PROPOSED RULES Before an agency may permanently adopt a new or amended section or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before action is taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive action, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 15. Alternative Fuels Research and Education Division General Rules of Practice and Procedure 16 TAC sec.15.30 The Railroad Commission of Texas proposes new sec.15.30, relating to the propane alternative fuels advisory committee. Implementing Senate Bill 383, 73rd legislature, 1993, the new section creates the propane alternative fuels advisory committee of the commission, and establishes its duration; sets forth the purpose and duties of the committee; prescribes the composition of the committee, the nomination and appointment process, and the membership terms of the committee; and sets forth the mechanisms by which the committee meets, performs its work, and is evaluated. Dan Kelly, director, Alternative Fuels Research and Education Division, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Kelly also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be a more clearly understandable procedure by which the propane alternative fuels advisory committee is created and operates. There will be no effect on small businesses. There is an anticipated economic cost to persons, but to only those 17 who are members of the propane alternative fuels advisory committee; due to the nature of the provisions, the amount of that cost cannot be determined. The anticipated economic cost to individuals arises from the provision that the commission will not reimburse advisory committee members for travel or other expenses related to service on the committee. Such expenses are likely to be different for each committee member. Comments on the proposal may be submitted to Dan Kelly, Director, Alternative Fuels Research and Education Division, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967. Comments will be accepted for 30 days after publication in the Texas Register. The new section is proposed under Texas Natural Resources Code, sec.113.241, which gives the commission the authority to adopt all necessary rules relating to conducting research and educating the public regarding the use of propane; and Texas Natural Resources Code, sec.113.242, which gives the commission the authority to appoint one or more advisory committees composed of members representing the propane industry, consumers, and other interests to consult with and advise the commission on opportunities and methods to expend the use of propane. The new section implements the provisions of Senate Bill 383, 73rd Legislature, 1993, which mandates that state agency advisory committees conform to specific requirements set forth in the Act. The following is the statute, article, or code affected by the proposed new section: Texas Natural Resources Code, sec.113.241 and sec.113.242; Senate Bill 383, 73rd Legislature, 1993. sec.15.30. Propane Alternative Fuels Advisory Committee. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Commission-The Railroad Commission of Texas. (2) Committee-The Propane Alternative Fuels Advisory Committee of the Railroad Commission of Texas. (3) Consumer representative-A member of the committee who is not engaged in the business of producing, distributing or retailing propane and who is not engaged in the business of designing, manufacturing, distributing or retailing propane equipment or performing propane-related research services or other services, but who is an end user of odorized propane fuel, including, but not limited to, a consumer of odorized propane as a residential or commercial heating or water-heating fuel, as an automotive or other transportation fuel, or as an agricultural or industrial fuel. (4) Division-The Alternative Fuels Research and Education Division of the Railroad Commission of Texas. (5) Fiscal year-September 1 of a year through August 31 of the following year. (6) Industry representative-A member of the committee who is engaged in the business of producing, distributing or retailing propane or who is engaged in the business of designing, manufacturing, distributing or retailing propane equipment or performing propane-related research or other services. (7) Member-An industry representative, a consumer representative, or the president of the Texas Propane Gas Association, who serves on the Propane Alternative Fuels Advisory Committee of the Railroad Commission of Texas. (8) Presiding officer-The chairman of the Propane Alternative Fuels Advisory Committee of the Railroad Commission of Texas. (9) Propane-Liquefied petroleum gas (LPG), as that term is defined in Texas Natural Resources Code, Chapter 113. (10) Subcommittee-A panel of no fewer than five members of the committee assigned to handle issues relating to research, marketing, or public education. (b) Establishment; Duration. Effective March 15, 1994, the committee is hereby established. The committee is abolished on March 15, 1998, unless the commission amends this subsection to establish a different date. (c) Purpose and Duties. The purpose of the committee is to give the commission the benefit of the members' collective business, environmental, and technical expertise and experience to help the commission increase the use of propane, improve air quality, and develop the economy of this state. The committee's sole duty is to advise the commission. The committee has no executive or administrative powers or duties with respect to the operation of the division. All such powers and duties rest solely with the commission. (d) Composition of Committee; Membership Terms. The committee shall be composed of 17 members, which shall include eight industry representatives, eight consumer representatives, and the president of the Texas Propane Gas Association (TPGA) as an ex officio
    member, all of whom serve at the pleasure of the commission. The membership terms of the 16 industry and consumer representatives shall be overlapping, two-year terms. The membership term of the TPGA president shall coincide with his or her service as president of TPGA. (e) Nominations for Committee Membership. Any person may nominate a candidate or candidates for membership on the committee. Nominations must be in writing and may be submitted by February 15 of each year to the commission, a commissioner, or the director of the division for transmission to the commission. (f) Appointment of Members. All 17 members of the committee are appointed by and serve at the pleasure of the commission. The commission shall appoint eight new members by March 15 each year, such that the composition of the committee meets the requirements of subsection (d) of this section. If a member resigns or otherwise vacates his or her position prior to the end of his or her two-year term, the commission shall appoint a replacement who shall serve the remainder of the unexpired term. (g) Reimbursement of Members' Expenses. The commission shall not reimburse members for travel or other expenses related to service on the committee. (h) Presiding Officer; Other Officers. The committee shall elect from its members a presiding officer who shall report the committee's advice and attendance in writing to the commission. The committee may elect other officers at its pleasure. (i) Subcommittees. The committee shall be organized into three subcommittees of no fewer than five members each for research, marketing, and public education. One member of each subcommittee shall serve as the chair of that subcommittee. The subcommittee chairs shall make written reports regarding their subcommittee's work to the presiding officer. (j) Meetings. The committee shall meet at the call of the presiding officer or the commission. Committee and subcommittee meetings are open to the public. (k) Committee Records. The division staff shall record and maintain the originals of the minutes of each committee and subcommittee meeting. The division shall maintain a record of actions taken by the committee and shall distribute copies of approved minutes and other committee documents to the commission and the committee members. (l) Evaluation of Committee Costs and Benefits. By October 1 of each year, the division director shall evaluate for the previous fiscal year and report to the commission: (1) the committee's work; (2) the committee's usefulness; and (3) the costs related to the committee's existence, including the cost of commission staff time spent in support of the committee's activities. (m) Report to Legislative Budget Board. The commission shall biennially report to the Legislative Budget Board the information developed under subsection (1) of this section in evaluating the committee's costs and benefits. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on February 1, 1994. TRD-9435522 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP-Gas Railroad Commission of Texas Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 463-7110 TITLE 22. EXAMINING BOARDS Part XXI. Texas State Board of Examiners of Psychologists Chapter 461. General Rulings 22 TAC sec.461.3 The Texas State Board of Examiners of Psychologists proposes an amendment to sec.461.1, concerning a Violation of the Code of Ethics. The Board is amending this rule in order to clarify the Board's requirements that psychologists follow the professional ethics of the profession of psychology. Rebecca E. Forkner, acting executive director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. The amendment is promulgated under the authority of the Texas Tax Code, Title 2; therefore, no analysis of the effect on small business is required. Ms. Forkner also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to clarify the Board's requirements that a psychologist follow the ethics of the profession of psychology to ensure that the public receives appropriate and ethical services. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 9101 Burnet Road, Austin, Texas 78758, (512) 835-2036. The amendment is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. No statute or code is affected by the proposed amendment. sec.461.3. Violation of the Code of Ethics. A violation of the professional
      code of ethics of the Texas State Board of Examiners of Psychologists
        is unprofessional conduct and is a violation of the Board rules. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on February 1, 1994. TRD-9435489 Rebecca E. Forkner Acting Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 835-2036 22 TAC sec.461.6 The Texas State Board of Examiners of Psychologists proposes an amendment to sec.461.6, concerning File Updates. The Board is amending this rule to ensure that all individuals are certified of licensed by the Board, as well as all applicants, are responsible for keeping their professional files current at all times. Rebecca E. Forkner, acting executive director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. The amendment is promulgated under the authority of the Texas Tax Code, Title 2; therefore, no analysis of the effect on small business is required. Ms. Forkner also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to ensure that information in an individual's file is up to date so that the information available to certificands, licensees and the general public is always correct and current. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 9101 Burnet Road, Austin, Texas 78758, (512) 835-2036. The amendment is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. No statutes or codes are affected by the proposed amendment. sec.461.6. File Updates.
