residence cannot be determined, the MHA for the county of admission will be responsible. (c) If a person who requires MHA community support services is discharged or is absent for trial placement from a facility into a private service system outside the MHA's local service area, the MHA shall coordinate with the MHA serving the receiving local service area and determine whether transfer of MHA responsibilities is in the person's best interest to ensure provision of all needed services. Provisions of sec.402.64 of this title (relating to Entry into Private Treatment Program of a Person Served) are to be followed. sec.402.57. Preadmission Screening, Referral, and Determination of the Least Restrictive Environment. (a) Prior to a person's admission to a mental health facility, the appropriate MHA will be responsible for screening the person to determine the most appropriate placement in the least restrictive environment. (b) Persons admitted to a mental health facility which is not designated as the MHA for the local service area must receive a preadmission screening by the MHA, except in situations in which: (1) there is a memorandum of understanding between the mental health facility and the MHA where it is stated that the facility will perform the screening; (2) there is an emergency admission; or (3) a person is physically present at the mental health facility and contact with the MHA determines that appropriate community-based services are not readily available. (c) The MHA must communicate information necessary for optimum treatment to the state facility prior to or at the time of admission, to include: (1) identifying data, including address; (2) legal status; (3) pertinent medical and medication information; (4) behavioral data; and (5) other pertinent treatment information. (d) If a person is admitted to a mental health facility on an emergency commitment or order of protective custody without being prescreened by the appropriate MHA, the facility will immediately notify the appropriate MHA. (e) In instances where an MHA screens a person who resides in another county, the screening MHA will immediately notify the MHA for the county of residence. sec.402.59. Transition Phase: ITP Review and Revision. (a) The decision to place a person on absence for trial placement or to discharge the person from a mental health facility is the professional responsibility of the facility treatment team. Criteria for discharge have been outlined in Chapter 402, Subchapter A, of this title (relating to Admissions, Transfers, Absences, and Discharges-Mental Health Facilities). In making this decision, consideration should be given to available community alternatives and the capacity of the MHA to provide appropriate levels of treatment and care. (b) Prior to the person being placed on absence for trial placement or discharge from a mental health facility, a treatment plan review focusing on transition issues should be conducted with participation from: (1) the mental health facility treatment team/coordinator; (2) the MHA representative; (3) the person served and/or his/her legal representative; (4) family members with the consent of the person served or his/her legal representative; and (5) other appropriate individuals requested by the person served or his/her legal representative. (c) The revised ITP must, at minimum, be accompanied by the "Transition Phase: ITP Review Phase (MHRS 4-6 form), which is referred to in sec.402.65 of this title (relating to Exhibits) as Exhibit D; the "Referral Instructions" (MHRS 4-7 form), which is referred to in sec.402.65 of this title (relating to Exhibits) as Exhibit E; and copies of all available pertinent current summaries and assessments. Copies of these documents will be mailed, faxed, or otherwise delivered to the appropriate MHA within 24 hours of discharge or absence for trial placement. (d) The revised ITP will identify the safest, most appropriate living situation that will be available to the person served if absent for trial placement or discharged. More than one living situation may need to be explored until one which best meets the needs and desires of the individual is located. Documentation in the person's record established by the MHA will reflect the discussion of the placement(s) with the person and indicate the person's reaction (acceptance or refusal) to the proposed placement(s). (e) If circumstances preclude joint meetings between the facility treatment team/coordinator and the MHA representative, consensus on the plan should be achieved via telephone prior to absence for trial placement or discharge. Such consensus between the facility and the MHA shall be documented in the person's record, including the names of the staff who developed the plan, by the MHA and documented in the revised treatment plan by the facility. The individual served (or legal representative, as appropriate) shall be invited to and involved in any such discussions. (f) The person served or legal representative, as appropriate, shall sign the revised treatment plan, or documentation of the reason for failure to sign shall be made. The plan shall include a statement that persons signing the plan understand that it and supporting documents will be sent to the MHA. (g) A person who is absent for trial placement is the responsibility of the MHA unless there is an interagency agreement which specifies services are to be provided by the facility. (h) A transition phase treatment plan review and revision is not necessary for persons on unauthorized departures from facilities. For nursing facility placements, the "Initial Aftercare Form," which is referred to in sec.402.65 of this title (relating to Exhibits) as Exhibit F, should be completed. (i) Within ten days of discharge or absence for trial placement, the facility shall mail, fax, or otherwise deliver a copy of the individual's discharge summary to the appropriate MHA. sec.402.60. Special Considerations for ITP Reviews for Minors During the Transition Phase. (a) Every effort shall be made to ensure participation of the parents/conservator of the minor in ITP reviews during the transition phase. If the parents/conservator are unable to attend in person, arrangements for attendance via teleconference shall be pursued. Other means of keeping the individual(s) informed, such as weekly phone calls, as appropriate, shall be considered. (b) Upon admission to services, an estimated length of stay shall be developed in order to ensure that sufficient time is permitted to complete transition planning for minors. (c) Under no circumstances shall a minor be discharged or absent for trial placement without the identification of a specific location where the minor will be located for trial placement or discharge. Although the minor may, in some circumstances, be discharged/absent for trial placement in the custody of the state, the treatment plan may not simply identify the state agency as the location of trial placement or discharge. (d) Minors age 16 and over who are voluntarily admitted to mental health services and request discharge must be afforded the procedures outlined in sec.404.157 of this title (relating to Rights of Persons Voluntarily Admitted to Inpatient Services). However, every effort shall be made to ensure that the minor is released to a specific individual or location. The treatment planning process shall address the issue of procedures upon the minor's request for discharge early in the minor's stay. sec.402.61. Absence for Trial Placement/Discharge and ITP Reviews During the Community Support Phase. (a) No later than 24 hours prior to an absence for trial placement or discharge, the facility will notify the MHA by telephone, fax, or written document of: (1) identifying data, including address; (2) legal status; (3) when and where the person will be located for trial placement or discharged; (4) pertinent medical information; (5) current medications; (6) behavioral data; and (7) other pertinent treatment information, including the individualized treatment plan. (b) The MHA, through its assigned continuity of services staff person, is responsible for implementing community-based aspects of the ITP from the time that absence for trial placement or discharge from the facility begins. (c) An ITP review must be conducted by the MHA within three weeks after the person is absent for trial placement or discharged from the facility. The ITP review requires the participation of the MHA representative, the person served and/or legal representative and: (1) family members with the consent of the person served or his/her legal representative; and (2) other appropriate individuals requested by the person served or his/her legal representative. (d) The ITP will be tailored according to treatment plan standards in the TXMHMR MH Community Services Standards and other applicable references. (e) Mental health and other health care services provided in the mental health facility which are needed in the community by the person served will be addressed in the ITP review. The plan will also identify residential, vocational, educational, social, financial, and other supportive services including case management, which are necessary and available to enhance or sustain the capacity of the person to function in the community. Involvement of family and/or community resources as support systems will be addressed. (f) The ITP will contain the person's date of admission to community-based services and a description of any needs the person may have that cannot be addressed by present treatment. (g) Should the person implicitly or explicitly refuse services, full documentation of this refusal must be made in the person's record to include staff actions to overcome the refusal and the person's response. The person's continuity of services staff person is responsible for ensuring that the person understands that continued services on an outpatient basis might prevent a relapse which may lead to readmission. (h) Thirty days after admission of the person to community-based services, the designated continuity of services staff person from the MHA will conduct a follow-up review of the ITP and community adjustment. This review must include a summary of contacts, interventions implemented, and the response of the person served to problems/goals/objectives. The review should also address any interventions which have not been implemented and the reasons why. Subsequent reviews are to follow TXMHMR MH Community Services Standards and other applicable standards. (i) As stipulated in recent negotiations and in the 1992 RAJ Settlement Agreement, the provision of community support services to persons discharged from a state hospital and reassigned to an MHA will self-monitor their community support services and provide a quarterly report to the RAJ coordinator. sec.402.62. Development of an Interim Plan for Services for Individuals Who Change MHAs. (a) When a person relocates to another county and seeks services from the MHA without prior knowledge of the original MHA, the MHA where the person is seeking services will promptly notify the original MHA. (1) The original MHA will forward information, including information outlined in TXMHMR MH Community Services Standards (standard 6.3.P.), to the new MHA within 5 calendar days of notification. The original MHA will maintain the person's case in open status until notified that the person has been admitted to services at the new MHA, or for 90 days, whichever comes first. (2) Upon admission, the new MHA arranges for the transfer of county of residence in CARE by the original MHA and develops an interim plan for services with the person requesting services. (3) Within 45 days following the development of the interim plan for services, an individualized treatment plan which is consistent with the basic elements of the previous ITP is developed. (b) When a person relocates to a new county with the knowledge of the original MHA, the original MHA maintains the person in open status until the new MHA admits to services, or for 90 days, whichever comes first. The following steps are followed to implement the transfer: (1) The assigned continuity of services staff person at the original MHA notifies the new MHA of the person's request for services, and discusses any clinically relevant information which might help the new MHA to meet the person's needs. (2) The assigned continuity of services staff person: (A) obtains an initial appointment with the new MHA; (B) provides the person with sufficient medication until the initial appointment date at the new MHA; and (C) forwards, within 5 calendar days, information pertinent to the person's treatment, including information outlined in TXMHMR MH Community Services Standards (standard 6.3.P.). (3) Upon admission, the new MHA arranges for the transfer of county of residence in CARE by the original MHA and develops an interim plan for services with the person requesting services. (4) Within 45 days following the development of the interim plan for services, an individualized treatment plan which is consistent with the basic elements of the previous ITP is developed. (c) When an individual requests relocation while residing in a state facility, the original MHA maintains the person's case in open status until notified by the new MHA that the person is admitted to services, or for 90 days, whichever comes first. To implement admission relocation, the following steps are followed: (1) Representatives from the original MHA and the MHA serving the county where the person wishes to reside meet with appropriate facility staff and the person prior to his or her release from the facility to develop a joint discharge plan. The meeting is documented in the person's record at the facility and at each affected MHA. The meeting may take place by phone if distance prevents meeting in person, with arrangements documented in the person's record at the facility and at each affected MHA. (2) All responsibilities for continuity of services and community support are assumed by the new MHA after the individual is admitted to services unless specified otherwise in a written agreement between the MHAs and the person. (3) Transfer of county of residence in CARE by the original MHA must be arranged for by the new MHA when the person is admitted to services. sec.402.63. Nursing Facility Placement/Community Support. (a) Prior to placement into a nursing facility it is recommended that representatives of the MHA and the nursing facility adopt a memorandum of understanding that establishes respective responsibilities for community support services. The MOU should address pertinent issues such as access to resident and records by MHA staff, frequency of contact, notification in the event of relocation, crisis, and/or death. (b) Community support assessments and services are required for all direct placements from mental health facilities into nursing facilities. (1) An initial community support assessment form shall be completed by mental health facility staff as a part of the ITP review within 24 hours of placement. A copy of the initial assessment form shall be forwarded to the MHA at the time of placement. Mental health facility staff should ensure and document that nursing facilities and MHAs involved in community support have received all critical clinical information at the time of placement. Mental health facility staff shall indicate in CARE that the individual is being discharged to or is absent for trial placement at a nursing facility. (2) Following placement, minimal community support assessments are to be completed by the MHA in accordance with the schedule outlined in the "Nursing Facility Community Support Assessment Schedule," which is referred to in sec.402.65 of this title (relating to Exhibits) as Exhibit B. A community support assessment form is completed at the time of each assessment, and the MHA documents assessment date and type of contact (face-to-face or telephone) in CARE. When individuals are absent for trial placement it is the responsibility of the mental health facility to indicate discharges in CARE as they occur. (3) In addition to conferring with the consumer and reviewing the nursing facility plan of care, the MHA may, in monitoring the nursing facility resident's condition, confer with the facility administrator, the director of nursing, the activity director, the attending physician, the MHA physician, family members, and other appropriate knowledgeable and interested persons to evaluate the consumer's total functioning. Consent shall be obtained from the person served or his/her legal representative prior to contacting family members and other persons not directly responsible for the person's clinical care. (4) MHA staff should document any problems or unmet needs in the areas of medication, physical, independent functioning, and adherence to the treatment plan. (5) If during the course of community support assessment it is established that the nursing facility resident is receiving substandard care or if it appears that the nursing facility is not adequately providing for the care of the individual, the community support worker shall report the situation to his/her supervisor, document the existence of the situation, and develop, document, and implement a plan of action, which may include increased assessments and advocacy and/or provision of technical assistance to improve service. Severe, recurrent, or unaddressed problems in nursing facility care or any instance of mistreatment, abuse or neglect, or injuries of unknown origin shall be reported to the complaint hotline operated by the Texas Department of Human Services (1-800-458-9858). (6) Community support services may be discontinued if the consumer meets MHA criteria for terminating services and they have been in placement a minimum of one year and have not been receiving psychoactive medication for a minimum of sixty days. When services are discontinued this action should be indicated in CARE. sec.402.64. Entry into Private Treatment Program of a Person Served. When a person is absent for trial placement or discharged to a private service system such as private inpatient care, private psychiatric services, private residential facility, or private intermediate care facility (e.g., nursing, ICF/MR), the MHA and facility staff shall review the ITP prior to the person's entry into the private treatment program. The review should also be conducted with the private provider's participation whenever practicable. After the person is discharged from the facility and enters the private treatment program, the MHA relinquishes its responsibility for community support services unless such services (e.g., outpatient services, psychosocial rehabilitation, case management, etc.) are negotiated in the ITP. If so, an additional ITP review shall be conducted in accord with sec.402.61 of this title (relating to Absence for Trial Placement/Discharge and ITP Reviews During the Community Support Phase). sec.402.65. Exhibits. Copies of the following exhibits are available from the Texas Department of Mental Health and Mental Retardation, P. O. Box 12668, Austin, Texas 78711. (1) Exhibit A-Non-Clinical Support Needs Assessment. (2) Exhibit B-Nursing Facility Community Support Assessment Schedule. (3) Exhibit C-Mental Health Services County of Residence Determination Worksheet. (4) Exhibit D-Transition Phase: ITP Review Phase (MHRS 4-6 form). (5) Exhibit E-Referral Instructions (MHRS 4-7 form). (6) Exhibit F-Nursing Facility Community Support Assessment Form. sec.402.66. References. Reference is made to the following: (1) Texas Health and Safety Code, sec.571.001, et seq; (2) Texas Health and Safety Code, sec.531.001, et seq; (3) Texas Health and Safety Code, sec.591.001, et seq; (4) Texas Health and Safety Code, sec.sec.571.001-571.005; (5) 42 Code of Federal Regulations, Part 2; (6) Chapter 401, Subchapter G, of this title (relating to Community Mental Health and Mental Retardation Centers; (7) Chapter 402, Subchapter A of this title, relating to Admissions, Transfers, Absences, and Discharges-Mental Health Facilities; (8) Chapter 403, Subchapter K of this title, relating to Client-Identifying Information; (9) TXMHMR Mental Health Record System; (10) TXMHMR MH Community Services Standards; and (11) 1992 RAJ Settlement Agreement. 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 January 21, 1994. TRD-9435060 Anne K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: February 11, 1994 Proposal publication date: November 9, 1993 For further information, please call: (512) 206-4516 Subchapter F. Continuity of Services-Mental Retardation Campus-based Components 25 TAC sec.sec.402.214-402.216 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.sec.402.214-402.216 of existing Chapter 402, Subchapter F governing continuity of services -mental retardation campus-based components, without changes to proposed text as published in the November 2, 1993, issue of the Texas Register (18 TexReg 7909). Sections 402. 217-402.219, which also were proposed for repeal, will not be adopted at this time. The process and requirements described in repealed sections involving the movement of individuals with mental retardation from state facilities to settings in the community have been incorporated into new sec. sec.402.311-402. 323 of Chapter 402, Subchapter I, concerning movement of individuals with mental retardation from department facilities which is adopted contemporaneously in this issue of Texas Register. A public hearing was held on November 30, 1993. No testimony was offered. No written comments were received. The repeals are adopted under Texas Health and Safety Code, Title 7, sec.532. 015, which provides the Texas Board of Mental Health and Mental Retardation Board with rulemaking authority. 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 January 21, 1994. TRD-9435054 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: May 1, 1994 Proposal publication date: November 2, 1993 For further information, please call: (512) 206-4670 Subchapter G. Determination of Least Restrictive Environment -Mental Retardation Services 25 TAC sec.sec.402.241-402.249 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeal of sec.402.241-402.249 concerning the determination of least restrictive environment-mental retardation services, without changes to the proposed text as published in the December 17, 1993, issue of the Texas Register (18 TexReg 9698). The repeal is a result of key provisions having been incorporated in the new Chapter 402, Subchapter I, concerning movement of individuals with mental retardation from department facilities, which is contemporaneously adopted in this issue of the Texas Register. No public comment was received. The repeals are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. 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 January 21, 1994. TRD-9435067 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: February 11, 1994 Proposal publication date: November 9, 1993 For further information, please call: (512) 206-4570 Subchapter I. Movement of Individuals with Mental Retardation from Department Facilities 25 TAC sec.sec.402.311-402.323 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.402.311-402.323 of Chapter 402, Subchapter I, concerning movement of individuals with mental retardation from department facilities. Sections 402.311, 402.313-402.319, and 402.21 are adopted with changes to the text as published in the November 2, 1993, issue of Texas Register (18 TexReg 7910). Sections 402.312, 402.320, 402.322, and 402.323 are adopted without changes and will not be republished. Both the proposal and the field review draft which preceded it were developed by a large task force which included representatives of private providers, MRAs, department facilities, and Central Office, and which met monthly for most of 1992. The task force also met in December 1993 to recommend revisions to the proposal in response to comment. The effective date of the subchapter will be delayed until May 1, 1994, to permit extensive training sessions which will be offered on a regional basis by Mental Retardation Services. In addition, MR Services plans to monitor the implementation of these provisions to collect data and information on whether the new processes described in the subchapter are working effectively and efficiently. If necessary, revisions to the subchapter will be recommended as a result of the monitoring. Throughout the subchapter seemingly small but significant changes in language have been made which reflect the department's intent that the individual should be involved in all aspects of decision-making regarding residential services. Appropriate revisions have been made in sec.sec.402.313 (definition of community living profile), 402.315(a) and new (h), 402.317(a) and (i)(3), 402.318(g), and 402.219(a). Also throughout the subchapter the term "community program" has been substituted for "community provider" and "home" in sec.sec.402.315(a)(4), 402.317(a), and 402.318(a). In sec.402.311, language has been modified to clarify that the subchapter addresses the role of the mental retardation authority (MRA) with respect to those residents of state facilities who have not been recommended for community living. The statutory authority which permits monitoring by MRAs of private providers serving individuals furloughed or discharged from facilities has been referenced. In sec.402.313, the definition of "actively involved" has been revised to delete a reference to "ability to communicate." The definition of "community program" has been revised to use "people first" language. A reference to The Accreditation Council has been corrected in the definition of "eligible provider." Clarifying language has been added to the definition of "interdisciplinary team" concerning the composition of the IDT. The definition of "MRA" has been modified to be consistent with the definition in the Texas Health and Safety Code, sec.533.035. In sec.402.314(b), the language has been revised to be more imperative. In subsection (c), the language has been modified to reflect that the department will provide consultation and support to the MRA which in turn will coordinate efforts with the provider to ensure continuing residential services. A new subsection (d) has been added to the section referencing a new notification and appeals process included in another department rule. Provisions have been reordered in sec.402.315 with subsection (e) of the proposal becoming a new subsection (k) with a subsequent relettering of the other subsections. A sentence has been added to the relettered subsection (e) that requires the facility to provide certain information to the MRA. In sec.402.316, subsections (c) and (d) have been reordered. A new paragraph (1) has been added to the new subsection (d) which clarifies the purpose of the community living profile. New language in renumbered paragraph (4) of that same subsection has been revised to clarify that either a determination of mental retardation or a comprehensive diagnosis and evaluation must have been performed, and that the date of assessment must be provided. To improve readability, portions of the stem in new subsection (d) have been deleted and the language incorporated into a new subsection (e). The remaining subsections have been relettered. Also in the interest of heightened readability, subsection (f) has been rewritten with the last phrase of the sentence being placed first. A sentence is added to subsection (f) which specifies that the community living profile is to be considered a referral only if it is specifically designated as such. In subsection (g), language has been revised to clarify that the MRA is to keep the facility informed of which eligible providers receive the community living profile. In subsection (h), the word "written" is deleted to allow a provider to make an oral request for additional information. A revision to subsection (i) requires that eligible providers must indicate an interest in serving a specific individual rather than any individual who fits certain criteria. The term "eligible provider" is substituted for "home" in subsection (j)(2). In subsection (k)(8), "parent" is replaced by the more specific "any legally authorized representative." Language has been added to sec.402.317(a) to clarify who may call an IDT meeting. In subsection (d), language has been added to clarify that participation in the IDT meeting by phone may be arranged if rescheduling is not feasible. A phrase has been added to subsection (i)(2) specifying that the MRA is responsible for necessary quality assurance activities including certification of the residence, if appropriate. A timeframe for completion of the arbitration process has been added elsewhere in subsection (i). Timeframes also have been added in sec.sec.402.318(a) and (c); where timeframes already were given the time has been specified as working or calendar days. In subsection (f) the term "direct care staff" is more accurately rendered as "direct contact staff." Clarifying language has been added in the same subsection that specifies that only the relevant portions of the community living plan need to be communicated to the physician, direct contact staff, consultants, and others who will be providing services in the community. A provision has been added in sec.402.319(a) specifying that case management activities will be provided in accordance with department policies and procedures. A grammatical error is corrected in paragraph (1) of the subsection. Clarification is provided in subsection (c) that a MRA staff person will conduct quarterly visits. In subsection (d), the MRA is charged with knowing a provider's certification or licensure status. A rewriting of subsection (e)(2) clarifies that "significant, unresolved problems" are to be reported by the MRA staff person to the appropriate certifying or licensing agency. In subsection (f), it is clarified that the progress note is to be included in the records of the MRA. The terms "screen" and "screening" are substituted for "assess" and "assessment" in subsection (i). In sec.402.321, a parenthetical phrase has been added for the benefit of those not yet familiar with the recodification of legislation affecting the department; the phrase specifies that the referenced chapters in the Texas Health and Safety Code are commonly known as the Persons with Mental Retardation Act. A reference to the TXMHMR Case Management Operating Instructions, 401-2, has been included. A public hearing was held on November 30, 1993. No testimony was offered. Written comments were received from: the parent of a state school resident; the Parent Association for the Retarded of Texas; Austin-Travis County MHMR; Dallas County MHMR Center; MHMR Services for Concho Valley; Advocacy, Inc.; The Texas Council of Community Mental Health and Mental Retardation Centers, Inc.; Concept 6 of Austin, a service provider from the private sector; and Rock House Inc. of Stephenville, also a service provider from the private sector. A commenter noted that references to "parent" in the field review draft of the rule had been changed to "legally authorized representative" and questioned whether a parent who was unable to afford the cost of obtaining a guardianship would no longer be permitted to advocate for an adult child residing in a state school. The department responds that an actively involved parent would never be prevented from advocating for an adult child; however, but explains that only the parent who has been court-appointed as the guardian of that adult child has the legal right to provide consent for that individual. A commenter noted that the rule only mentions home and community-based service (HCS) programs once and seems to emphasize the facility-based model of providing community-living settings. The commenter recommended the incorporation of language throughout the sections referencing both approaches. The department responds that language has been modified as requested in several instances. A commenter suggested training was needed for the staff of state facilities, MRAs, and private providers on the requirements of the rule and also on the change in emphasis for case managers. The department responds that regional training sessions are being planned. To ensure consistency in the presentation of information, a single team comprising department, MRA, and private sector staff will conduct each session. The effective date of the rule will be delayed until May 1, 1994, to accommodate the training. A commenter suggested that the rule is designed to move all residents from state facilities, and that such a policy is not in the best interests of those residents, their families, or of the State of Texas. The department disagrees with this characterization of the purpose of the rule and stresses that the provisions are in compliance with the Texas Health and Safety Code, Title 7, sec.592.013, which requires the department to ensure that individuals it serves live in the least restrictive environment appropriate to the individual's needs and abilities, and sec.594.011 which requires the department to transfer, furlough, or discharge a resident for whom the facility no longer represents the least restrictive environment. A commenter requested that the rule cite the statutory authority for the public sector monitoring of persons placed into a private sector service setting. The department responds that the appropriate citation has been added to sec.402.311. The same commenter recommended that the department continue to advocate for a "crisp process" for the movement of persons from the state schools to community- based settings so that service providers do not lose excessive revenue while holding a services "slot." Another commenter recommended that timelines should be established throughout the rule to ensure that unnecessary bureaucratic delays do not occur. The department responds to both comments that Mental Retardation Services will be monitoring the implementation of this subchapter closely to ensure that unnecessary barriers do not occur in the process for those state school residents who will be moving into community service settings. In addition, timelines have been specified for crucial junctures in the movement process. A commenter recommended the addition of a provision in the purpose section specifying that the subchapter discusses the role of the MRA with respect to residents of state schools who are not recommended for community living and with respect to the MRA's role on the facility IDT. Additionally, the commenter recommended the use of "coordinate" rather than "provide." A second commenter concurred with the latter suggestion. The department agrees and has made the revisions. A commenter recommended the deletion of subparagraph (D) under the definition of "actively involved" in sec.402.313, noting that "ability to communicate" does not relate to active involvement and that the other items accurately capture the nature of the relationship. Another commenter recommended the inclusion of language specifying that facility or MRA staff should not be considered an advocate for the individual. The department agrees with the first suggestion and has revised the definition accordingly, but declines to make the second change since the issue of who may be considered to be "actively involved" is adequately addressed in sec.402.314. A commenter recommended small but significant revisions in language in the definition of "community living plan" and "community program" (sec.402.313) and in several places throughout sec.402.315 and sec.sec.402.317-402.319 with the intention of emphasizing that the individual should be involved in all aspects of decision-making regarding living arrangements. The department agrees and has revised language accordingly. A commenter questioned why monitoring was eliminated from the list in the definition of "continuity of service activities" in sec.402.313 and noted that parents consider this an important activity. The