          The applicant or any person certified or licensed by the Board
            [psychologist] is responsible for keeping his or her board file updated. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 28, 1994. TRD-9435437 Rebecca E. Forkner Acting Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 835-2036 Chapter 463. Applications 22 TAC sec.463.5 The Texas State Board of Examiners of Psychologists proposes an amendment to sec.463.5, concerning Application Filing Requirements. The amendment fully defines the Board's requirements regarding applicants with complaints filed against them and to include a stipulation on the number of hours for practicum internship or experience in psychology and the supportive documentation of said hours. Rebecca E. Forkner, acting executive director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. The amendment is promulgated under the authority of the Texas Tax Code, Title 2; therefore, no analysis of the effect on small business is required. Ms. Forkner also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to ensure that consumers receive quality psychological services by guaranteeing proof of any applicant's internship or experience in psychology and to ensure that complaints are brought to a final determination before an applicant is certified or licensed in order to protect the general public from harm and to ensure they are receiving psychological services from qualified individuals. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 9101 Burnet Road, Austin, Texas 78758, (512) 835-2036. The amendment is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. No statutes or codes are affected by the proposed amendment. sec.463.5. Application File Requirements. An application file must be complete and contain whatever information or examination results the Board requires. An incomplete application remains in the active file for 90 days, at the end of which time, if still incomplete, it is void. If certification or licensure is sought again, a new application and filing fee must be submitted. An applicant cannot have two types of applications for certification or licensure pending before the Board. (1) A completed application for certification as a psychologist or licensure as a psychological associate includes: (A)-(E) (No change.) (F) documentation of 450 clock hours of practicum internship, or experience in psychology, in not more than two placements, supervised by a licensed psychologist. (2) A completed application for the Oral Exam includes an application and required fee. (3) (No change.) (4) A completed application for certification and licensure by reciprocity as a psychologist includes: (A) an application, required fee and two current
              passport-size pictures of the applicant; (B) (No change.) (C) if providing psychological services in Texas before receiving license, must be employed in an exempt agency, or must have a provisional license
                [temporary permit], or must be supervised by a licensed psychologist in an acceptable setting which is appropriate for the education/experience background of the applicant; (D)-(I) (No change.) (5) For any
                  [an] applicant who [is practicing psychology under a temporary permit, supervision, or employment in a statutorily exempt agency and] has
                    a complaint [is] filed against the applicant, any final decision on the application will be held in abeyance until the Board has made a final determination on the complaint filed. The applicant will be permitted to take all required exams as scheduled but will not be certified until approved by the Board. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 28, 1994. TRD-9435438 Rebecca E. Forkner Acting Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 835-2036 22 TAC sec.463.30 The Texas State Board of Examiners of Psychologists proposes an amendment to sec.463.30, concerning the Jurisprudence Examination for applicants by reciprocity. The amendment includes applicants for a provisional license/certificate in the Board's requirements for passing the Jurisprudence Examination. Rebecca E. Forkner, acting executive director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. The amendment is promulgated under the authority of the Texas Tax Code, Title 2; therefore, no analysis of the effect on small business is required. Ms. Forkner also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to help ensure that consumers receive quality psychological services, to ensure that applicants for a provisional license/certificate know the laws, ethics, rules and regulations governing the profession in the State of Texas. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 9101 Burnet Road, Austin, Texas 78758, (512) 835-2036. The amendment is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. No statutes or codes are affected by the proposed amendment. sec.463.30. Jurisprudence Examination for Applications for Certification and Licensure by Reciprocity or Application for Provisional License/Certificate. Applicants for certification and licensure by reciprocity or applicants for provisional license/certificate
                      may take the Jurisprudence Examination at times mutually agreed upon between them and the Board's office. All applicants for certification and licensure as a psychologist by reciprocity or applicants for provisional license/certificate
                        are required to pass the Jurisprudence Examination prior to the Board granting certification and licensure by reciprocity or prior to the Board granting a provisional license/certificate. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 28, 1994. TRD-9435439 Rebecca E. Forkner Acting Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 835-2036 22 TAC sec.463.31 The Texas State Board of Examiners of Psychologists proposes new sec.463. 31, concerning Provisional License/Certificate Application File Requirements. The Board is proposing this new rule to conform to the new law brought into effect by the 73rd Legislative Session. Rebecca E. Forkner, acting executive director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Ms. Forkner also has determined that for each year of the first five years the rule as proposed is in effect the public benefits anticipated as a result of enforcing the rule as proposed will be to receive psychological services from a person licensed in another jurisdiction while he/she is applying in Texas. The public benefits because a person can receive services from an experienced professional. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 9101 Burnet Road, Austin, Texas 78758, (512) 835-2036. The new rule is proposed under the Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. No statutes or codes are affected by the proposed new rule. sec.463.31. Provisional License/Certificate Application File Requirements. An application file must be complete and contain whatever information or examination results the Board requires. An incomplete application remains in the active file for 90 days, at the end of which time, if still incomplete, it is void. If a provisional license or certificate is sought again, a new application and filing fee must be submitted. An application for licensure as a psychological associate, certification as a psychologist, or licensure as a psychologist must be on file with the Board. (1) A completed application for a provisional license as a psychological associate includes: (A) an application and required fee(s) for provisional license as a psychological associate; (B) two current passport pictures of the applicant; (C) official transcripts sent directly to the Board's office from all colleges/universities where post-baccalaureate course work was completed as found in sec.463.8 of this title (relating to Subdoctoral Certification Education Requirements); (D) a statement which has a notary seal or a state seal from the appropriate psychology licensing agency in another jurisdiction confirming that the applicant has an active license/certificate as a psychological associate, and is in good standing with that jurisdiction; (E) an official notification directly from the Professional Examination Service that the applicant has passed the Examination for the Professional Practice of Psychology with a score that meets or exceeds the cut-off score in Texas at the time the application is filed with the Board; (F) a notarized statement from a psychologist licensed in the State of Texas confirming that the psychologist sponsors the applicant; (G) a notarized statement from a psychologist, licensed in the State of Texas, confirming that the applicant will practice under the supervision of the/a psychologist; and (H) proof that the requirements for licensure/certification as a psychological associate in the other jurisdiction are substantially equal to those prescribed by the Psychologists' Certification and Licensing Act for the State of Texas. (2) A completed application for provisional certification as a psychologist includes: (A) an application and required fee(s) for provisional certification as a psychologist; (B) two current passport pictures of the applicant; (C) an official transcript from the regionally accredited educational institution which indicates that an applicant has received a doctoral degree in psychology and meets the requirements of the Psychologists' Certification and Licensing Act, sec.11(b) or (c) for the State of Texas; (D) a statement which has a notary seal or a state seal from the appropriate psychology licensing agency in another jurisdiction confirming that the applicant has an active license/certificate as a psychologist, is in good standing with that jurisdiction; (E) an official notification directly from the Professional Examination Service that the applicant has passed the Examination for the Professional Practice of Psychology with a score that meets or exceeds the cut-off score in Texas at the time the application is filed with the Board; (F) a notarized statement from a psychologist licensed in the State of Texas confirming that the psychologist sponsors the applicant; (G) a notarized statement from a psychologist, licensed in the State of Texas, confirming that the applicant will practice under the supervision of the/a psychologist; and (H) proof that the requirements for licensure/certification as a psychologist in the other jurisdiction are substantially equal to those prescribed by the Psychologists' Certification and Licensing Act for the State of Texas. (3) A completed application for provisional license as a psychologist includes: (A) an application and required fee(s) for provisional licensure as a psychologist; (B) two current passport pictures of the applicant; (C) an official transcript from the regionally-accredited educational institution which indicates that an applicant has received a doctoral degree in psychology and meets the requirements of the Psychologists' Certification and Licensing Act, sec.11(b) or (c) for the State of Texas; (D) a statement which has a notary seal or a state seal from the appropriate psychology licensing agency in another jurisdiction confirming that the applicant has an active license to practice psychology and is in good standing with that jurisdiction. (E) an official notification directly from the Professional Examination Service that the applicant has passed the Examination for the Professional Practice of Psychology with a score that meets or exceeds the cut-off score in Texas at the time the application is filed with the Board. (F) a notarized statement from a psychologist licensed by the Board confirming that the psychologist sponsors the applicant; (G) a notarized statement from a psychologist, licensed in the State of Texas, that the applicant will practice with the psychologist until receiving a permanent license as a psychologist from the Board; and (H) proof that the requirements for licensure/certification as a psychologist in the other jurisdiction are substantially equal to those prescribed by the Psychologists' Certification and Licensing Act for the State of Texas. (4) In addition to the requirements in paragraph (3) of this subsection, applicants for provisional license as a psychological associate or provisional certification as a psychologist must have taken and passed the Jurisprudence Examination as administered by the Texas State Board of Examiners of Psychologists prior to their receiving a provisional license/certificate; applicants for provisional license as a psychologist must have taken and passed the Jurisprudence Examination as well as administered by the Texas State Board of Examiners of Psychologists prior to their receiving a provisional license as a psychologist. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 28, 1994. TRD-9435440 Rebecca E. Forkner Acting Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 835-2036 22 TAC sec.463.32 The Texas State Board of Examiners of Psychologists proposes new sec.463. 32, concerning Acceptance of Applications for Provision License as a Psychologist. The new rule more fully defines the time limitations on acceptance of applications for a provision license as a psychologist. Rebecca E. Forkner, acting executive director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. This rule is promulgated under the authority of the Texas Tax Code, Title 2; therefore, no analysis of the effect on small business is required. Ms. Forkner also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to ensure that applicants for provisional license as a psychologists will be able to remain within the Board's requirements for time limitations on examinations thereby providing the general public with qualified psychological services as soon as possible. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 9101 Burnet Road, Austin, Texas 78758, (512) 835-2036. The new rule is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. No statute or code is affected by the proposed rule. sec.463.32. Acceptance of Applications for Provisional License as a Psychologists. Applications for a provisional license as a psychologist will not be accepted in the months of January and July. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 28, 1994. TRD-9435441 Rebecca E. Forkner Acting Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: February 11, 1994 For further information, please call: (512) 835-2036 Chapter 465. Rules of Practice 22 TAC sec.465.37 The Texas State Board of Examiners of Psychologists proposes new sec.465. 37, concerning Provision of Psychological Services; the new rule clarifies statutory requirements that only licensed psychologists and those persons under the supervision of a licensed psychologist may perform psychological services in the State of Texas. Rebecca E. Forkner, acting executive director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. This rule is promulgated under the authority of the Texas Tax Code, Title 2; therefore, no analysis of the effect on small business is required. Ms. Forkner also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to clarify statutory requirements so people know the legal restrictions on offering psychological services. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 9101 Burnet Road, Austin, Texas 78758, (512) 835-2036. The new rule is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. No statute or code is affected by the proposed rule. sec.465.37. Provision of Psychological Services. Only a licensed psychologist or a person under the supervision of a licensed psychologist may offer psychological services in the State of Texas. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 28, 1994. TRD-9435442 Rebecca E. Forkner Acting Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: February 11, 1994 For further information, please call: (512) 835-2036 Chapter 466. Procedure 22 TAC sec.sec.466.1-466.43 The Texas State Board of Examiners of Psychologists proposes new sec.sec.466. 1-466.43, concerning Procedure. The new rules will more effectively regulate the practice of psychology, implement the requirements of Senate Bill 142, 73rd Texas Legislature, and establish procedures for the orderly and efficient disposition of complaints before the Board. Rebecca E. Forkner, acting executive director, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. The new sections are promulgated under the authority of the Texas Tax Code, Title 2; therefore, no analysis of the effect on small business is required. Ms. Forkner also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be to determine the qualifications of persons offering to perform psychological services and to protect the public against exploitation and injury at the hands of the unqualified and unscrupulous. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 9101 Burnet Road, Austin, Texas 78758, (512) 835-2036. The new rules are proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. No statute or code is affected by the proposed rules. sec.466.1. Objective and Scope. The objective of these sections is to obtain a just, fair and equitable disposition of any matter within the jurisdiction of the Board. To the end that this objective may be attained with the greatest expedition and at the least expense possible to the parties and the State, these sections shall be given a liberal construction. Except as provided by other applicable law, these sections govern the procedure for the institution, conduct and determination of proceedings before the Board. These sections do not apply to matters related solely to the internal personnel rules and practices of this agency. The provisions of the Psychologists' Certification and Licensing Act govern where ambiguity or differences exist between these sections and the Act. The provisions of these rules govern when in conflict with the Rules of the State Office of Administrative Hearings unless otherwise stated by law. sec.466.2. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Act-The Psychologists' Certification and Licensing Act, Texas Civil Statutes, Article 4512c. Administrative law judge-An individual appointed by the Chief Administrative Law Judge of the State Office of Administrative Hearings under Texas Civil Statutes, Article 6252-13f, sec.3, and all amendments thereafter. Agency-The Board and all divisions, departments and employees thereof. Applicant or petitioner-A party seeking a license or rule from the Board. Board-The nine-member Texas State Board of Examiners of Psychologists. Board member-One of the members of the Board, appointed pursuant to the Act, sec.4, and qualified under the Act, sec.5. Chair-The chairperson of the Board. Chief clerk-The chief clerk of the Board. Contested case -A proceeding, including, but not restricted to licensing and disciplinary action in which the legal rights, duties or privileges of a party are to be determined by the Board after an opportunity for an adjudicative hearing. Executive director -The executive director of the Board designated in accordance with the Act, sec.7(b). License-The whole or part of any agency permit, certificate, approval, registration, or similar form of permission required by law. Licensing-The agency process respecting the granting, denial, renewal, revocation, suspension, annulment, withdrawal or amendment of a license. Official act-Any act performed by the Board pursuant to a duty, right or responsibility imposed or granted by law. Party-Each person or agency named or admitted as a party. Person-Any individual, partnership, corporation, association, governmental subdivision or public or private organization of any character other than an agency. Pleading-Any written petition, answer, motion, or other written instrument filed with the Board with respect to a contested case. Presiding officer -The chair, the acting chair of the Board, or a duly authorized administrative law judge while acting with respect to a hearing. Register-The Texas Register. Rule-Any agency statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of the agency. The term includes the amendment or repeal of a prior rule, but does not include statements concerning only the internal management or organization of the agency and not affecting private rights or procedures. sec.466.3. Construction. (a) A provision of a section referring to the Board is construed to apply to the Board or the chair if the matter is within the jurisdiction of the Board. (b) Unless otherwise provided by law, any duty imposed on the Board may be delegated to a duly authorized representative. In such case, the provisions of any section referring to the Board or the chair shall be construed to also apply to the duly authorized representative. (c) These sections shall not be construed so as to enlarge, diminish, modify or alter the jurisdiction, powers, or authority of the Board or the substantive rights of any party. sec.466.4. Records of Official Action. All official acts of the Board shall be evidenced by a recorded or written record. The minutes of the Board shall constitute a written record. Official action of the Board shall not be bound or prejudiced by any informal statement or opinion made by any member of the Board or the employees of the agency. sec.466.5. Conduct and Decorum. (a) Parties, authorized representatives, witnesses, and other participants in Board proceedings shall conduct themselves with proper dignity, courtesy, and respect for the Board, the executive director, the administrative law judge, and all other participants. Disorderly conduct will not be tolerated. (b) All authorized representatives shall observe the standards of ethical conduct prescribed for their professions. (c) A violator of this rule may be excluded from the proceeding by the presiding officer for such period as is just and may be subject to such other reasonable and lawful disciplinary action as the Board may prescribe. sec.466.6. Computation of Time. (a) In computing any period of time prescribed or allowed by these sections, order of the Board, or any applicable statute, the period shall begin on the day after the act, event or default in controversy and on the first day of such computed period, unless it be a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday or a state recognized holiday. (b) Unless otherwise provided by statute, the time for filing any document may be extended by agreement of the parties or order of the presiding officer upon written motion duly filed prior to the expiration of the applicable time period, showing good cause for an extension of time and stating that the need therefor is not caused by the neglect, indifference or lack of diligence of the movant. A copy of any such motion shall be served upon all other parties of record to the proceeding contemporaneously with the filing thereof. sec.466.7. Agreement to be in Writing. No stipulation or agreement between the parties or their representatives with regard to any matter involved in any proceeding before the Board shall be enforced unless it shall have been reduced to writing and signed by the parties or their authorized representatives, or unless it shall have been dictated into the record by them during the course of a hearing, or incorporated in an order bearing their written approval. This section does not limit a party's ability to waive, modify, or stipulate any right or privilege afforded by these sections, unless precluded by law. sec.466.8. Pleadings. (a) Pleadings shall be typewritten or printed upon paper 8-1/2 inches wide and 11 inches long with left and right margins at least one inch wide. Exhibits annexed thereto shall be folded to the same size. Reproductions are acceptable, provided all copies are clear and permanently legible. The impression shall only be on one side of the paper and shall be double or one and one-half spaced, except that footnotes and lengthy quotations may be single-spaced. (b) Pleadings shall state their purpose, contain a concise statement of the facts in support thereof and a prayer for the desired relief. (c) The original of every pleading shall be signed in ink by the party filing the document or by his or her representative. Pleadings shall contain the name, address and telephone number of the party filing the document and, if applicable, the attorney's state bar number and telecopier number. The signed original shall be filed with the Board. (d) A certificate of service by the party or representative who files a pleading, stating that it has been served on the other parties, shall be prima facie evidence of such service. The following form of certificate will be sufficient in this connection: "I hereby certify that have I this ______ day of _______________, 19____, served copies of the foregoing pleading upon all other parties to this proceeding, by (state manner of service). Signature." Service of pleadings on and by a party shall be as specified in sec.466.11 of this title (relating to Service in Nonrulemaking Proceedings). (e) In a contested case the petition and each pleading shall be numbered with the licensee's license number and the number assigned by the State Office of Administrative Hearings, centered and underscored six lines down from the top of the first page. Double-spaced below the numbers shall be the heading as follows: [graphic] (f) All allegations or responses shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all subsequent pleadings, so long as the pleading containing such paragraph has not been superseded by an amendment. Each violation founded upon a separate transaction or occurrence and each response thereto shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth. (g) Any pleading filed pursuant to a Notice of Hearing may be amended up to seven days prior to the hearing. Amendments after that time will be at the discretion of the presiding officer. (h) All documents relating to any proceeding pending before the Board shall be filed with the chief clerk and the State Office of Administrative Hearings. A document is filed with the Board when it is received in the Board office or entered of record in a Board proceeding and is accompanied by the filing fee, if any, required by statute or Board rules. The received date noted on the document shall be considered prima facie evidence of the date of filing. Pleadings received after 5:00 p.m. local time of the Board shall be deemed filed the first day following that is not a Saturday, Sunday or official state holiday. sec.466.9. Docketing. After an application, petition or other document initiating a new proceeding and requiring action by the Board is processed, the executive director or designee shall forward a copy to the State Office of Administrative Hearings. sec.466.10. Notice of Adjudicative Hearing. (a) Notice in a contested case is governed by the Administrative Procedure Act, Government Code, sec.2001.051. (b) Notice shall be served as specified in sec.466. 11 of this title (relating to service in nonrulemaking proceedings). sec.466.11. Service in Nonrulemaking Proceedings. (a) Where service of notice by the Board is required, the Board shall serve in person or by mailing the Notice of Adjudicative Hearing, certified or registered mail, return receipt requested at the last address filed with the Board by the person entitled to receive such notice. (b) Where personal service cannot be made as contemplated in subsection (a) of this section or the licensee's or certificate holder's whereabouts are unknown, then service of notice shall be by publication of the Notice of Adjudicative Hearing in a newspaper of general circulation in the county in which the licensee or certificate holder was last known to have his or her practice for once each week for two consecutive weeks, the last publication to be at least ten days prior to the date of the hearing. Return of the service of notice by publication shall be by publisher's affidavit together with a copy of the published notice which shall be introduced into the record at the hearing. (c) A copy of any document filed by any party in any proceeding subsequent to the institution thereof shall be mailed or otherwise delivered to the other party of record by the filing party. If any party has appeared in the proceeding by an attorney, service shall be made upon such attorney. The willful failure of any party to make such service shall be sufficient grounds for the entry of an order by the presiding officer striking the document from the record. (d) The date of service by the Board is the date of receipt of the certified mailing or personal delivery. sec.466.12. Filing Fees.