department responds that item subparagraph (E) in the definition refers to visits by MRA staff following the move to the community and that the purpose and expectations of these visits are described in sec.402.319. In addition, the department explains that the term "monitoring" deliberately has been avoided in this subchapter to avoid confusion with visits made by staff of the agency or agencies administering standards with which the community setting must comply. Two commenters stated that foster homes, as listed in the definition of eligible provider, are not appropriate residential options for persons with mental retardation. The department disagrees and responds that foster homes may be viable options depending upon the specific needs of the individual being considered for movement to the community. A commenter requested clarification on whether a provider would be considered to be "eligible" if the individual were a minor and the provider only operated facilities for adults, or if the individual were female and the provider only served males. The department responds that the term is intended to delineate that group of providers who meet certain basic requirements and have entered into a memorandum of agreement (MOA) with the MRA. Determining whether the provider's services meet the needs of a specific individual is a separate issue which is only determined by the IDT, which will make the final recommendation based on all relevant factors. A commenter suggested revisions to the definition of "interdisciplinary team" with an explanation that the current definition places too much emphasis on MR professionals. The commenter also suggested that "actively involved" persons be included as part of the IDT. The department declines to make the revisions as requested and responds that the core of the definition, which specifies the membership of professionals and paraprofessionals, is prescribed by statute and is included to avoid confusion. The listing in subparagraph (A) -(F) is included, as it has been in department rules for many years, to further delineate the disciplines which need to be represented by the professionals and paraprofessionals on the team. An "actively involved" person who is not a "legally authorized representative" can take part in discussions and provide information about the individual, but has no legal standing to provide consent. A commenter questioned why the PRC is included as part of the IDT. The department responds that the option for the PRC's inclusion is mandated in the Texas Health and Safety Code, sec.596.008, in which the duties of the PRC are listed. In commenting on the definition of "legally adequate consent," a commenter stated that it is imperative that an individual's capacity be determined and appropriate measures taken to ensure legal representation prior to a recommendation for community services. The department acknowledges that this is a continuing issue that cannot be resolved within the context of this subchapter but must be addressed through legislation. A commenter requested that the department define "mental retardation authority" consistent with the language in the Texas Health and Safety Code, sec.533.035. The department agrees and has modified the definition accordingly. A commenter recommended that "support services" be added to the definition of "mental retardation services." The department concurs with the suggestion and has revised the language accordingly. In commenting on sec.402.314 governing philosophy and principles, a commenter noted that community-based ICF/MRs may utilize surrogate decision makers and questioned why state facilities could not do the same. The department responds that Senate Bill 1142 of the 73rd Legislature specifically excluded state facilities from accessing the surrogate decision-maker process established by the legislation. Four commenters expressed concerns with sec.402.314(c). They described the provision variously as ambiguous and as inappropriately placing what should be shared responsibility for the continuity of residential services on the MRA. The department has modified the language to reflect the concerns. A commenter questioned the meaning of "equal access" as used in sec.402. 315(c) and requested the inclusion of detailed procedures to be used by the MRA. The commenter further noted that the provision is in conflict with the "individual choice" principle expressed elsewhere in the subchapter. The department responds that the provision is as clear as possible given that each individual is unique. A commenter noted in conjunction with sec.402.315(d) that problems still exist with obtaining consent for those individuals unable to provide consent. The department acknowledges that this is a continuing issue that cannot be resolved within the context of this subchapter but must be addressed through legislation. A commenter suggested a reordering of the provisions within sec.402.315 to enhance readability. The department concurs and has revised the section accordingly. A commenter questioned the apparent assumption upon which old subsection (e) (2), now (k)(2), of sec.402.315 is based. Specifically, the commenter questioned why the appropriate living option for an individual should be presumed to involve moving from the facility, suggested that perhaps the individual should stay in the facility, and recommended that the reference to "identification . . . of services the individual would require to reside successfully in the community" should be deleted until a recommendation for community living has been made. The department responds that for many residents of state schools, the IDT does recommend remaining at the facility. This subchapter specifically addresses what should happen after a recommendation for movement has been made. A commenter requested the IDT meeting in sec.402.315(e), formerly subsection (f), be identified as the annual IDT meeting. Additionally, the commenter requested that the facility be required to provide the MRA with information regarding the individual about whom the IDT will be meeting. The department declines to implement the first suggestion, noting that an interim meeting of the IDT might be called to consider placement issues. Regarding the second suggestion, the department concurs and has added the suggested language. Regarding that same provision, another commenter stated that the IDT does not have the legal right to make a decision regarding a move to the community, but can only make recommendations. The department responds that the Texas Health and Safety Code, Title 7, sec.592.013, guarantees the right of an individual with mental retardation to live in the least restrictive environment appropriate to the individual's needs and abilities, and that sec.594.011 requires the department to transfer, furlough, or discharge a resident for whom the facility no longer represents the least restrictive environment. Two commenters stated that a guardian has the legal right to determine whether or not the individual who lacks capacity is to be present at IDT meetings. The department responds that the individual is guaranteed the right to be involved in treatment planning and refers the commenters to the Texas Health and Safety Code, sec.sec.592.033-592.035. A commenter disputed the concept of consensus recommendations by the IDT, stating that consensus is not necessary except in those cases where the individual lacks capacity and no legally authorized representative has been identified. The department responds that the IDT is responsible for making recommendations regarding treatment issues and that the Texas Health and Safety Code, sec.593.033, specifies that individualized plans are developed by appropriate specialists and that the individual and any legally authorized representative shall participate in the development of the plan. Regarding sec.402.316, one commenter stated that the principles articulated in sec.402.314 are not reflected in the provisions of this section. The commenter charged that the department gives only lip service to those statements. The department responds the provisions of this and all other sections were crafted to comply with the statements of philosophy and principles included in sec.402.314. A commenter questioned how the MRA is to assure that all eligible providers are included when community living options are reviewed as described in sec.402. 316(c). The department responds that the eligible providers referenced are those with whom the MRA has a signed MOA and presumably knows how to contact. The commenter further suggested that "include" in the second sentence be changed to "discuss." The department responds that the suggested change would add nothing to the meaning of the sentence and declines to make the change. A third commenter recommended that the last sentence of the subsection be deleted since it requires involvement by the whole IDT although a previous subsection required designation of specific facility staff for that purpose. The department responds that the sentence is necessary but has revised the language to make reference to the designation of facility staff required in the previous subsection. Another commenter recommended adding a final sentence requiring the review process to occur within 14 days after the MRA receives the community living profile. The department responds that the review is a general recounting of the types of living options generally available and that this occurs at the time of the IDT meeting or shortly thereafter. At this point, the community living profile would not yet have been sent to the MRA. A commenter stated that 14 days seemed an excessive length of time to document the limited information included in the community living profile and recommended seven days instead. The department responds that 14 days was recommended by the task force charged with developing the subchapter. The task force included representatives from MRAs, the private sector, and the department. A commenter recommended that the MRA be required to distribute the community living profile to eligible providers within 21 days after receipt. The department agrees that a timeframe is appropriate for this part of the process but, at the recommendation of the task force, has specified a 14 calendar day timeframe instead. Another commenter suggested in sec.402.316(f) that the order of phrases in the sentence be reversed to emphasize the importance of obtaining consent for the release of information. The department agrees and has revised the language accordingly. A commenter recommended revising the language in sec.402.316(g)(3) to specify that the MRA will keep the facility informed of which eligible providers are receiving profiles since the facility will not be distributing profiles on its own. The department concurs and has revised the language accordingly. A commenter suggested that to assure a timely review of profiles, providers should not be required to submit requests for additional information in writing. The department concurs and has revised sec.402.316(h) accordingly. A commenter stated that the process described in sec.402.316(k) is acceptable only if the individual desires the move from the facility; otherwise the process as described invalidates the principle of choice. The department recognizes that "choice" within the context of the IDT process of making decisions is not necessarily an absolute "choice" by an individual. Regarding sec.402.317(a), a commenter requested the inclusion of a provision stating that when the individual has visited a setting and decides to move on the basis of that visit, a similar setting would be considered acceptable if the specific home was no longer available. The department declines to make the revision because "similar" is too open to interpretation. The individual must be permitted to decide which specific setting is the most desirable. A commenter stated that requiring the MRA in sec.402.317(e) to "facilitate the development of a specific living arrangement not yet available" and to include such requests in the MRA's planning represents a significant fiscal implication. The department does not expect MRAs to develop programs without necessary financial resources. Unmet needs of consumers, however, must be considered in the MRA's short and long-range planning processes. Two commenters recommended that when an eligible provider is in provisional status, the regional monitor (rather than the MRA) shall verify the existence of life safety provisions and the lack of environmental concerns. The department responds that the TXMHMR Community Standards for Mental Retardation require the MRA to accomplish this. Two commenters suggested that timeframes be established for the arbitration process described in sec.402.317(i). The department concurs and has added appropriate language. One of the commenters also suggested that if a non-county of residence MRA refuses to consider the movement by an individual from a facility into a community setting in its service area, the individual's freedom of choice has been violated. The commenter suggested the move should take place and that arbitration should take place afterwards. The department responds that the issue of which MRA will handle the follow-along portion of continuity of services activities must be resolved before a move. Regarding sec.402.318, a commenter requested that when a recommendation for a specific setting has been made, seven days be permitted for the IDT to complete the community living plan. The department concurs with the need for a timeframe and has added language requiring completion of the plan within 14 calendar days. Another commenter suggested that the community living plan should specify the proposed date of the move. The department concurs and has revised language accordingly. Regarding subsection (c) of that same section, a commenter suggested that the regional monitor has no authority to approve or disapprove the setting except as required by provisions of the settlement agreement in Lelsz vs. Kavanagh. The department responds that the provisions of the settlement agreement have been determined to apply in all cases where a resident of a state school is moving into a community setting. A commenter stated that the requirement for a case manager in sec.402.319(a) replicates the responsibilities of other agencies. The department responds that subsection (d) of that section clarifies the role of the case manager by explicitly stating that the case manager is not responsible for monitoring for compliance with the certification standards of another agency. Another commenter commended the department on how well the case manager's responsibilities were clarified in subsection (d) but asked who was to be responsible for quality assurance. The department again refers to the language in (d) that clearly leaves responsibility for quality assurance monitoring to the certifying agency for that provider's facility. A commenter suggested revised language for subsection (e)(2) acknowledging that the MRA cannot make judgments as to whether a problem is related to certification standards of another agency. The department concurs and has revised the language as suggested. Regarding the same provision, another commenter suggested that this implies the MRA could terminate its relationship with the provider. The department responds that the MOA between the MRA and the provider outlines the process which should be followed if the relationship should be terminated. Two commenters stated that facility participation in the visits are duplicative and unnecessary. The department responds that facility participation is optional and would take place only if either the facility or MRA considered it to be in the best interests of the individual. Another commenter questioned where the progress note would be filed in the event of a joint visit. The department responds that the language has been revised to reflect that the MRA is to maintain the progress note. The sections are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation Board with rulemaking authority. sec.402.311. Purpose. The purpose of this subchapter is to establish criteria and procedures for: (1) mental retardation authorities (MRA) with respect to the individuals in facilities who are not recommended for community living and the role of the MRA staff with the facility interdisciplinary team; (2) MRAs to develop and/or coordinate services for individuals residing at facilities of the Texas Department of Mental Health and Mental Retardation who are or may be recommended for community living; and (3) ongoing monitoring of services provided to individuals with mental retardation who have moved into the community from department facilities consistent with the Texas Health and Safety Code, sec.592.011. sec.402.313. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Actively involved -Involvement with the individual which the IDT deems to be of a quality nature based on the following: (A) observed interactions of the person with the individual; (B) advocacy for the best interests of the individual; (C) knowledge of and sensitivity to the individual's preferences, values and beliefs; and (D) availability to the individual for assistance or support when needed. Capacity-A term consistent with provisions of the Texas Probate Code which is used to designate the ability of an individual with mental retardation to give legally adequate consent as determined by the interdisciplinary team. CARE-The department's Client Assignment and Registration System, an on-line data entry system developed to provide demographic and other data about individuals served by the department. Community living profile-The first section of the community living plan which is completed at any IDT staffing when a recommendation is made for movement by the individual to community living. The profile provides descriptive information as well as a list of information, recommendations, and preferences that must be considered when searching for a community home. Community living plan-A plan developed by the individual's interdisciplinary team (IDT) which documents the reasons why the individual is recommended for community living and makes specific recommendations regarding the services, programs, treatment needs, and arrangements needed when the individual moves to community living. The plan is followed until an individual habilitation plan (IHP) or support plan is developed with the individual in the community. Community program -Any community-based program, including private or publicly owned community services, that provides supervision, support, habilitative services, and/or residential services in which programs are designed to meet the individual's goals for community integration. Continuity of services activities-The activities designed to ensure coordination of services for an individual which include, but are not limited to: (A) development of the community living plan which addresses the individual's choices and needs; (B) joint community living planning; (C) exchange of information pertinent to service needs/training/support; (D) implementation of services which address the individual's choices and needs; and (E) visits to the individual following the move to the community. Department-The Texas Department of Mental Health and Mental Retardation. Deputy commissioner -The department's deputy commissioner for Mental Retardation Services. Eligible provider -For individuals moving from a facility, any provider of community-based residential mental retardation services or a home and community- based service (HCS) program located in the local service area of an MRA which has entered into a memorandum of agreement (MOA) with that MRA and which is: (A) TXMHMR certified; (B) deemed from certification by TXMHMR i.e. intermediate care facilities/mental retardation (ICF/MR), HCS, Texas Department of Protective and Regulatory Services (PRS) foster homes for children, and The Accreditation Council; or (C) in provisional status for such certification or licensure. The eligible provider requirements shall not apply to non-residential services except for HCS programs. Facility-Any state hospital, state school, or state center of the department which provides inpatient or residential services to individuals with mental retardation. Individual-A person with mental retardation who has received or is receiving inpatient or residential services provided by a facility and who has moved or is moving from a facility to a community program. Interdisciplinary team (IDT)-A group of mental retardation professionals and paraprofessionals who assess the individual's treatment, training, and habilitation needs and, with other concerned persons, make recommendations for services. This group functions as a facility team and includes: (A) the individual; (B) the legally authorized representative of an individual who lacks capacity; (C) as specified by the facility, persons who are professionally qualified, certified, or both, in various professions with special training and experience in the diagnosis, management, needs, and treatment of individuals with mental retardation; (D) persons who are directly involved in the delivery of mental retardation services to the individual; (E) representative(s) of the appropriate MRA; and (F) member(s) of the facility's public responsibility committee (PRC), if requested by the individual with capacity, a legally authorized representative, or the PRC. Legally adequate consent-A term consistent with provisions of the Texas Health and Safety Code, Title 7, sec.591.006 concerning consent obtained from an individual with mental retardation which is legally adequate when each of the following conditions has been met: (A) legal status: The individual giving the consent is of the minimum legal age and has not had a guardian appointed to manage personal affairs by an appropriate court of law; (B) comprehension of information: The individual giving the consent has been informed of and comprehends the nature, purpose, consequences, risks, and benefits of and alternatives to the procedure, and the fact that withholding or withdrawal of consent shall not prejudice the future provision of care and services to the individual with mental retardation; and (C) voluntariness: The consent has been given voluntarily and free from coercion and undue influence. Legally authorized representative-The parent of an individual who is a minor, the guardian of an individual who has been determined by a court to lack capacity, or the managing conservator of an individual. Local service area-A geographic area composed of one or more Texas counties delimiting the population which may receive services from an MRA. MRA (mental retardation authority)-The entity designated by the commissioner to plan, facilitate, coordinate and provide services to individuals with mental retardation in a particular local service area of the state as are required to be performed at the local level by state law and the department. Unless otherwise specified, this is the MRA serving the individual's county of residence. Mental retardation services-All services concerned with research, prevention, and the detection of mental retardation and all services related to the education, training, habilitation, support, care, treatment, and supervision of individuals with mental retardation, except the education of school-age individuals that the public educational system is authorized to provide. Parent-The natural or adoptive mother or father of the individual, but not a mother or father whose parent-child relationship has been legally terminated. Regional monitor -An employee of TXMHMR Central Office who: (A) is responsible for approving living situations for individuals moving from facilities to community programs; (B) conducts periodic and follow-up reviews; and (C) serves as a technical resource to MRAs. TXMHMR service delivery system-All campus-based facilities and community- based services operated or contracted for by the department. sec.402.314. Philosophy and Principles. (a) Each individual receiving residential services through the TXMHMR service delivery system is entitled to choice and decision-making authority. To make choice possible and relevant, the individual requires supports, experiences, and options. If an individual cannot communicate preferences related to activities and expectations or does not choose to communicate, the questions are asked of those actively involved persons (family members, guardians, friends, and/or those who provide personal support) who spend the most time with the individual and are sensitive to and aware of how the individual expresses likes and dislikes, choices, preferences, and desires. (b) The following principles support choice and decision-making by the individual. Each facility and MRA is required to put these principles into practice as they carry out continuity of services activities. (1) The choices, preferences, expectations, likes and dislikes of the individual and any legally authorized representative are the dominant force behind all decisions. (2) Individuals making choices are entitled to training, counseling, and opportunities to experience and to try the options involved in making choices. (3) The same range of options for residential and support services that are available to all people are made available for individuals receiving services from the TXMHMR service delivery system. (4) Visits and interviews with the individual, a legally authorized representative, and other actively involved persons, as well as observations, are the primary basis for collecting data and information to determine if the individual's choices and needs are being met across time and services. (c) The MRA, with consultation and support of the department, shall assume the responsibility to coordinate with the provider to ensure continuing residential services, if needed and requested, to any individual with mental retardation who was in a facility and who is discharged from a community home. (d) Each MRA shall follow procedures outlined in sec.401.164 of this title (relating to Notification and Appeals Process). sec.402.315. General Provisions. (a) The department shall compile the following lists and provide them to the MRA: (1) quarterly list of all individuals from the MRA's local service area who are diagnosed as having mental retardation and who are residing in facilities with each individual's level of care, I.Q., adaptive behavior level (ABL), mobility status, health status, behavior management status, hearing and vision status, and whether the individual has been recommended for community living; (2) quarterly list of all individuals from the MRA's local service who have moved to community living since August 7, 1991, with the location of the home; (3) quarterly list of all individuals from other MRAs who have moved into the local service area of the MRA since August 7, 1991, with the location of the home; and (4) twice annually a list of all TXMHMR certified or deemed status community program and those pending TXMHMR certification or deemed status. (b) Before the initiation of movement activities or referrals to a residential community program not operated by the MRA, the MRA and the provider of residential community services shall enter into a memorandum of agreement (MOA) which is described in sec.402.322 of this title (relating to Exhibits) as Exhibit A. Those providers are eligible providers. (1) A single MOA may cover more than one eligible provider operated by a company in the MRA's local service area. (2) If the MRA chooses to use a substitute MOA, it must be approved by the deputy commissioner or designee. (3) The MRA shall enter into an MOA with all providers which wish to provide services to individuals served by the MRA and which meet the requirements outlined in the MOA. Disputes as to whether the provider meets the requirements shall be submitted for arbitration to the deputy commissioner or designee. (c) The MRA shall have procedures in place to ensure that all eligible providers have equal access to information about individuals recommended for community living. (d) The MRA and facility shall have and implement procedures which ensure that the necessary consents for release of information to eligible providers and providers of non-residential community services are obtained as described in Chapter 403, Subchapter K of this title (relating to Client-Identifying Information). (e) A staff person from the MRA shall be invited to attend the individual's IDT meetings. If the MRA staff person is unable to attend the meeting, the MRA shall ensure that the facility has the information needed to assist the IDT in making a decision regarding community living. The facility shall ensure that the MRA receives information regarding services the individual would need in the community and the individual's preferences and needs. (f) The individual, regardless of capacity, always has the right to be present and to participate in IDT meetings and administrative hearings. The desires and aspirations of the individual, regardless of capacity, shall be the dominant factor considered when recommendations are made concerning movement. (g) Communication devices and techniques (including the use of sign language) shall be utilized, as appropriate, to facilitate the individual's involvement in the process and to ensure that the individual is able to make those desires and aspirations known. (h) The individual with capacity has the right to exclude a parent or other actively involved persons from participation in: (1) meetings of the interdisciplinary team (IDT) at which movement by the individual is to be discussed, and (2) all review and appeal procedures. (i) If the individual with capacity wishes to include a parent or other actively involved persons, facility staff shall encourage the attendance and participation by those persons. Every reasonable attempt shall be made to schedule meetings at a time that is convenient for those persons. (j) When the IDT fails to reach consensus while meeting as described in sec.402. 316 of this title (relating to Recommendation for Community Living or in sec.402.317 of this title (relating to Selecting a Community Living Option), the review and appeal processes described in Chapter 402, Subchapter H of this title (relating to Placement Appeals Procedures-Mental Retardation Services) shall be followed. (k) The MRA and the facility shall have and implement procedures which ensure that necessary planning-linking activities between the MRA, facility, and involved community resources (both public and private) occur to assure that individuals residing in the facility move to an appropriate living option. (1) For an individual not currently recommended for community living, planning-linking activities shall include: (A) evidence that the MRA incorporates the individual's choices and needs into ongoing agency service planning for future consideration; (B) identification by the facility interdisciplinary team (IDT) of services the individual would require to reside successfully in the community; and (C) monitoring by the MRA of the status of such services, especially those being developed or yet to be developed. (2) For an individual recommended for community living, a designated MRA staff person shall: (A) obtain relevant information regarding the individual's status and progress through visits and interactions with the facility currently responsible for provision of services; (B) communicate information regarding eligible providers, both public and private, and any other providers of appropriate non-residential community services to the facility IDT currently responsible for provision of services; and (C) communicate relevant information to eligible providers. sec.402.316. Recommendation for Community Living. (a) When the IDT makes a recommendation that an individual should move into the community, the recommendation shall be made: (1) using information from the mental retardation authority (MRA) regarding all applicable community resources; and (2) as described in the department's rules governing placement appeals procedures (Chapter 402, Subchapter H) in sec.402.286 of this title (relating to Placement Recommendation by Interdisciplinary Team) and in sec.402.287 of this title (relating to Appeal to the Placement Review Team. (b) When a recommendation for community living is made, the IDT shall designate specific staff members at the facility and the MRA shall designate its own staff members. The staff members shall cooperate and coordinate in researching community living options and report their recommendations to the IDT. (c) During the IDT meeting or immediately thereafer, the MRA shall solicit the thoughts, opinions, choices, and desires of the individual and any legally authorized representative when reviewing the various community living options. The review shall include all eligible providers which have contacted the MRA regarding available residential services and vacancies and any other providers of appropriate non-residential community services. The MRA also shall obtain input regarding all appropriate community resources from the facility staff designated as described in subsection (b) of this section. (d) A community living profile, i.e. the first section of the community living plan which is described in this subchapter as Exhibit B, shall be completed by facility staff at the IDT meeting when a recommendation for community living is made. The community living profile shall: (1) be used to determine which eligible providers are interested in providing services for the individual; (2) outline any preferences the individual and any legally authorized representative has about community living (e.g., type of home, geographic preferences, vocational or habilitation services); (3) outline any medical needs to be communicated to the physician who will be providing care in the community, and any other special needs to be communicated to community-based service providers; and (4) indicate that either a determination of mental retardation has been conducted since September 1, 1993, as described in Chapter 405, Subchapter D of this title (relating to Determination of Mental Retardation and Appropriateness for Admission to Mental Retardation Services) and the date of such, or a comprehensive diagnosis and evaluation before September 1, 1993, and the date of such. (e) The community living profile shall be forwarded to the MRA within 14 calendar days of the IDT meeting or placement review team meeting, whichever is appropriate. The placement review team process is described in sec.402.287 of this title (relating to Appeal to the Placement Review Team). (f) Provided that the appropriate consents for release of information are obtained as described in Chapter 403, Subchapter K of this title (relating to Client Identifying Information, the MRA shall send the community living profile to all eligible providers and to any providers identified by the individual and any legally authorized representative within 14 calendar of receipt of the community living profile from the facility IDT. Only if the individual, any legally authorized representative, and/or the IDT specifically designates the community living profile to be a referral shall it be treated as such. (g) The MRA may send the community living profile to eligible providers and any other providers of appropriate non-residential community services in the local service areas of other MRAs if: (1) appropriate services are not available in the MRA's local service area; (2) the individual or any legally authorized representative desires services outside the MRA's local service area; and/or (3) the MRA serving that area keeps the facility informed of which eligible providers are receiving the profiles. (h) If additional information (e.g., assessments or a report from the annual planning meeting) is required, the community program provider shall submit a request to the facility. The facility shall compile the information and forward it to the community program provider. (i) Eligible providers shall notify the MRA in writing if they are interested and are available to provide services to a specific individual. (j) Once all community living options are known to the MRA, they shall be reviewed with the individual, any legally authorized representative, and designated facility staff. (1) The individual with capacity or a legally authorized representative shall choose which community living options shall be considered in greater detail by the IDT as described in sec.402.317 of this title (relating to Selecting a Community Living Option). If needed, the regional monitor or other facility staff may assist the individual and any legally authorized representative to make the decision. (2) The ability of the eligible provider to meet the needs of the individual shall provide the basis of the decision. (k) If the individual with capacity or a legally authorized representative does not make a choice of which options are to be considered in greater detail by the IDT, the staff designated by the IDT as described in subsection (b) of this section shall make the decision based on the following: (1) characteristics of the home best suited for the individual; (2) medical and health care needs; (3) social relationships and support network; (4) emotional and behavioral factors; (5) transportation; (6) financial; (7) employment, vocational, and educational; and (8) any other needs as outlined by the individual, any legally authorized representative, the IDT, and as identified by the MRA staff. (l) The MRA shall coordinate with the facility to assist the individual and any legally authorized representative in making arrangements for preselection visits to proposed homes. (1) If overnight visits are utilized, the facility first shall assure that staff at the proposed home receive the following prior to or at the time of the preselection visit: (A) identifying data; (B) the individual's legal status; (C) the individual's determined disability(ies); (D) pertinent medical/medication information; (E) adequate medication supply; (F) behavioral data; (G) fiscal resources; (H) clothing, personal items, and adaptive equipment; and (I) other pertinent treatment information. (2) If a proposed home is outside the local service area of the individual's MRA, that MRA shall notify the appropriate MRA of the planned visit. sec.402.317. Selecting a Community Living Option. (a) An IDT meeting shall be scheduled to approve a community program with the individual as described in rules of the department governing placement appeals procedures in sec.402.288 of this title (relating to Specific Alternate Placement Recommendation by IDT). (1) The meeting may be called by the individual with capacity, any legally authorized representative, a facility IDT staff member, the case manager, or other designated MRA staff person. (2) If an MRA staff person, preferably a case manager, has not been assigned already by the MRA, this shall be done prior to scheduling the meeting. (b) The following people shall be invited to the meeting: (1) individual; (2) any legally authorized representative; (3) staff from the MRA serving the individual's county of residence; (4) the MRA which serves the local service area where the individual may be moving, if different; (5) staff of the program where the individual may be moving; (6) facility IDT staff; and (7) other actively involved persons. (c) For school-aged individuals, a representative of the local independent school district in which the home is located shall be notified by the MRA of the meeting and encouraged to participate and to assist in coordinating educational services for the individual. (d) If circumstances preclude attendance in person by any of those invited and it is not feasible to reschedule, that person or persons may participate via telephone. (e) The individual with capacity or any legally authorized representative may: (1) choose the proposed home; (2) choose a home with no vacancies and be placed on a waiting list for that home if the provider agrees; or (3) request the MRA to facilitate development of a specific living arrangement not yet available. Requests for alternatives not available shall be used in the MRA's planning processes to develop and/or expand services. (f) If there is no consensus by the IDT concerning the choice made by the individual with capacity or any legally authorized representative as described in subsection (e) of this section, then the IDT shall notify the head of the facility within one working day of the need for an administrative hearing as described in Chapter 402, Subchapter H of this title (relating to Placement Appeals Procedures-Mental Retardation Services). (g) If the provider of residential services is eligible but is in provisional status regarding certification or licensure the MRA shall verify that there are adequate life safety provisions and that there are no environmental concerns. (h) The facility shall send the following to the regional monitor: (1) report from the last annual planning meeting of the IDT; (2) most recent psychological, social, medical, and vocational/educational assessments; (3) report from any interim meetings of the IDT which addressed community living issues not addressed at the annual planning meeting; and (4) the community living profile. (i) If a home is being considered which is outside the local service area of the individual's county of residence MRA, the following shall occur: (1) The county of residence MRA shall inform the receiving MRA where the community home is proposed that the individual is considering moving into the area. (2) The receiving MRA shall be asked to assume responsibilities for arranging the community living option, necessary quality assurance activities including certification of the residence where appropriate, monitoring, and case management. If the receiving MRA agrees then the county of residence designation shall be changed when the individual moves. If the change is time limited, a MOA shall be executed as described in sec.402.320 of this title (relating to Guidelines for Changing County of Residence). (3) If the receiving MRA does not want to be a part of the community living option and the county of residence MRA wants to continue to seek movement by the individual to that location, the MRAs shall submit the issue to the deputy commissioner or designee for arbitration. (A) Each MRA shall submit the reasons for its position in writing to the deputy commissioner with copies to the other MRA and to the individual and any legally authorized representative. (B) The individual and any legally authorized representative shall be asked to submit their opinions to the deputy commissioner regarding the disagreement. (C) The county of resident MRA shall inform the individual, any legally authorized representative, and the facility of the final agreement. (D) The arbitration process shall be completed within 14 days of the issue being submitted to the deputy commissioner. (j) The current facility shall inform any new facility that may serve the individual of staff experiences and recommendations regarding how best to serve the individual. (k) All MRAs and facilities that are involved must be notified and invited to participate in any planning meeting(s) for the individual. sec.402.318. Planning Moves Into the Community. (a) When a recommendation of a specific community program for the individual in the community has been made as described in rules of the department governing placement appeals procedures in sec.402.288 of this title (relating to Specific Alternate Placement Recommendation by IDT) or by the hearing officer as described in sec.402.293 of this title (relating to Final Decision), the facility IDT shall meet within 14 calendar days to complete the community living plan which shall include: (1) a statement of the individual's choices and needs; (2) a list of supports and services necessary for the individual to succeed in the chosen home and persons identified who will facilitate such; (3) identification of the MRA case manager assigned to provide continuity of services activities as well as a facility contact person; (4) all current physician orders and treatments, including rationale for all medications prescribed and dispensed by the facility, and amount dispensed which will be continued after movement; (5) the name of the physician or health care entity that will become the individual's primary health care provider; (6) documentation that the individual and any legally authorized representative has had an opportunity to participate in the development of the community living plan with notations concerning their reactions; (7) statement that the individual and any legally authorized representative has been counseled on the relative advantages and disadvantages of the proposed home with concurrent documentation of their opinions, ideas, and suggestions; (8) the reason for the move to a community home; (9) a brief summary of findings, events, and progress during the period of service to the individual; (10) current diagnoses; (11) proposed date of the move to the home; (12) any referrals made or instructions provided to and/or for the individual at reassignment, to include a copy of the community living plan, if applicable, naming the services and/or supports the individual requires in the new home and the agency(ies) responsible for provision; and (13) the signatures of all participants. (b) The facility shall send copies of the completed community living plan to the: (1) regional monitor; (2) MRA county of residence; (3) provider; and (4) the individual with capacity or any legally authorized representative. (c) As soon as possible, but in no later than 14 calendar days after receiving the community living plan, the regional monitor shall visit the proposed setting, if necessary, and notify the MRA of any concerns and whether the home is approved. (d) The MRA shall arrange for department funding, if applicable. (e) The MRA shall notify the facility when the setting is approved. The facility shall ensure the following: (1) a 30-day supply of prescribed medications has been provided; (2) individual's personal belongings are prepared to accompany the individual; (3) all necessary financial arrangements and agreements are addressed; (4) appropriate special instructions for the individual or others are furnished in writing and orally prior to or at the time of departure; (5) the records described in subsection (i) of this section shall accompany the individual unless the movement is to the individual's home; and (6) the appropriate Social Security office has been notified of the individual's impending move. (f) The MRA shall maintain evidence that the physician, direct contact staff, consultants, and others who will be delivering services to the individual are informed of the relevant portions of the individual's community living plan prior to provision of service. (g) The MRA shall coordinate and ensure satisfactory transition by the individual to the community-based option through involvement of the facility staff in the process. The MRA shall assure that staff from the MRA and/or facility accompany the individual to the community home (if other than the family's home) and shall remain there for a period of time which is determined to be necessary for satisfactory transition. The case manager shall arrange to meet the individual at the home as soon as possible. (h) If an individual on regular admission to a facility is placed in a setting outside the local service area of that facility, then 180 calendar days after moving to a community home the individual shall be reassigned to the facility serving that area. Written notification shall be sent by the original facility to the individual or legally authorized representative, case manager, and the facility serving the area. (i) The following records, as applicable, shall be provided by the facility and shall accompany the individual: (1) a copy of birth certificate, if required by the community services provider; (2) copies of any legal documents, if required by the community-based facility; (3) a copy of the individual's Social Security card; (4) a photograph current within one year; (5) a copy of the immunization record; (6) a copy of the height and weight record; (7) a copy of the seizure record; (8) a copy of the treatment and diet record; (9) a copy of the most recent medical and dental examination; (10) copies of all laboratory tests conducted within the past 30 calendar days and any additional significant reports made within the past year (including, X- ray, EEG, and EKG); (11) copies of the physician's progress reports; (12) a copy of the social history and the most recent psychological examination; and (13) copy of Medicaid, Medicare, or third-party insurance cards, if available; (14) nursing care plan; and (15) any other data requested by the community program. (j) Prior to or at the time of movement, the facility physician shall prepare a letter summarizing the highly relevant medical information to be given to the new physician or health care entity that will be providing services to the individual in the community. Whenever possible, the facility physician shall communicate directly with the new physician. (k) The facility shall transmit the completed community living plan and any other necessary information regarding treatment needs to the physician who will provide care in the community. The MRA county of residence shall document that the information is sent. (l) The MRA shall notify the regional monitor within three working days of the date of the move. (m) The individual shall be reassigned in CARE by the facility to the serving MRA. If necessary, the county of residence shall be changed at this time. sec.402.319. Requirements for Continuity of Service Activities Following Movement. (a) Case management will be provided in accordance with TXMHMR policy and procedures in the Case Management Operating Instructions.The MRA is responsible for assigning a case manager to maintain an ongoing relationship with the individual who moves into the community to determine if: (1) there are factors which may preclude the successful attainment of the individual's choices and needs relative to quality of life; (2) the individual's choices and needs that affect the placement are met in the community setting; (3) the individual continues to be eligible for the setting; and (4) the home continues to be appropriate for the individual. (b) The MRA may request a case management waiver in accordance with TXMHMR procedures. (c) The case manager shall visit the individual as frequently as needed, but no less frequently than monthly. If the individual has an approved waiver, the visits shall be made quarterly by the MRA staff person designated in the waiver request. (d) The MRA shall use visits and interviews with the individual and others, as well as observations, as the primary basis for collecting data and information to determine if the individual's choices and needs are being met across time and services. It is not the MRA's responsibility to monitor the facility to see if it meets the certification standards of another agency; however, it is the MRA's responsibility to know a provider's status regarding certification or licensure. (e) Visits shall be documented on progress notes by the MRA and pertinent information shall be shared with the provider and, if needed, the assigned facility and the MRA staff administratively responsible for community living activities. (1) Significant problems not resolved during the visit shall become a part of the MRA's system for problem analysis and monitoring. (2) The MRA shall maintain evidence of problem correction. Significant, unresolved problems related to the services for an individuals shall be reported by the MRA to the appropriate certifying or licensing agency for resolution. (3) Concerns regarding rights violations or abuse and neglect issues shall be reported in accordance with applicable laws and regulations. (f) Visits shall be accomplished with the participation from the facility if considered by either party to be in the best interest of the individual. If the facility and the MRA accomplish this process together for the individual, it shall be a joint visit resulting in one progress note in MRA records and one reporting process. (g) Facility staff shall be invited to participate in the 30-day staffing and shall be available for on-going consultation and information. (h) The regional monitor shall conduct a 30-day review, a 90-day review, and annual reviews, with follow-up reviews as necessary. (i) Annually the MRA shall screen the individual using the Case Management Screening format. The information shall be included in the individual's annual planning staffing. sec.402.321. References. Documents referenced in this subchapter include: (1) Texas Health and Safety Code, Title 7, Chapters 591-596 (Persons with Mental Retardation Act; (2) Texas Administrative Code, Title 40, Part I, Chapter 27, concerning Texas Intermediate Care Facility/Mental Retardation (ICF/MR) Standards for Participation (rules of the Texas Department of Human Services); (3) Chapter 401, Subchapter G of this title (relating to Community Mental Health and Mental Retardation Centers); (4) Chapter 402, Subchapter H of this title (relating to Placement Appeals Procedures-Mental Retardation Services; (5) Chapter 403, Subchapter K of this title (relating to Client-Identifying Information); (6) Chapter 405, Subchapter D of this title (relating to Determination of Mental Retardation and Appropriateness for Admission to Mental Retardation Services); (7) Chapter 410, Subchapter A of this title (relating to Public Responsibility Committees); and (8) TXMHMR Case Management Operating Instructions, 401 -2. 