                          Each application, petition or complaint which is intended to institute a proceeding before the Board shall be accompanied by the filing fee, if any, prescribed by law and these sections. sec.466.13. Notice of Rulemaking Proceedings. In all rulemaking proceedings, the Board shall give notice according to the procedures set forth in the Administrative Procedure Act. This section shall not limit the Board's power to adopt emergency rules as set forth in the Administrative Procedure Act. sec.466.14. Informal Settlement Conference. Prior to the institution of the Board's proceedings to revoke, suspend, annul or withdraw any license or certificate, the Board shall: (1) give notice to the licensee or certificate holder of such proceeding as required by the Administrative Procedure Act, Government Code, sec.2001.054(c); and (2) provide the licensee or certificate holder an opportunity to show compliance with the Act or rules of the Board by inviting the licensee or certificate holder to participate in an informal settlement conference. sec.466.15. Informal Disposition. (a) Pursuant to the Act, sec.25C, and the Administrative Procedure Act, Government Code, sec.2001.054 and sec.2001.056, informal disposition of any complaint or matter relating to the Act or of any contested case may be made by stipulation, agreed settlement, consent order or default. (b) A psychologist assigned by the chair to assist in complaints review may determine that the public interest might be served by attempting to resolve a complaint or other matter pending before the Board through an informal settlement conference prior to a formal disciplinary proceeding. In that event, the matter shall be set by the chief clerk for an informal settlement conference. (c) In the event the consulting psychologist determines that a violation of the Act does not exist, the matter shall be referred to the Complaints Review Committee for disposition. (d) The following procedure shall be followed in informal settlement conferences. (1) One or more members of the Board and/or representatives of the Board shall conduct the settlement conference as the Board's representative, one of which shall be a licensed psychologist. (2) The Board will provide the licensee or certificate holder with written notice of the time, date and place of the settlement conference, such notification shall inform the licensee or certificate holder of the nature of the allegations; that the licensee or certificate holder may be represented by legal counsel or other representative; that the licensee or certificate holder may offer the testimony of witnesses; that the Board will be represented by one or more of its members and by legal counsel; and that the licensee's or certificate holder's attendance and participation is voluntary. A copy of the Board's rules concerning informal disposition of cases shall be enclosed with the notice of the settlement conference. Notice of the settlement conference, with enclosures, shall be sent by certified mail, return receipt requested, to the last known address of the licensee or certificate holder on file with the Board. (3) Notice of the settlement conference with enclosures, shall be sent by certified mail, return receipt requested to the complainant at his or her current address on file with the Board. The complainant shall be afforded the opportunity to appear and testify or to submit a written statement for consideration at the settlement conference. (4) The settlement conference shall be informal and will not follow the procedure established in this chapter for contested cases or follow the Texas Rules of Civil Evidence. The licensee or certificate holder, his or her representative, representatives of the Board and Board staff and legal counsel may question witnesses, make relevant statements, present affidavits, letters, reports or statements of persons not in attendance and may present such other information as may be appropriate. (5) The Board's representative may call upon the Board's attorney at any time for assistance in conducting the settlement conference and may question any person in attendance. Each participant in the settlement conference shall have an opportunity to make a statement. (6) The Board's representative shall prohibit or limit access to the Board's investigative file and attorney work product to the licensee, certificate holder or complainant. (7) The Board's representative shall exclude from the settlement conference all persons except witnesses during their testimony, the licensee or certificate holder, the licensee's or certificate holder's representative, Board members and Board staff. (8) At the conclusion of the settlement conference, the Board's representative may make recommendations to the licensee or certificate holder for resolution of the issues. Such recommendations may include any disciplinary actions authorized by the Act and Board rules. (9) The licensee or certificate holder may either accept or reject the settlement recommendations proposed by the Board representative. An agreed order shall be drafted by Board counsel as soon thereafter as is practicable and mailed, certified mail, return receipt requested, to the licensee or certificate holder or his or her representative. The licensee or certificate holder shall have ten days after receipt of the agreed order to accept or reject the Board's offer of settlement. Notice of rejection shall be in writing. (10) Following acceptance and execution by the licensee or certificate holder of the agreed order and upon receipt by Board counsel, the order shall be submitted to the full Board at the next regularly scheduled Board meeting for approval or rejection. (11) Upon an affirmative majority vote, the order shall bear the signature of the chair of the Board or the officer presiding at such meeting and shall be included in the minutes of the Board. (12) If the Board does not approve the proposed agreed order, the licensee or certificate holder shall be so informed. The matter shall then be referred back to the Board representative who attended the licensee's or certificate holder's informal settlement conference and Board attorney for consideration of other appropriate action. (13) If the licensee or certificate holder rejects the proposed settlement offered by the Board representative, a formal petition for disciplinary action may be filed by the executive director and the matter referred to the State Office of Administrative Hearings for hearing. sec.466.16. Confidentiality of Informal Settlement Conference. (a) In order to encourage the resolution and early settlement of all contested matters through voluntary settlement procedures, a communication relating to the subject matter made by a licensee or certificate holder while participating in an informal settlement conference before the initiation of formal proceedings, is confidential and may not be used as evidence in any further proceeding. (b) An oral communication or written material used in or made a part of an informal settlement conference is admissible or discoverable if it is admissible or discoverable independent of the conference. (c) If this section conflicts with other legal requirements for disclosure of communications or materials, the issue of confidentiality may be presented to the presiding officer to determine in camera, whether the facts, circumstances and the context of the communications or materials sought to be disclosed warrant a protective order or whether the communications or materials are subject to disclosure. sec.466.17. Prehearing Conference. (a) In a contested case the presiding officer on his or her own motion or on the motion of a party, may direct the party or his or her representative to appear at a specified time and place for a conference prior to the hearing for the purpose of: (1) formulating issues; (2) simplifying issues; (3) discussing matters to be officially noticed; (4) discussing the possibility of making admissions of certain averments of fact or stipulations concerning the use by either or both parties of matters of public record such as official records of the Board to the end of avoiding the unnecessary introduction of proof; (5) ruling on any previously filed motions; (6) discussing the procedures at a hearing; (7) discussing the limitation, where possible, of the number of witnesses; and (8) discussing such other matters as may aid in the simplification of the proceedings. (b) Action taken at the conference may be recorded by a court reporter or in an appropriate order as directed by the presiding officer. sec.466.18. Recording of Hearings. Records of hearings shall be made by mechanical or electronic means at the discretion of the presiding officer. sec.466.19. Motions. (a) Any motion filed in a pending proceeding shall: (1) be in writing; (2) set forth the specific grounds and reasons therefor, and the relief sought; (3) be distributed to all parties of record over a certificate of service as outlined in sec.466.8(d) of this title (relating to Pleadings) and sec.466.11 of this title (relating to Service in Nonrulemaking Proceedings); (4) be filed with the presiding officer not less than five days prior to the hearing date; (5) if based on facts or matters which are not of record, be supported by an affidavit; and (6) be ruled on by the presiding officer at a prehearing conference or at the hearing. (b) Motions for continuance or for dismissal of a complaint shall: (1) comply with subsection (a)(1)-(6) of this section; and (2) make reference to all prior motions of the same nature filed in the same proceeding and shall state whether all parties agree to the relief requested. (c) When a complaint has proceeded to its hearing date, pursuant to the notice issued therein, no continuance or dismissal shall be granted by the presiding officer without the consent of all parties involved. (d) Continuances will not be granted based on the need for discovery if discovery requests have not previously been served upon the person from whom discovery is sought, except when necessary due to surprise or discovery of facts or evidence previously undisclosed despite the diligence of the moving party. If the motion is filed less than five days prior to the hearing, the moving party shall immediately notify the official reporter of the disposition of the motion. sec.466.20. Consolidated Hearings.