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 January 21, 1994. TRD-9435055 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: May 1, 1994 Proposal publication date: November 2, 1993 For further information, please call: (512) 465-4670 Chapter 403. Other Agencies and the Public Subchapter G. Department Procedures for Outreach Programs 25 TAC sec.sec.403.201-403.213 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeal of sec.403.201-403.213, concerning the department procedures for outreach programs, without changes to the proposed as text published in the September 10, 1993, issue of the Texas Register (18 TexReg 6075). The provisions of the subchapter are no longer applicable to the community- based services of departmental facilities. No public comment was received. The repeals are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. 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 January 21, 1994. TRD-9435064 Ann K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: February 11, 1994 Proposal publication date: December 7, 1993 For further information, please call: (512) 206-4670 Chapter 407. Internal Facilities Management Financial Services 25 TAC sec.407.21 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.407.21, concerning financial services without changes to the proposed text as published in the October 19, 1993, issue of the Texas Register (18 TexReg 7284). The rrepeal deletes language associated with previously amended sections. No public comment was received. The repeal is adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. 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 January 21, 1994. TRD-9435066 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: February 11, 1994 Proposal publication date: November 9, 1993 For further information, please call: (512) 206-4516 Chapter 409. Medicaid Programs Subchapter E. Home and Community-based Services-OBRA 25 TAC sec.sec.409.156, 409.166-409.173 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts amendments to sec.409.156 and sec.409.166, and new sec.sec.409.167-409.172, concerning home and community -based services-OBRA (HCS-O), without changes to the proposed text as published in the December 7, 1993, issue of Texas Register (18 TexReg 9082). The amendments and new sections were adopted on an emergency basis in the September 17, 1993, issue of the Texas Register (18 TexReg 6276). The amendments update financial eligibility criteria and spousal impoverishment provisions consistent with the provisions of the waiver; with the current Appropriation Act, Rider 14, Code of Federal Regulations, Part 441, sec.441.13, which requires the department to maximize collection of federal funds; and with the spousal impoverishment provisions of the Social Security Act, sec.1924, and as specified in the Medicaid State Plan. The new sections provide for corrective action and provider sanctions. No written comments were received on the amendments and new sections as proposed. The amendments and new are adopted under the Health and Safety Code, sec.532. 015(a), which provides the Texas Mental Health and Mental Retardation Board with rulemaking powers; and under the provisions of Texas Civil Statutes, Article 4413(502) sec.16, which provide the Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 21, 1994. TRD-9435050 Ann K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: February 11, 1994 Proposal publication date: November 26, 1993 For further information, please call: (512) 206-4516 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part X. Texas Water Development Board Chapter 353. Introductory Provisions General Provisions 31 TAC sec.353.14 The Texas Water Development Board adopts new sec.353.14 concerning memorandum of understanding between Texas Water Development Board and Texas Antiquities Commission, without changes to the proposed text as published in the December 7, 1993, issue of the Texas Register (18 TexReg 9087). The new section concerns the adoption by reference of a Memorandum of Understanding (MOU) between the board and the Texas Antiquities Committee, through the Department of Antiquities Protection. The MOU is adopted to allow the board to conduct surveys for archeological sites on lands which may be impacted by proposed public works projects that are funded in whole or in part by the board. No comments were received regarding adoption of the new section. The new section is adopted pursuant to the Texas Water Code, sec.6.101, which gives the board the authority to adopt rules necessary to carry out its powers and duties. 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 January 21, 1994. TRD-9435029 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: February 11, 1994 Proposal publication date: December 7, 1993 For further information, please call: (512) 463-7847 Chapter 379. Advisory Committee 31 TAC sec.sec.379.1-379.7 The Texas Water Development Board adopts new sec.sec.379.1-379.7 concering advisory committees, without changes to the proposed text as published in the December 17, 1993, issue of the Texas Register (18 TexReg 9699). The new rule defines the purpose and task, the membership, the method of reporting, and the expiration date of each of the advisory committees utilized by the Board. No comments were received regarding adoption of the new sections. The new sections adopted pursuant to the Texas Water Code, sec.6.101, which gives the board the authority to adopt rules necessary to carry out its powers and duties, and Texas Civil Statutes, Article 6252-33, which requires the board to adopt rules for advisory committees to the board. This agency hereby certifies that the section as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. 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 January 21, 1994. TRD-9435028 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: February 11, 1994 Proposal publication date: December 17, 1993 For further information, please call: (512) 463-7847 Part XIX. Texas Alternative Fuels Council Chapter 655. Administration Suchapter A. Council Practices 31 TAC sec.sec.655.1, 655.5, 655.10, 655.15, 655.20, 655.25, 655. 30, 655.35, 655.40, 655.45, 655.50, 655.55, 655.60, 655.65, 655.70, 655.75, 655.80, 655.85, 655.90, 655.95, 655.100, 655.105, 655.110 The Alternative Fuels Council adopts new sec.sec.655.1, 655.5, 655.10, 655. 15, 655.20, 655.25, 655.30, 655.35, 655.40, 655.45, 655.50, 655.55, 655.60, 655.65, 655.70, 655.75, 655.80, 655.85, 655.90, 655.95, 655.100, 655.105 and 655.110, concerning the procedural functioning of the council and the application review and funding processes. Sections 655.5, 655.55, 655.65, 655. 80, 655.85 and 655.100 are adopted with changes to the proposed text as published in the September 21, 1993, issue of the Texas Register (18 TexReg 6426). Sections 655.1, 655.10, 655.15, 655.20, 655.25, 655.30, 655.35, 655.40, 655.45, 655.50, 655.60, 655.70, 655.75, 655.90, 655.95, 655.105 and 655.110 are adopted without changes to the proposed text and will not be republished. The Alternative Fuels Council was created by the 73rd Legislature by adding Subchapter J to Chapter 113 of the Texas Natural Resources Code. The council is charged with the responsibility of coordinating a comprehensive statewide program to support the use of environmentally beneficial alternative fuels in vehicle fleets owned by state and local governments and political subdivisions. By exerting leadership in changing the composition of governmental fleets, the council can encourage and assist the shift to alternative fuels in private fleets. Changes in vehicle fleet composition are mandated for many fleets, especially those in Texas' major metropolitan areas, under both state and federal law. The council's programs are intended both to accelerate the transition to alternative fuels and to ease the financial impact of the transition on state and local governments. The availability of alternative fuels from Texas sources and the manufacturing capacity of Texas firms in the alternative fuel and vehicle fields enhance the broad goals of the council-to develop and diversify the state's economy, eliminate unemployment or underemployment, and develop and expand transportation and commerce in the state. This enumeration of public purposes is not intended to be an exclusive list of the public purposes served by the council. The council, which is composed of the commissioner of the General Land Office, the three commissioners of the Railroad Commission of Texas, the chairman of the General Services Commission and the chairman of the Texas Natural Resources Conservation Commission, is to utilize the alternative fuels conversion fund to make loans or grants or otherwise finance activities supporting or encouraging the use of alternative fuels. New sec.sec.655.1, 655.5, and 655.10 specify the applicability of the rules, define the terms used, and define membership on the council. New sec.sec.655.15, 655.20, 655.25. 655.30 and 655.35 delineate the procedure for calling meetings of the council and the format of those meetings. New sec.sec.655.40, 655.45, 655. 50, 655.55, 655.60, 655.65 and 655.70 set out operating details such as council employees, the fiscal year, the budget, the principal domicile and address and the official seal, computation of time, and conduct and decorum. Finally, new sec.sec.655.75, 655,80, 655.85, 655.90, 655.95, 655.100, 655,105 and 655.110 set forth the bases for consideration of funding of projects by the council, the operating details regarding the filing of applications, consideration of applications by the council, council decision-making, minimum contractual terms for loan and grant agreements, enforcement, and ability of the council to enter into contracts with other governmental entities and private entities. These rules do not address all issues related to funding provided through the bond issuance contemplated by Senate Bill 737, sec.4 and sec.5. Additional rules will be proposed and adopted prior to the issuance of the authorized bonds. To implement the broad objectives of the legislation through its rules, the council developed and adopted the following policy guidelines: the distribution of funds must meet the requirement of federal and state law g6overning the use of the particular funds; priority should be given to projects that directly place alternative fuel vehicles on the road and/or develop refueling infrastructure; substantial funds should be directed to Texas non-attainment areas, taking into consideration both the non-attainment level and percentage of emissions contributed by mobile sources; consideration should also be given to borderline attainment areas and other areas where aggressive alternative fuel programs could help prevent the area's air quality from deteriorating to nonattainment levels for ozone, carbon monoxide or particulate matter; the availability of other funding options for projects should be determined and considered before the limited funds available to the council are committed; strong weight should be given in allocating funding to projects that are or can readily be coordinated with state, federal, and local alternative fuel and air quality programs, such as the proposed Presidential Clean Cities Initiative; the ability of recipients to leverage the grants, either with matching funds from their own revenues or from other sources such as private ventures, should be given significant weight; in placing grants, priority should be given to funding projects of local political subdivisions in order to supplement local tax revenues or general revenue funds; and in placing loans, additional consideration must be given to the ability of the applicants to repay, including a determination of what amount of repayment will come from fuel or other life- cycle savings or from operating revenues. One comment expressed concern that the authority of the council to fund private fleet owners as well as governmental entities is ambiguous. In response, the council affirms that private fleet owners are eligible to receive funds under this program, and has made the requested change to the language in the preamble. Another comment observed that because the definition of "bi-fuel vehicle" in sec.655.5 does not include information indicating that the use of the two fuels is measurable and definable and therefore subject to regulation, the definition implies that the council believes that bi-fuel vehicles have no value in the emissions reduction effort. The comment opined that it is unreasonable and unsound to insist on dedicated-fuel vehicles at the beginning of the movement away from gasoline, especially until the refueling infrastructure is more widespread. The council's preference is for dedicated vehicles due to the maximum emission reduction benefit achieved from those vehicles. The council recognizes bi-fuel vehicles as acceptable and creditable transitional vehicles. The council believes that the definition for bi-fuel vehicles is sufficient and that the suggested revision is unwarranted. One comment proposed revising the definition of "conversion" in sec.655.5 to delete the phrase "specified percentages" in order to allow for greater flexibility concerning the transition to alternative fuels. The council agrees with this suggestion, and has made the change. One comment pointed out that the definition of the term "joint venture" in sec.655.5 is too limiting because under the grant program, applicants may be a private person, company or firm; a state agency or a political subdivision thereof; a local governmental entity; or any combination thereof. The council agrees that the definition should make it clear that a joint venture may comprise two or more governmental entities, and the rule has been so revised. Another comment suggested that sec.655.75, which lists the methodology for prioritizing project applications, should give preference to funding those projects which place alternatively-fueled vehicles on the road and should clearly prohibit or deny funding for applications for promotional activity, research and development projects, or demonstration projects; the comment proffered specific language to be included in the rule. The council believes that sec.655.75 establishes funding priorities appropriately; that the council should retain the flexibility and discretion to fund promotional activities, research and development projects, or demonstration projects; and that the rule should not be changed. One comment agreed with the language in sec.655.75(a)(6) giving priority to projects which can provide matching funds, and suggested that the rule be revised to make matching funds an absolute requirement. The council declines to make this recommended change; giving preference to projects with matching funds appropriately recognizes the importance of matching funds but does not hinder the council's flexibility in considering and/or funding a variety of projects. Another comment observed that applicants in the private sector may well propose a project that under sec.655.80(f) would require disclosure of proprietary or other information, the possession of which could provide unfair advantage to a competitor, concluding that such information should not be freely available. This comment recommended that sec.655.80(f) be revised to provide that applications that include private participation be exempted from the provision that all applications and supporting documentation shall be available for inspection. In response, the council notes that it cannot by rule declare in advance that applications and supporting documentation filed by private entities are exempt from disclosure under the Open Records Act, Texas Government Code, Chapter 552. However, the council recognizes that the Open Records Act provides a mechanism for making that determination with respect to particular documents, and has revised the rule to advise applicants that the materials filed with the council are subject to the Open Records Act. One comment recommended deleting the language in sec.655.85(a) which states that knowing concealment of material facts concerning the subject matter of the required information items shall be grounds for refusal to consider any further application submitted by the applicant or under which the applicant would participate or receive a direct financial or regulatory benefit, on the grounds that such a prohibition is overly broad and that the goal of prohibiting untrustworthy applicants can be achieved by awarding trustworthiness a priority in the selection process. The council disagrees that this language would be used to disqualify an applicant for such minor problems as mistakes, oversights, or changes in other applicable rules which result in an erroneous submittal, and declines to make the proposed deletion. Applicants must include a detailed discussion of other public and private funding options available to them, under sec.655.85(b)(3)(J). One comment stated that when an applicant is a governmental entity, it is reasonable to ask about other funding sources, but that when an applicant is a private business entity, the requirement loses its logical connection to the application process. The comment suggested adding language making the distinction between categories of applicants clear. The council disagrees that this requirement bears no logical connection to private entity applicants. The council must have this information from all applicants to ensure that grants are made in such a way as to get maximum benefit from each dollar granted. Another comment suggested changing the language in sec.655.85(b)(3)(O) to require proof that a project will reduce emissions rather than proof of eligibility for SIP credits. The council agrees that a change in wording is necessary, but has made the change to emphasize that compliance with the SIP is a priority in nonattainment areas. One comment suggested revising sec.655.85 to add two new subsections relating to historically underutilized businesses, and provided the proposed language. The new subsections would encourage applicants to use historically underutilized businesses for project-related services, and to develop a plan to define what programs will be taken by the applicant to recruit, hire, and retain minority and women employees. The council declines to make the suggested change in the rule, because the primary task of the council is to coordinate a comprehensive statewide program to support the use of environmentally beneficial alternative fuels in vehicle fleets owned by state and local governments and political subdivisions, and to encourage and assist the shift to alternative fuels in private fleets. The council's programs are intended both to accelerate the transition to alternative fuels and to ease the financial impact of the transition on state and local governments. However, the council agrees that greater use of historically underutilized businesses is an important goal, and strongly encourages applicants to employ historically underutilized businesses for project-related services, and to develop a plan to recruit, hire, and retain minority and women employees. The council has added language in sec.655.85(b)(3)(I) in support of use of historically underutilized businesses. Section 655.95(b) allows the council to vary any and all provisions of its applications at any time prior to execution of a contract where the council deems such variances to be in the interest of the State of Texas. One comment suggested revising the rule to provide that application provisions may be changed at any time before applications are submitted, to avoid changing the rules in the middle of the process. The council must retain the flexibility and discretion to protect the interest of the State of Texas. An applicant may simply decline to execute a contract which has been changed. The council believes that the requested revision is not necessary. Another comment opined that there may be items or data included in an application that should not and need not be made public, and suggested eliminating the requirement in sec.655.100(1) that a copy of the application and all supporting documentation be attached to the agreement and made a part of it, instead having a summary of the application attached to the agreement. In response, the council believes that it may be crucial to have the specifics of a particular project part of the agreement; in some instances, a summary may not suffice to reflect the intentions of the parties. The council also notes that it cannot by rule declare in advance that applications and supporting documentation from private entities are exempt from disclosure under the Open Records Act, Texas Government Code, Chapter 552. However, the council recognizes that the Open Records Act provides a mechanism for making that determination with respect to particular documents, and has revised the rule to advise applicants that the materials filed with the council are subject to the Open Records Act. Finally, one general comment supported any reasonable initiative to research and develop alternative fuel technology using agricultural products and by- products, but did not suggest specific changes in the proposed rules. The council has made additional changes in the adopted rules as follows: Institutions of higher education and health care facilities have been added to the definition of the term "applicant" in sec.655.5 because Senate Bill 737 specifies that these entities are eligible to apply for loans, grants or other disbursements. The council added to sec.655.5 a definition for the term "fuel system" because it is necessary in evaluating applications. Section 655.55 has been amended to show the correct office location and mailing address for the council. Section 655.65 has been amended to change the wording describing the computation of time to replace the phrase "runs until the end of" with "shall conclude on." Section 655.85(b)(2) has been amended to spell out the name of the Texas Natural Resources Conservation Commission instead of using the acronym "TNRCC." Sections 655.85(b)(3) and 655.100(3) have been amended so that the subparagraphs have grammatically parallel construction. Comments were filed by Mesa, Inc.; Phillips Petroleum Company; the Texas Board of Criminal Justice; and the Texas Farm Bureau. The Texas Farm Bureau generally favored adoption of the sections; Mesa, Inc. generally favored adoption of the rules, but suggested specific changes. Phillips Petroleum Company and the Texas Board of Criminal Justice did not indicate favor or opposition, but suggested amendments to two sections. The rules are proposed under Texas Natural Resources Code, sec.113.284(b), which grants the Alternative Fuels Council the authority to adopt rules necessary to achieve the purposes of Texas Natural Resources Code, Chapter 113, Subchapter J, through a comprehensive program in support of the use of environmentally beneficial alternative fuels developed under sec.113.284. The rules implement Texas Natural Resources Code, Chapter 113, Subchapter J sec.655.5. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Act-Texas Natural Resources Code, Chapter 113. Alternative fuel (also referred to as "environmentally beneficial fuel" and "clean-burning fuel") -This term means: (A) natural gas; (B) liquified petroleum gas; (C) electricity; (D) methanol or methanol/gasoline blends of 85% (M85) or greater; (E) ethanol or ethanol/gasoline blend of 85% (E85), or greater; or (F) hydrogen. Alternative fuel vehicles (also referred to as "clean-fuel vehicles")-A vehicle: (A) capable of operating on an alternative fuel; (B) approved by the Texas Natural Resources Conservation Commission (TNRCC) for emissions; and (C) having a fuel system certified or approved by the Railroad Commission of Texas for safety, if applicable. Applicant-An individual, business, state agency, county, municipality, school district, institution of higher education, health care facility, or mass transit authority seeking to obtain a loan, grant or other disbursement from the council. Bi-Fuel Vehicle -A vehicle capable of operating on an alternative fuel or a conventional fuel but not on both at the same time. Chairman-The chairman of the council. Council-The Alternative Fuels Council as established by Texas Natural Resources Code, Chapter 113. Conversion-This term means: (A) the replacement of gasoline or diesel-powered fleet vehicles with alternative fuel vehicles to achieve greater alternative fuel vehicle composition in the fleet; or (B) the retrofitting or upfitting of a gasoline or diesel-powered vehicle with an alternative fuel fueling system. Designee-Individual employed by a council member's agency, board or commission designated by that council member to act on his or her behalf. Dual-fueled vehicle -A vehicle capable of operating on two different fuels simultaneously, at least one of which is an alternative fuel. Fuel system-Electrical or mechanical devices on board a vehicle for delivery of fuel to the vehicle engine, as defined by the Railroad Commission of Texas, where applicable. Historically underutilized business-This term means: (A) a corporation formed for the purpose of making a profit in which at least 51% of all classes of the shares of stock or other equitable securities are owned by one or more persons who have been historically underutilized because of their identification as women or as members of certain minority groups, including Black Americans, Hispanic Americans, Asian Pacific Americans, and Native Americans who have suffered the effects of discriminatory practices or similar invidious circumstances over which they have no control; (B) a sole proprietorship for the purpose of making profit that is 100% owned, operated and controlled by a person described in subparagraph (A) of this definition; (C) a partnership for the purpose of making a profit in which at least 51% of the assets and interest in the partnership is owned by one or more persons described in subparagraph (A) of this definition. Those persons must have a proportionate interest in the control, operation and management of the partnership's affairs; (D) a joint venture in which each entity in the joint venture is a historically underutilized business under this subsection; or (E) a supplier contract between a historically underutilized business under this subsection and a prime contractor under which the historically underutilized business is directly and regularly involved in the manufacture or distribution of the supplies or materials or otherwise warehouses and ships the supplies. Joint venture-An undertaking between a private person or firm and an agency of the State of Texas or political subdivision thereof or an undertaking between two or more agencies of the State of Texas or political subdivisions thereof entered into for the purpose of engaging in a specific alternative fuel related project or series of projects for mutual profit or benefit. Member-A member of the council or his or her designee as provided by Texas Natural Resources Code, sec.113.283. Minority-owned business -A historically underutilized business in which the underutilized person or persons is a member of a minority group. Motor fuel system -A natural gas or liquid petroleum gas system, as defined by the Railroad Commission of Texas. Nonattainment-A term used to define an area in which the ambient air quality does not meet an applicable National Ambient Air Quality Standard (NAAQS). NAAQS have been promulgated by the Environmental Protection Agency (EPA) establishing the maximum concentration of criteria pollutants in the ambient air. Original Equipment Manufacturer (OEM)-A final stage manufacturer or the final assembler before the vehicle is delivered to the consumer. OEMs accept responsibility for vehicle warranty as required by federal and state laws and retain all liability for their product, after the sale, for meeting all vehicle validation and certification requirements. OEM vehicle-A vehicle built by an OEM. Person-Any natural person, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency. Proceeding-All hearings and other matters conducted at the direction of the council on an application, from docketing of an application to final council decision on an application. Refueling infrastructure -Refueling facilities (whether one or more) necessary to dispense alternative fuel to alternative fuel vehicles. A refueling facility is any depreciable property, including a building and its structural components, designed for the storage and dispensing of an alternative fuel into a fuel tank of a motor vehicle or for the purpose of recharging electric vehicles (EVs) at occurs. Refueling infrastructure does not include natural gas pipelines or distribution lines or electric distribution lines located outside the boundaries of the property on which a refueling facility is located. State Implementation Plan (SIP)-A plan, or subsequent revisions thereto, promulgated by a state to implement the state's regulatory obligations under the Federal Clean Air Act, such as those related to attainment of the NAAQS. Women-owned business -See definition for "Historically underutilized business." sec.655.55. Principal Domicile and Address. The domicile and principal office of the council shall be at Austin, Texas. The council's offices are located at Room 104, Sam Houston State Office Building, Austin, Texas. Office hours are 8:00 a.m. to 5:00 p.m., Monday-Friday. The council's officers are closed on Saturday and Sundays and on state-observed holidays. The mailing address is Sam Houston State Office Builiding, Room 104, Austin, Texas 78701. sec.655.65. Computation of Time. In computing any period of time prescribed or allowed by this chapter, by order of the council, or by any applicable statute, the period shall begin on the day after the act, event, or filing in question and it shall conclude on the last day of the designated period, unless it is a Saturday, Sunday, or state-observed holiday, in which event the period shall conclude on the next day which is neither a Saturday, Sunday, nor a state- observed holiday. sec.655.80. Filing of Applications. (a) Applications filed with the council shall be on an application form promulgated by the council. Appropriate instructions and explanatory materials will be provided with the application. (b) Dates for the submission of applications shall be set and published by the council. If funds are available, application dates will be set not less than annually. (c) The deadline for receipt and consideration of an application for funding is the close of business (5:00 p.m. ) on the submission date. An application is considered filed when actually received in the council offices or when postmarked showing the application was received and accepted by the United States Post Office, a common carrier or its equivalent, at least four calendar days prior to submission date. Metered mail is not acceptable unless it also includes a United States Postal Service postmark. (d) Applicants shall pay, at the time of filing the application, a nonrefundable filing fee in an amount set by the council. (e) All documents relating to an application shall be filed with the council. Each application will be marked with the date and time received in the offices of the council. The envelope or other wrapper in which an application received by mail or common carrier was enclosed shall be retained with the application. (f) A copy of all applications and supporting documentation shall be maintained at the council's office. Applicants are advised that the council must comply with the Open Records Act, Texas Government Code, Chapter 552, and therefore that the application and supporting documentation are subject to the Open Records Act. (g) An application for a grant, loan, or other disbursement of funds shall be accompanied by all supporting documentation at the time the application is filed, except as provided in subsection (h) of this section. (h) Upon receipt, an application will undergo an initial review by the council to determine whether the application is complete and whether all proposed activities are eligible for funding. The results of the initial review shall be provided to the applicant. The applicant may correct any deficiencies within ten calendar days of the date of the notification of such deficiencies from the council. Upon determination that the application is complete, the application shall be forwarded to the executive committee for consideration. (i) A technical review of all applications or of particular classes of applications may be required by the council. The technical review may include investigation into the economic and technical feasibility of the project for which funding is sought and the likelihood that the project, if implemented, will accomplish the objectives stated in the application or established by the council. (j) The council may require an investigation of the financial circumstances, business experience and background of applicants, the personnel identified by an applicant as being principally responsible for the project for which funding is sought, and the same information concerning specific suppliers of goods and/or services proposed to be acquired pursuant to the terms of the application. sec.655.85. Required Information in Applications. (a) All applicants, whether requesting a loan or a grant, must provide the information described in this section. Failure to provide the information or failure to fully disclose any material fact concerning the subject matter of the required information items shall be grounds for rejection of the application. Knowing concealment of material facts concerning the subject matter of the required information items shall be grounds for refusal to consider any further application submitted by the applicant or under which the applicant would participate or receive a direct financial or regulatory benefit. Applicants may include additional information relevant to the subject matter of the application. (b) Applicants shall include a statement that the proposed project complies with all applicable federal and state law, including in the statement the following: (1) description of any federal, state and/or local air quality or alternative fuel related programs in place or planned for the area and reasonably anticipated to be initiated within three years of the application date; (2) identification of the area's air quality status, as determined by the EPA and provided for in the 42 United States Code, sec.7407, Clean Air Act, sec.107. In the absence of an EPA designation of attainment or nonattainment, the Texas Natural Resource Conservation Commission may be used as a resource for determining the air quality of the area. This information should include a discussion of the mobile source contribution to the area's air quality problem; (3) All applicants must articulate a "Statement of Project" including: (A) detailed description of relevant qualifications of the project's key personnel; (B) detailed description of applicant's past performance and experience with similar projects; (C) detailed description of applicant's quality control/assurance plan; (D) detailed description of applicant's proposed schedule for reporting the project's progress to the council; (E) detailed project budget, including description of the source of all fuel, equipment, labor, and facilities; (F) detailed description of equipment to be used and the method used to select the equipment; (G) overview of pertinent local alternative fuel related activity, such as active gas utilities, vehicle conversion centers, university programs, and others; (H) overview of existing and planned refueling infrastructure availability for the area; (I) clear identification, whenever applicable, of the applicant as a historically underutilized business, individual with low income, health care facility, minority-owned business, or women-owned business, and, whenever applicable, identification of applicant's employment of historically underutilized business for project-related services; (J) detailed discussion of other public and private funding options available to the applicant; (K) discussion of the applicant's current fleet composition