                            A motion for consolidation of two or more applications, petitions or other proceedings shall comply with sec.462.19 of this title (relating to Motions). Proceedings shall not be consolidated unless: (1) the proceedings involve common questions of law and fact; and (2) separate hearings would result in unwarranted expense, delay or substantial injustice. sec.466.21. Place and Nature of Hearing. All hearings conducted in any proceeding shall be open to the public. All hearings shall be held in Austin. sec.466.22. Presiding Officer. (a) A presiding officer shall conduct all hearings in accordance with the Administrative Procedure Act, the Act, the rules of this Board, the rules of the State Office of Administrative Hearings and all other applicable law. (b) Except for issuing final orders on the merits or dismissing petitions for disciplinary actions or applications for licensure or certification, the presiding officer shall have broad discretion in regulating the course and conduct of the hearing. The presiding officer shall have the following authority: (1) to hold hearings and issue notices; (2) to administer oaths and affirmations; (3) to direct all parties to enter their appearance on the record; (4) to examine witnesses; (5) to receive evidence; (6) to compel the attendance of witnesses and the production of papers and documents, subject to privileges and exemptions recognized by law; (7) to authorize the taking of depositions, whether oral, telephonic or by video; (8) to rule upon the admissibility of evidence and amendments to pleadings; (9) to limit the number of witnesses whose testimony would be merely cumulative; (10) to set reasonable times within which a party may testify, cross-examine witnesses, or present evidence; (11) to impose sanctions; (12) to recess any hearing; (13) to fix the time for filing of briefs and other documents; (14) to regulate the manner of examination of witnesses to prevent needless and unreasonable harassment, intimidation, expense, inconvenience or embarrassment of any witness or party at a hearing; (15) to remove disruptive individuals; (16) to rule on motions; (17) to issue a proposal for decision, including proposed findings of fact and conclusions of law and a recommended order containing the elements specified in sec.466.36 of this title (relating to Proposals for Decision); (18) to amend the proposal for decision or recommended order or both, based upon exceptions and replies filed by the parties; and (19) to present and explain in person the proposal for decision to the Board for its consideration and final action. sec.466.23. Record. (a) The record in a contested case includes the matters listed in the Administrative Procedure Act, Government Code, sec.2001.060. (b) Proceedings, or any part of them, shall be transcribed on written request of any party. (c) A person requesting a verbatim record shall pay the applicable reporting fees in the Board's court reporting services agreement. (d) The court reporter shall provide the Board the original. (e) Should two or more parties make a request for a verbatim record, the cost shall be borne on a pro rata basis. (f) The court reporter may sell copies of a transcript of a Board proceeding in accordance with the Board's court reporting services agreement, but the Board shall not be precluded from complying with the public's right of access to public information. sec.466.24. Withdrawing the Application. (a) Absent Board authorization or agreement of the parties, an applicant may not withdraw his application without prejudice once the Board has received and taken jurisdiction over the application. (b) An application which has become contested may not be withdrawn except with consent of the parties. The presiding officer will forward the request to withdraw the application and recommendation to the Board. sec.466.25. Discovery. (a) Discovery may be made in a contested case in accordance with the Administrative Procedure Act. (b) Discovery shall be subject to the constraints provided by the Texas Rules of Civil Procedure for privileges, objections, protective orders and duty to supplement as well as the constraints provided in the Administrative Procedure Act. sec.466.26. Evidence. (a) The rules of evidence as applied in nonjury civil cases in the district courts of this state shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. The Board shall give effect to the rules of privilege recognized by law. Opportunity must be afforded all parties to respond and present evidence and argument of all issues involved. (b) Objections to evidentiary offers shall be made and shall be noted in the record. Formal exceptions to rulings of the presiding officer during a hearing shall be unnecessary. It shall be sufficient that the party at the time any ruling is made or sought shall have made known to the presiding officer the action which he or she desires. (c) If evidence is excluded from the record by an exclusionary ruling, the evidence may be included in the record by an offer of proof by the sponsoring party by dictating into the record or submitting in writing the substance of the evidence. An offer of proof shall be sufficient to preserve the evidence for review. (d) Office records of each patient shall have stapled thereto an affidavit in the form approved and furnished by the Board which contains the requisite elements to comply with the Texas Rules of Evidence, sec.902(10)b, relating to form of affidavits. (e) When numerous documents are offered, the presiding officer may limit those admitted to a number which are typical and representative and may, in his or her discretion, require the abstracting of the relevant date from the documents and the presentation of the abstracts in the form of an exhibit; provided, however, that before making such requirement the presiding officer shall require that all parties of record be given the right to examine the documents from which the abstracts were made. sec.466.27. Official Notice.
                              The presiding officer may take official notice of all facts judicially cognizable. In addition, the presiding officer may take official notice of any generally recognized facts within the specialized knowledge of the Board. sec.466.28. Protective Orders.
                                On motion specifying the grounds and made by any person against or from whom discovery is sought, the presiding officer may make any ruling in the interest of justice necessary to protect the party against whom discovery is sought. Specifically, authority as to such rulings extends to, although is not necessarily limited by, any of the following: (1) ruling that requested discovery not be sought in whole or in part, or that the extent or subject matter of discovery be limited, or that it not be undertaken at the time or place specified; or (2) ruling that the discovery be undertaken only by such method or upon such terms and conditions or at the time and place directed by the presiding officer. sec.466.29. Orders Compelling Discovery Requests. (a) Requests for orders compelling discovery shall contain a statement that, after due diligence, the desired information cannot be obtained through informal means; that good faith efforts at negotiation have failed to produce the requested discovery; and, that good cause exists for requiring discovery. (b) The request for a discovery order may be denied if the request is untimely or unduly burdensome in light of the complexity of the proceeding, if the requesting party has failed to exercise due diligence, if the discovery would result in undue cost to the parties or unnecessary delay in the proceeding, or for other good cause in the interest of justice. sec.466.30. Sanctions. After notice and opportunity for hearing, an order imposing sanctions, as are just, may be issued by the presiding officer for failure to comply with an order, subpoena, or commission. The order imposing sanctions may: (1) disallow any further discovery of any kind or of a particular kind by the disobedient party; (2) require the party, the party's representative, or both to obey the discovery order; (3) require the party, the party's representative, or both to pay reasonable expenses, including attorney fees, incurred by reason of the party's noncompliance; (4) direct that the matters regarding which the discovery order was made shall be deemed established in accordance with the claim of the party obtaining the order; (5) refuse to allow the disobedient party to support or oppose designated claims or defenses or prohibit the party from introducing designated matters into evidence; (6) strike pleadings or parts thereof or abate further proceedings until the order is obeyed; or (7) dismiss the action or proceeding or any part thereof or render a decision by default against the disobedient party. sec.466.31. Board Review of Discovery Orders. Any discovery order or order imposing sanctions issued by the presiding officer is subject to review by an interlocutory appeal to the Board according to the stage of the proceeding. The appeal shall be filed with the Board within five days of the action that is the subject of the appeal. The appeal may be considered by the Board chair within 15 days after filing of the appeal. If the Board chair does not make a ruling on the appeal with 15 days after the filing thereof, then the appeal shall be considered denied and the ruling of the presiding officer shall be considered upheld. sec.466.32. Stipulation. Evidence may be stipulated by agreement of all parties. No stipulation or agreement shall be considered unless it is in writing and signed by the parties or their attorneys, or dictated into the record during the course of the proceeding. This section does not limit a party's ability to waive or modify by stipulation any right or privilege afforded by these rules, unless otherwise precluded by law. sec.466.33. Exhibits. (a) Exhibits to be offered in evidence at a hearing shall be of a size which will not unduly encumber the record. Whenever practicable, exhibits shall conform to the size requirements established by sec.466.8 of this title (relating to Form and Content of Pleadings). The pages of each exhibit shall be numbered consecutively. (b) The original or a true and correct copy of each exhibit offered in evidence shall be identified and tendered for inclusion in the record. Copies of the exhibit shall be furnished to the presiding officer, and to each party at or prior to the time the exhibit is offered in evidence. (c) If an exhibit is identified, objected to, and excluded, the presiding officer may determine whether or not the party offering the exhibit wishes to withdraw the offer; if so, the presiding officer shall permit the return of the exhibit to the party. If the excluded exhibit is not withdrawn, it shall be given an exhibit number for identification, shall be endorsed by the presiding officer with the ruling, and shall be included in the record for the purpose of preserving an exception. sec.466.34. Hearing Procedures. (a) The presiding officer shall open the hearing and make a concise statement of its scope and purposes. Appearances shall then be entered by all parties. Thereafter, parties may make motions or opening statements. (b) Parties shall be permitted to make opening statements, offer direct evidence, cross-examine witnesses, and present supporting arguments. The Board or the applicant in a license hearing shall be entitled to open and close. The presiding officer may direct that closing argument be made in writing. The presiding officer may alter the order of procedure if necessary for efficient conduct of the hearing. (c) Voir dire examinations to evaluate the qualifications of a witness to testify may be permitted but will not be substituted for cross-examination. (d) The Board or an applicant in a license hearing may rebut evidence and argument presented by the opposing party. sec.466.35. Oral Argument.
                                  At the conclusion of the hearing, oral argument may be heard upon request of the parties or upon directive of the presiding officer. Reasonable time limits may be prescribed. The presiding officer may require or accept written briefs in lieu of oral arguments. sec.466.36. Proposals for Decision. (a) When required under the provisions of the Administrative Procedure Act a presiding officer shall file a proposal for decision which shall contain: (1) a summary of the evidence adduced by each party; (2) a statement of the presiding officer's reasons for the proposed decision; (3) findings of fact expressed in clear, concise factual terms, neither summarizing nor reciting the evidence. Findings of fact must be based explicitly on the evidence and on matters officially noticed; (4) conclusions of law necessary to the proposed decision; (5) a listing and explanation of all mitigating and aggravating circumstances necessary to a complete understanding of the case by the Board; and (6) recommended disposition or discipline. (b) When a proposal for decision is prepared, a copy of the proposal shall be served forthwith by the presiding officer on each party, his or her representative, and the Board. Service of the proposal for decision shall be in accordance with sec.466.11 of this title (relating to Service in Nonrulemaking Proceeding). (c) If findings of fact are stated in statutory language, each finding must be accompanied by a concise and explicit statement of the facts supporting the finding. (d) Only when the presiding officer requests a party or parties to submit findings of fact will it be necessary for the presiding officer to rule on each proposed finding in the recommended order. sec.466.37. Exceptions and Replies. (a) Any party of record who is aggrieved by the presiding officer's proposal for decision shall have the opportunity to file exceptions to the proposal for decision within 20 days from the date of service of the proposal for decision. Replies to the exceptions may be filed by other parties within ten days of the filing of the exceptions. Exceptions and replies shall be filed with the presiding officer and the Board. Any extensions of time shall be as provided by sec.466.6 of this title (relating to Computation of Time). (b) The form of exceptions and replies are as specified in sec.466.8 of this title (relating to Pleadings). (c) Each exception or reply to a finding of fact shall be concisely stated and summarize the evidence in support thereof. Arguments shall be logical and citations to authorities shall be complete. (d) Briefs shall be filed only when requested or permitted by the presiding officer. (e) Exceptions and replies shall be served upon every party of record by the filing party pursuant to sec.466.11 of this title (relating to Service in Nonrulemaking Proceedings). sec.466.38. Oral Argument.
                                    A request for oral argument before the Board may be incorporated in exceptions, replies to exceptions, motions for rehearing or in separate pleadings, but oral argument shall be allowed during its consideration of a proposal for decision only in the discretion of the Board. sec.466.39. Final Decisions and Orders. (a) The Board may consider the case upon the expiration of ten days after the time for filing of replies to exceptions to the Proposal for Decision. (b) A copy of the decision or order shall be delivered or mailed, certified, return receipt requested to any party and to his or her representative. (c) All final decisions and orders of the Board after consideration of a proposal for decision shall be in writing or stated in the record and signed by the chair or presiding officer. A final order shall including findings of fact and conclusions of law separately stated. (d) As the Board has been created by the legislature to protect the public interest as an independent agency of the executive branch of the government of the State of Texas so as to remain the primary means of licensing and regulating the practice of psychology consistent with federal and state law and to ensure that sound principles of psychology govern the decisions of the Board, it shall hereafter be the policy of the Board to change a finding of fact or conclusion of law or to vacate or modify the proposed order of an administrative law judge when the proposed order is: (1) erroneous; (2) against the weight of evidence; (3) based on unsound principles of psychology; (4) based on an insufficient review of the evidence; (5) not sufficient to protect the public interest; or (6) not sufficient to adequately allow rehabilitation. (e) If the Board modifies, amends or changes the administrative law judge's proposed Order, an order shall be prepared reflecting the Board's changes as stated in the record. sec.466.40. Motions for Rehearing. (a) A motion for rehearing must be filed within 20 days after a party has been notified, either in person or by mail, of the final decision or order of the Board. Replies to the motion for rehearing may be filed within 15 days of the filing of the motion for rehearing. (b) Board action on the motion must be taken within 45 days after the date of rendition of the final decision or order. If Board action is not taken within the 45-day period, the motion for rehearing is overruled by operation of law 45 days after the date of rendition of the final decision or order. The Board may by written order extend the period of time for filing the motions and replies and taking Board action, except that an extension may not extend the period for Board action beyond 90 days after the date of rendition of the final decision or order. In the event of an extension, the motion for rehearing is overruled by operation of law on the date fixed by the order, or in the absence of a fixed date, 90 days after the date of the final decision or order. The parties may by agreement with the approval of the Board provide for a modification of the times provided in this section. (c) An order granting a motion for rehearing vacates the preceding final order. When the Board renders a new final decision, a motion for rehearing directed to the new decision is a prerequisite to appeal. sec.466.41. Costs of Appeal. A party appealing a final decision of the Board in a contested case may be ordered by the Board to pay all or a part of the cost of preparation of the original or a certified copy of the record of the proceeding that is required to be transmitted to the reviewing Court. sec.466.42. Disciplinary Review Panel. A Disciplinary Review Panel, appointed by the Chair of the Board will consist of at least the Executive Director, General Counsel, Investigator, a psychologist licensed by the State of Texas, and a non-psychologist. The Chair of the Board will appoint the Chair of the Panel. The Panel has the authority to offer recommendations to the licensee or certificand for resolution of allegation(s) in an informal settlement conference. sec.466.43. Complaints Review Committee. A Complaints Review Committee, appointed by the Chair of the Board, will consist of at least one psychologist and one non-psychologist. The Committee has the authority to review allegations in order to dismiss or continue the investigations. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 28, 1994. TRD-9435466 Rebecca E. Forkner Acting Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 835-2036 Chapter 467. Announcements 22 TAC sec.467.1 The Texas State Board of Examiners of Psychologists proposes an amendment to sec.467.1, concerning local professional societies listings in yellow pages. The amendment brings the rules in line with the current requirements of the Board by allowing only licensed psychologists and local professional societies whose membership is open to all licensed psychologists and who have obtained approval by the Board to advertise in the yellow pages under the heading of psychologists. Rebecca E. Forkner, acting executive director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. The amendment is promulgated under the authority of the Texas Tax Code, Title 2; therefore, no analysis of the effect on small business is required. Ms. Forkner also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to ensure that it will be easier for the general public to have access to psychological services by qualified professionals in the State of Texas. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 9101 Burnet Road, Austin, Texas 78758, (512) 835-2036. The amendment is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. No statute or code is affected by the proposed amendment. sec.467.1. [Local Professional Societies] Listings in Yellow Pages. Only licensed psychologists may list their name, address, and telephone number in the Yellow Pages under the heading of "Psychologists." Also, local
                                      [Local] professional societies whose membership is open to all licensed psychologists in good standing, and whose purpose, in the determination of the Board, is public service and information, and whose request has been received and approved by the Board, may list the society's name, address, and telephone number in the Yellow Pages under the heading of "Psychologists"
                                        for the purpose of referral to a licensed psychologist. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 28, 1994. TRD-9435443 Rebecca E. Forkner Acting Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 835-2036 Part XXII. Texas State Board of Public Accountancy Chapter 501. Professional Conduct Professional Practices 22 TAC sec.501.11 The Texas State Board of Public Accountancy proposes an amendment to sec.501.11, concerning Independence. The proposed amendment adds "parents" to the definition of close relatives. William Treacy, executive director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Treacy also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the section will be a rule that makes it clear that parents are included in the definition of close relatives. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to J. Randel (Jerry) Hill, General Counsel, 333 Guadalupe Street, Tower III, Suite 900, Austin, Texas 78701-3942. The amendment is proposed under Texas Civil Statutes, Article 41a-1, sec.6(a) , which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary to carry in effect the purposes of the law and sec.21, which lists the reasons for which the Board may take disciplinary action. The amendment implements Texas Civil Statutes, Article 41a-1, sec.6 and sec.21. sec.501.11. Independence. (a)-(d) (No change.) (e) A certificate or registration holder's independence may be impaired by a close relative's association with a client. Close relatives are defined as spouses and dependent persons, whether or not related, and defined as dependent, and non-dependent children, grandchildren, step-children, brothers, sisters, parents,
                                          grandparents, parents-in-law, and their respective spouses. (1)-(2) (No change.) (f) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 20, 1994. TRD-9435492 William Treacy Executive Director Texas State Board of Public Accountancy Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 505-7066 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 37. Maternal and Child Health Services The Texas Department of Health (department) proposes amendments to sec.sec.37.52, 37.56, 37.57-37.58, 37.61-37.64, 37.66 and 37.67, and the repeal of sec.37.68 concerning the Newborn Screening Program. The proposed amendments cover the distribution of metabolic formula for infants/individuals diagnosed with a metabolic disorder (phenylketonuria and homocystonuria) as a result of the Newborn Screening Program. The proposed repeal covers an Oral Health Pilot Project which was effective from April 1, 1988-August 31, 1989, and is no longer applicable. The amendments to sec.sec.37.52, 37.53, 37.56-37.58, 37.64, 37.66, and 37.67 will clarify definitions, screening procedures, collection procedures, and recordkeeping procedures currently used in the program. The amendments to sec.sec.37.61-37.63 will require patients to obtain metabolic formula from routine sources of medical prescription items such as pharmacies and metabolic treatment centers rather than from the department. Obtaining formula items from normal prescription sources will assist to insure that payment for the formula product will be made from appropriate sources such as insurance companies, Medicaid or the Chronically Ill and Disabled Childrens Services Program. Problem cases or extraordinary situations will be handled on a case by case basis by the newborn screening staff. Fred Hollowell, Chief of Staff Services, Bureau of Women and Children, has determined that for each year of the first five years that the amendments and repeal as proposed will be in effect, there will be fiscal implications to state government as a result of administering the sections. The department (which currently spends $583,000 annually on metabolic formula) becomes the payor of last resort for metabolic formula products which will result in an estimated 90% savings to the state of $524,000. There will be no cost to local government as a result of enforcing or administering the sections. Mr. Hollowell also has determined that for each year of the first five years the proposed sections are in effect, the public benefit anticipated as a result of enforcing or administering the rules will be to assure that costs for metabolic formula products are paid by appropriate sources (Medicaid, insurance, etc.) There will be minimal positive fiscal implications to small businesses in that persons required to comply with these sections will use established systems (pharmacies) to obtain their prescribed metabolic formula products. The anticipated economic cost to persons who are required to comply with the proposed sections will be minimal (insurance copayments). There will be no impact on local employment. Comments on the proposal may be submitted in writing to Carolyn Scruggs, R. N., Newborn Screening Program, Bureau of Women and Children, 1100 West 49th Street, Austin, Texas 78756-3183, (512) 458-7700. Comments will be accepted for 30 days from the date of publication in the Texas Register of the proposed section. Newborn Screening Program 25 TAC sec.sec.37.52, 37.53, 37. 56-37.58, 37.61-37.64, 37.66 37.67 The amendments are proposed under Chapter 33, Subchapter C, of the Health and Safety Code, which provides the board with the authority to adopt rules for the Newborn Screening Program. These sections affect Chapter 33 of the Health and Safety Code. sec.37.52. Definitions. The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise. Program administrator
                                            [coordinator]-The individual employed by the department who administrates and or manages the follow-up portion of the program.