and proposed compliance with the requirements of applicable federal and state fleet composition requirements; (L) identification of matching fund availability, from the applicant's own revenue or from other sources, including signed letters of intent; (M) identification of the applicant as a local political subdivision whose other funding option would be local tax revenues or General Revenue funds; (N) evidence of economic feasibility of the project including a demonstration of the ability to repay any loan principally from fuel savings, life-cycle savings, or other operating revenues; (O) a statement of a project's eligibility for SIP credits. An entity subject to SIP requirements which requests funding for a project in a nonattainment area subject to SIP requirements must show eligibility for SIP credit for that project; and (P) if an application is made for oil overcharge funds, a statement establishing the project's compliance with all applicable law relating to such funds. (4) The council may require any additional information it deems appropriate. sec.655.100. Grant and Loan Agreements. Minimum Terms and Compliance with Terms. (1) Entities receiving grants or loans shall be required to execute an agreement in the form prescribed by the council setting out the terms and conditions of the grant or loan as approved by the council. A true and complete copy of the application made by the recipient and all additions or amendments thereto shall be attached to the agreement and made a part thereof. Applicants are advised that the council must comply with the Open Records Act, Texas Government Code, Chapter 552, and therefore that the application and supporting documentation are subject to the Open Records Act. (2) Agreements shall be executed by the chairman and by the chief executive officer of the recipient or by such other officer authorized by the governing body of the entity to execute the agreement. A certified copy of a resolution of the governing body of the recipient consenting to the terms and conditions of the agreement and authorizing the officer executing it to do so shall be attached to the agreement. (3) The agreement shall contain at least the following terms and conditions, together with all such other terms and conditions prescribed by the council: (A) performance under the grant shall strictly comply with the proposal submitted in the application, unless specifically modified by the council; (B) all equipment purchased through the grant or loan shall be maintained and operated in compliance with manufacturer's warranty requirements, state and federal laws, and in conformance with the SIP. The recipient shall immediately report all citations by regulatory authorities for violations of such provisions to the council; (C) the recipient shall assume all liability for the operation and maintenance of equipment purchased through the grant or loan and indemnify the council and the State of Texas from all liability arising therefrom, to the extent permitted by law; (D) at the direction of the council, may provide for funding of purchases or construction, in stages, conditioned on delivery of equipment or completion and approval by the council or other appropriate authority of specified stages of construction; (E) provide that further funding may terminate at the discretion of the council for the failure of the recipient to comply with the requirement of the grant or loan; (F) provide that the agreement may be terminated by mutual agreement of the recipient and the council, and all unexpended funds returned to the council, in the event of either impossibility, including unavailability of equipment planned to be purchased with loan or grant funds, or the commercial unfeasibility of project; (G) bind the recipient to refund to the council all funds expended by the recipient in violation of the terms of the agreement, together with all administrative costs, attorneys fees, expenses and court costs incurred by the council; and (H) grant to the council the right to demand and receive reports of progress of the project at specified intervals, the right to audit the recipient with respect to the project, and the right to perform inspections of the project at reasonable times. 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 January 21, 1994. TRD-9435027 Garry Mauro Chairman Texas Alternative Fuels Council Effective date: February 11, 1994 Proposal publication date: September 21, 1993 For further information, please call: (512) 463-5007 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter O. State Sales and Use Tax 34 TAC sec.3.292 The Comptroller of Public Accounts adopts an amendment to sec.3.292, concerning repair, remodeling, maintenance, and restoration of tangible personal property, without changes to the proposed text as published in the November 12, 1993, issue of the Texas Register (18 TexReg 8339). Amendments to the Tax Code, effective October 1, 1993, exept the labor to repair tangible personal property damaged within a disaster area. References to remodeling motor vehicles were also added to the section. No comments were received regarding adoption of the amendment. This amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendments implement the Texas Tax Code, sec.sec.151.0101, 151.151, 151.3111, 151.350. 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 January 20, 1994. TRD-9434944 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: February 10, 1994 Proposal publication date: November 12, 1993 For further information, please call: (512) 463-4028 34 TAC sec.3.310 The Comptroller of Public Accounts adopts an amendment to sec.3.310, concerning laundry, cleaning, and garment services, without changes to the proposed text as published in the November 12, 1993, issue of the Texas Register (18 TexReg 8341). Amendments to the Tax Code, effective October 1, 1993, exempt the labor to repair tangible personal property damaged within a disaster area. No comments were received regarding adoption of the amendment. This amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Texas Tax Code, sec.sec.151.0048, 151. 057, 151.302, 151.350. 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 January 20, 1994. TRD-9434943 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: February 10, 1994 Proposal publication date: November 12, 1993 For further information, please call: (512) 463-4028 34 TAC sec.3.329 The Comptroller of Public Accounts adopts an amendment to sec.3.329, concerning enterprise projects, without changes to the proposed text as published in the November 12, 1993, issue of the Texas Register (18 TexReg 8342). The amendment reflects changes to the Tax Code, sec.151.429, that allows a sales tax refund for jobs retained, as well as jobs created, by an enterprise project. No comments were received regarding adoption of the amendment. This amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Tax Code sec.151.429. 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 January 20, 1994. TRD-9434942 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: February 10, 1994 Proposal publication date: November 12, 1993 For further information, please call: (512) 462-4028 Subchapter V. Franchise Tax 34 TAC sec.3.558 The Comptroller of Public Accounts adopts an amendment to sec.3.558, concerning officer and director compensation, without changes to the proposed text as published in the November 12, 1993, issue of the Texas Register (18 TexReg 8343). Amendments to this section resulted from the creation of limited banking associations by the 73rd Legislature, 1993. Some amendments were made to eliminate redundancy. No comments were received regarding adoption of the amendment. This amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendments implement the Texas Tax Code, sec.171.110. 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 January 20, 1994. TRD-9434948 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: February 10, 1994 Proposal publication date: November 12, 1993 For further information, please call: (512) 463-4028 34 TAC sec.3.562 The Comptroller of Public Accounts adopts new sec.3.562, concerning limited liability companies, without changes to the proposed text as published in the November 12, 1993, issue of the Texas Register (18 TexReg 8346). This new section contains guidelines for determining the taxable capital and earned surplus of limited liability companies. The section is a result of the creation of limited liability companies by the 72nd Legislature, 1991. No comments were received regarding adoption of the new section. This new section is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The new section implements the Tax Texas Tax Code, sec.171.001. 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 January 20, 1994. TRD-9434947 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: February 10, 1994 Proposal publication date: November 12, 1993 For further information, please call: (512) 463-4028 34 TAC sec.3.573 The Comptroller of Public Accounts adopts new sec.3.573, concerning provisional exemptions, without changes to the proposed text as published in the July 20, 1993, issue of the Texas Register (18 TexReg 4742). The new section sets out the procedure for a corporation to obtain a temporary franchise tax exemption as referenced in Tax Code sec.171.063(d), while a corporation awaits its federal exemption from the Internal Revenue Service. No comments were received regarding adoption of the new section. This new section is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The new section implements the Tax Code sec.171.063. 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 January 20, 1994. TRD-9434960 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: February 10, 1994 Proposal publication date: July 20, 1993 For further information, please call: (512) 463-4028 Subchapter AA. Automotive Oil Sales Fee 34 TAC sec.3.701 The Comptroller of Public Accounts adopts an amendment to sec.3.701, concerning the automotive oil sales fee, without changes to the proposed text as published in the November 12, 1993, issue of the Texas Register (18 TexReg 8349). The 73rd Legislature, 1993, amended the Health and Safety Code, Chapter 371, effective October 1, 1993, to clarify when an importer is liable for the fee and to change the state agency authorized to administer the used oil recycling fund. No comments were received regarding adoption of the amendment. This amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Health and Safety Code, sec.371.062. 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 January 20, 1994. TRD-9434946 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: February 10, 1994 Proposal publication date: November 12, 1993 For further information, please call: (512) 463-4028 Part IX. Texas Bond Review Board Chapter 190. Allocation of the State's Limit on Certain Private Activity Bonds Subchapter A. Program Rules 34 TAC sec.190.3, sec.190.8 The Texas Bond Review Board adopts amendments to sec.190.3, sec.190.8, without changes to the proposed text as published in the November 26, 1993, issue of the Texas Register (18 TexReg 8771). The Texas Bond Review Board amends these sections to clarify the application process and allow sufficient time for compliance after closing. The Texas Bond Review Board amends these section to facilitate maximum efficiency in the usage of allocation for private activity bonds. The amendments clarify the application process and allow sufficient time for compliance after closing. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 5190.9a, which give the Texas Bond Review Board the authority to propose rules pertaining to the adoption, implementation and administration of the allocation of the state's ceiling on private activity bonds. 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 January 20, 1994. TRD-9434995 Albert L. Bacarisse Executive Director Texas Bond Review Board Effective date: February 10, 1994 Proposal publication date: November 26, 1993 For further information, please call: (512) 463-1741 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 85. Admission and Placement Placement Planning 37 TAC sec.85.23, sec.85.29 The Texas Youth Commission (TYC) adopts amendments to sec.85.23 and sec.85. 29, concerning classification and program completion and movement, without changes to the proposed text as published in the December 14, 1993, issue of the Texas Register (18 TexReg 9274). The justification for amending the section is to provide more efficient control of delinquent youth. The amendments will allow staff to reclassify youth involved in a riot at a TYC facility and changes criteria by which a youth may be moved to a follow-up placement following the initial placement. No comments were received regarding adoption of the amendments. The amendments are adopted under Human Resources Code, sec.61.075, which provides the Texas Youth Commission with the authority to confine youth under conditions it believes are in the best interest of the youth and of the 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 January 14, 1994. TRD-9434906 Steve Robinson Executive Director Texas Youth Commission Effective date: February 9, 1994 Proposal publication date: December 14, 1993 For further information, please call: (512) 483-5244 Part VI. Texas Department of Criminal Justice Chapter 159. Special Programs Subchapter A. Substance Abuse Treatment 37 TAC sec.159.1 The Texas Board of Criminal Justice adopts new sec.159.1, concerning substance abuse felony punishment facilities eligibility criteria, with changes to the proposed text as published in the October 8, 1993, issue of the Texas Register (18 TexReg 6947). The adopted new sec.159.1 explains the eligibility criteria that preclude a defendant from being placed in a substance abuse felony punishment facility. The criteria are based on the ability of the defendant to participate without interruption in the program and on the ability of the program to meet the needs of defendants with special medical, psychological, or detoxification requirements. The changes in the proposed text remove an unnecessary reference to existing statutory criteria, and they clarify the intentions of the proposed criteria. The adopted criteria will provide district judges and community supervision and corrections departments with criteria that preclude a defendant from being placed in a substance abuse felony punishment facility. Four individuals submitted written comments on the proposed criteria to the Department of Criminal Justice. Two of the individuals expressed no major objections to the criteria, but they did propose changes to one of the criteria, which concerned the eligibility of defendants with a detainer or pending charges. These respondents proposed that the language regarding pending charges be deleted. The other two respondents also expressed concerns about the detainer criteria, and they recommended that jurisdictions be allowed to hold pending charges as a method of enhancing a defendant's participation in the substance abuse treatment program. One respondent further suggested that offenders with pending charges be eligible provided that the jurisdiction that has the pending charges agrees not to seek custody of the defendant until after the program and the aftercare requirements have been completed. Two individuals also expressed concern about the second and fourth criteria, and they requested more specific language for these medical and psychological criteria. One of the respondents recommended that the section on legal criteria be deleted since these were established by statute, and he requested clarification of the criterion concerning detoxification. The only comments received for and against the section were from individuals. The agency agrees with the comments and has made appropriate changes to the criteria to clarify the intention of the proposed text. The new section is adopted under the Texas Government Code, sec.493.009(b), as amended by Senate Bill 532, Acts 1993, 73rd Legislature, which provides the Texas Board of Criminal Justice with the authority to adopt criteria to determine the suitability of candidates for participation in the substance abuse felony punishment facility program. sec.159.1. Substance Abuse Felony Punishment Facilities Eligibility Criteria. (a) Defendants with a detainer or pending charges are not eligible to participate unless the jurisdiction that placed the detainer agrees not to seek custody of the defendant until after the program and continuum of care requirements have been completed. (b) Persons must be physically and mentally capable of uninterrupted participation in a rigorous, stressful, and confrontational Therapeutic Community program. Defendants with special medical or psychological needs must meet the eligibility criteria for the Special Needs SAFPF as defined in CJAD Field Correspondence. (c) Persons who have signs or symptoms of acute drug or alcohol withdrawal, or who require detoxification are not eligible to participate until they have been detoxified. 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 January 21, 1994. TRD-9435053 Carl Reynolds General Counsel Texas Board of Criminal Justice Effective date: February 11, 1994 Proposal publication date: October 8, 1993 For further information, please call: (512) 463-9693 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services (Editor's Note: Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session, 1991, as amended by Chapter 747, sec.2, Acts of the 73rd Legislature, Regular Session, 1993, provided for the transfer of certain programs from the Texas Department of Human Services to the Texas Department of Health effective September 1, 1993. The Texas Register is administratively transferring the following rules listed in the table published in this issue from Title 40., Part I. Texas Department of Human Services to Title 25. Part I. Texas Department of Health. The Table lists the old rule number and the new rule number that corresponds to them.)