                                              [who acts as administrator of program.] Sickling Hemoglobinopathy (including sickle cell disease) -An inherited condition, which, predisposes an individual to fatal infection and interrupted blood supply to vital organs.
                                                [if not known at the time a physician treats an already ill child, may lead to a fatal outcome.] sec.37.53. Conditions for Which Newborn Screening Tests are Required. Except as permitted in sec.37.54 of this title (relating to Exemption From Screening), all newborns delivered in Texas shall be subjected to two
                                                  [a] screening tests
                                                    [test] for the following conditions: (1)-(5) (No change.) sec.37.56. Blood Specimen Collection for Required Screening Tests. (a) (No change.) (b) Premature or sick newborns may have the initial screen as late as seven days of age. The second screen on premature or sick newborns is to be done at hospital discharge, one month of age, [or] when the newborn attains a weight of 2500 grams, or whenever requested to do so by the Newborn Screening Program (program),
                                                      whichever comes first. (c)-(e) (No change.) sec.37.57. Screening Test Procedures To Be Used.
                                                        Analysis of the blood specimens for the required screening tests must be performed by the Texas Department of Health (department)
                                                          [department]. The department is responsible for identifying and implementing proper laboratory procedures for the screening tests required in sec.37.53 of this title (relating to Conditions for Which Screening Test are Required). (1)-(2) (No change. ) (3) Upon completion of the laboratory determination by the department, laboratory results will be mailed to the submittor of the specimen
                                                            [person specified on the screening collection form]. The department will establish a written policy for communicating the laboratory results. [to the specified person]. sec.37.58. Follow-up and Recordkeeping on Positive Screens. (a) The Texas Department of Health (department)
                                                              [department] will maintain an active system of follow-up for suspected cases of each condition for which screening tests are required. (b) (No change.) (c) The department will identify pediatric specialists in
                                                                [located throughout] the state who are available to provide consultation to physicians regarding the
                                                                  diagnosis and management of newborns with abnormal screening results. When appropriate, the Newborn Screening Program (program)
                                                                    [program] staff will provide the physician with the names of [known] consultants in the physician's geographic area. The program may provide the pediatric specialists who consult with the department with the information about the child and the abnormal screening test result. (d) -(e) (No change.) (f) The department will maintain a registry
                                                                      [roster] of children born in Texas who have been diagnosed as having one of the disorders for which screening tests are required. sec.37.59. Coordination with Chronically Ill and Disabled Children's Services Program. (a) All newborns and other individuals under the age of 21 years who have been screened and have been found to be presumptively positive through the Newborn Screening Program (program)
                                                                        [program] may be referred, if financially eligible, to the
                                                                          [and deemed to be financially appropriate, will be referred] Texas Department of Health's (department's)
                                                                            [department's] Chronically Ill and Disabled Children's Services Program (CIDC) [for determination of eligibility for services through CIDC's general eligibility criteria]. (b) An individual
                                                                              [Individuals] who is
                                                                                [are] determined to be eligible for CIDC services shall be
                                                                                  given [will receive] approved services through that program
                                                                                    , including special dietary formula for individuals who have phenylketonuria and homosystinuria
                                                                                      through CIDC. An individual who does not meet that eligibility criteria shall be referred to the Newborn Screening Program for a determination of eligibility for Newborn Screening Program Services. [(c) Individuals who do not meet the CIDC eligibility criteria will be referred to the Newborn Screening Program for determination of eligibility for the newborn screening's services based upon a sliding scale of financial eligibility.] sec.37.61. Eligibility Requirements. (a) Except as otherwise provided for in these sections, to be eligible to receive program services, an individual must: (1) have a confirmed diagnosis of a disorder screened by the Newborn Screening Program (program)
                                                                                        [heritable disease or hypothyroidism]; (2)-(5) (No change.) (6) upon request from the program [coordinator] provide updated medical, financial, and residency information and/or documentation; and (7) (No change.) (b) An individual is not eligible to receive services from the program at no cost or reduced cost to the extent that the individual or the parent, managing conservator, guardian, or other person with a legal obligation to support the individual is eligible for some other benefit, such as Medicaid, Chronically Ill and Disabled Children (CIDC), or private insurance, that would pay for all or part of the services. (c) The Texas Department of Health (department) may waive ineligibility if the department finds that: (1) good cause for the waiver is shown; and (2) enforcement of the requirement would tend to dissrupt the administration or prevent the provision of services to an otherwise eligible recipient. sec.37.62. Application Process. (a) To be considered for Newborn Screening Program (program)
                                                                                          [program] services, a complete application (copy attached)
                                                                                            for admission to the program must be filed annually
                                                                                              with the program administrator
                                                                                                [coordinator] by mailing to the following address: Newborn Screening Program, Bureau of Women and Children
                                                                                                  [Bureau of Maternal and Child Health], Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (b)-(c) (No change.) (d) A complete application for program services shall consist of the following: (1) (No change.) (2) a statement from the individual or, if the individual is a minor, from the individual's parent, managing conservator or gaurdian that the individual is a bona fide resident of the state and if requested by the program administrator, documentation of residency status
                                                                                                    [a statement from the individual's attending physician that the individual has a confirmed diagnosis of a heritable disease or hypothyroidism and an order from the physician authorizing the provision of services]; (3) a copy of the following
                                                                                                      [a social security card (or an allowable substitute) as follows]: (A) if the individual is an adult, the individual's gross income on the latest From 1040 filed with the Internal Revenue Service: or,
                                                                                                        [a copy of the individual's personal social security card issued by the Social Security Administration;] (B) if the individual is a minor, the individual's parent(s), managing conservator(s), or guardian's latest Form 1040 filed with the Internal Revenue Service, including gross income and number of dependents; or
                                                                                                          [a copy of a fully executed application for a replacement social security card;] (C) if the individual is a ward, the guardian's latest appropriate form filed with the Internal Revenue Service; or
                                                                                                            [a copy of an application for a social security number, if the individual never had a number issued previously;] (D) the Form 1040 of any other person with the duty to support the individual; and (4) the applicant or recipient shall inform the department of any other benefit to which the applicant, recipient or person with a legal obligation to support the applicant or recipient may be entitled.
                                                                                                              [a statement from the individual or, if the individual is a minor, from the individual's parent, managing conservator, or guardian that the individual is a bona fide resident of the state and if requested by the program coordinator, documentation of residency status; [(5) a statement disclosing the following: [(A) if the individual is an adult, the individual's gross income on the latest Form 1040 filed with the Internal Revenue Services; or [(B) if the individual is an minor, the gross income of the individual's parent(s), managing conservator(s), or guardian on the latest Form 1040 filed with the Internal Revenue Service; or [(C) if the individual is a ward, the gross income of the guardian on the latest appropriate form filed with the Internal Revenue Service; or [(D) the income of any other person with the duty to support the individual; and [(E) if requested by the program coordintor, documentation of income;] (e) An application shall be deemed incomplete for any one of the following reasons: (1) failure to provide all
                                                                                                                information requested in the application form; (2) lack of supporting documents[, including the statement of medical eligibility and an order from the attending physician]; (3) failure to provide documentary evidence requested by the program [coordinator], including documentation to verify residency or financial data; or (4) (No change.) (f) An application will be reviewed [by the program coordinator] and will be: (1)-(3) (No change.) (g) The program [coordinator] will notify the individual of the eligibility decision in writing within 30 days from the date on which a complete application is received. If the eligibliity decision is in favor of the individual, in the notice letter, the program [coordinator] will specify the amount of financial participation that the individual, or if the individual is a minor or a ward, the individual's parent(s), managing conservator(s), or gaurdian as appropriate, will be required to make for program services and provide additional detailed information concerning the sevices and financial participation procedures. (h) An individual's date eligibility will be considered to be the date on which the program [coordinator] determines that the application is substantially complete. sec.37.63. Calculation of Financial Participation Obligation. (a) The program [coordinator] shall base the calculation of an individual's financial participation obligation upon the current federal poverty income guidelines. The commissioner shall adjust the income guidelines as needed to conform to changes in the federal guidelines as those changes occur. The current income guideline will be filed with these sections in the Newborn Screening Program (program)
                                                                                                                  [program] office and shall be available for public inspection during regular office hours. Income guideline adjustments will also be published in the Texas Register not later than 30 days after the date on which they have been adopted by the program administrator
                                                                                                                    [coordinator]. (b) The following financial participation scale lists the copayment obligation for program services. [graphic] (c) The program [coordinator] will determine if an individual, or if the individual is a minor or a ward, the individual's parent(s), managing conservator(s), or guardian, as appropriate, is able to pay in accordance with the schedule for financial participation; however, the program [coordinator] will not deny services because of an individual's inability to pay. (d) (No change.) (e) The program [coordinator] may not require a financial participation which exceeds the cost to the program of providing the service. sec.37.64. Denial of Application; Modification, Suspension, Termination of Program Services. (a) An individual applying for or receiving services from the Newborn Screening Program (program)
                                                                                                                      [program] may have his/her application denied or his/her benefits modified, suspended, or terminated for any of the following reasons. (1) Services will be denied, modified, suspended, or terminated if: (A) -(B) (No change.) (C) the individual fails or refuses to provide the periodic information regarding residency and financial status when requested by the program [coordinator]; (D)-(H) (No change.) (2) Services may be denied, modified, suspended, or terminated if: (A) the individual submits an application form or any document required in support of the application or continued participation in the program, which contains a misstatement of fact which is material to the program administrator's
                                                                                                                        [coordinator's] determination that the individual is eligible for program services; or (B) (No change.) (b) Procedure for denial, modification, suspension, or termination do not apply to adjustments made by the program in poverty income guidelines to conform to federal poverty income guidelines or to adjustments in the type and amount of program services available when such adjustments are necessary to conform to budgetary limitations as provided in sec.37.60 of this title (relating to Scope of Newborn Screening Program Services). (1)-(2) (No change.) (3) Within 30 days after receving notice as specified in paragraph (2) of this subsection, the individual or the individual's representative may appeal the program's decision to deny, suspend, modify, or terminate the services to the department and request an administrative hearing before the department. Appeals and request for hearings must be in writing and sent the following address by certified mail: Administrator
                                                                                                                          [Coordinator], Newborn Screening Program, Bureau of Women and Children
                                                                                                                            [Bureau of Chronically Ill and Disabled Children's Services Program], Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3190. Failure to respond will be deemed a waiver of the appeal and of the opportunity for a hearing. (4) (No change.) sec.37.66. Confidentiality of Information. (a) All information required by these sections to be submitted may be verified at the discretion of the Texas Department of Health (department)
                                                                                                                              [department] with or without notice to any individual applying for or recipient of Newborn Screening Program (program)
                                                                                                                                [program] benefits, or to the providers of program services. Except as necessary for [the program coordinator to make] timely and effective referral [of newborns with presumptive positive screening test results] for diagnostic services or to ensure appropriate
                                                                                                                                  [obtain necessary assistance for the] management for individuals with confirmed diagnosis, the information received by the program in the administration of the program is confidential to the extent authorized by law. (b) (No change.) sec.37.67. Nondiscrimination Statement. The Texas Department of Health operates in compliance with Civil Rights Act of 1964 Title VI (Public Law 88- 352) and Part 80 of Title 45, Code of Federal Regulations, so that no person will be excluded from participation in the Newborn Screening Program (program)
                                                                                                                                    [program], be denied benefits of the program, or be otherwise subjected to discrimination on the grounds of race, color, national origin, sex, creed, disability
                                                                                                                                      [handicap], or age. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on February 1, 1994. TRD-9435559 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 458-7700 Newborn Screening Program 25 TAC sec.37.68 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under Chapter 33, Subchapter C, of the Health and Safety Code, which provides the board with the authority to adopt rules for the Newborn Screening Program. These sections affect Chapter 33 of the Health and Safety Code. sec.37.68. Oral Health Pilot Project. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on February 1, 1994. TRD-9435575 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 458-7700 Chapter 97. Communicable Diseases Tuberculosis Screening for Jails and Other Correctional Facilities 25 TAC sec.sec.97. 171-97.180, 97.190 The Texas Department of Health (the department) proposes new sec.sec.97.171- 97.180 and sec.97.190, concerning the screening and treatment for tuberculosis in jails and other correctional facilities. These rules are required by the Texas Health and Safety Code, Chapter 89, which was added by Chapter 786 (Senate Bill 57) of the 73rd Legislature, Regular Session. As required by the legislation, these guidelines and rules relate to the screening and treatment for tuberculosis of employees, volunteers, and inmates in county jails and other correctional facilities that have bed capacities of 100 or more. Inmates must be tested on or before the 14th day the inmate is first confined. An inmate with a positive skin test must receive a chest x-ray and a medical evaluation for treatment. An employee or volunteer with a positive skin test must obtain a diagnostic evaluation from his or her own physician to determine if the person has tuberculosis. Anita Martinez, chief of staff services, has determined that for each year of the first five years that the new sections as proposed will be in effect, there will be fiscal implications to state government as a result of administering the sections. The probable cost of implementing the sections is estimated for the department as $584,419 for fiscal year (FY) 1994 and $639, 386 for FY 1995-FY 1998. Probable cost to the Department of Criminal Justice is $542,675 for FY 1994-1998. Probable cost to local governments out of local funds is $542,675 for FY 1994-1998. The change in number of state employees is estimated to be an increase of one from FY 1993. The public will benefit from the identification of persons with tuberculosis infection or disease who may then be treated so that they will not transmit tuberculosis in the future to other persons. There is no anticipated effect on small businesses, local employment or individuals. The cost to local government is considered in the fiscal note. Comments may be submitted to John A. Bybee, Director, Tuberculosis Elimination Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7447. Comments will be accepted for 30 days from the date of publication in the Texas Register of the proposed sections. These sections constitute the Texas Department of Health's recommendation to the Commission of Jail Standards and Texas Department of Criminal Justice required by sec.89.072 of the amended Texas Health and Safety Code, and the minimum standards for counties, judicial districts, and private entities required by sec.89.073. They also constitute the screening guidelines authorized by the Texas Health and Safety Code, sec.89.011 and sec.89.073. Rules to prevent communicable disease are also authorized by the Texas Health and Safety Code, sec.81.004; and sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the Commissioner of Health. Chapter 89 of the Texas Health and Safety Code is affected by these proposed new sections. sec.97.171. Purpose. These sections establish regulations for screening and treatment for tuberculosis of employees, volunteers and inmates in county jails and other correctional facilities that have bed capacities of 100 or more. sec.97.172. Scope. These sections cover the screening process (tests, administration of tests, interpretation of tests, vaccination, x-rays, frequency of screening tests, and exemption from testing); professional examinations, criteria for repeat testing and preventive therapy; diagnostic evaluations, isolation and disease prevention; treatment; reporting requirements; and record keeping for all employees, volunteers, and inmates of county jails and other correctional facilities in Texas. sec.97.173. Screening. Screening for tuberculosis (TB) in institutional settings usually involve skin testing for tuberculous infection and additional evaluation of those who are infected. In some correctional facilities, it may be more practical to screen with chest x-rays to identify individuals with lung abnormalities suggestive of pulmonary tuberculosis. While the chest x-ray method is more expensive it can be an acceptable technique to identify and segregate tuberculosis suspects. (1) Tuberculin skin test. (A) The tuberculin skin test utilizing purified protein derivative (PPD) is the standard method of identifying persons infected with Mycobacterium tuberculosis, the causative agent of TB. The intradermal Mantoux PPD test, not a multiple puncture test, shall be used to detect tuberculous infection. (B) The Mantoux PPD test is the only type of testing material that is supplied by the Texas Department of Health (department). (2) Administration of tests. (A) The Mantoux PPD test can be applied by anyone properly trained in tuberculin skin testing procedures including applying, reading and interpretation. (B) Unlicensed personnel should be supervised by licensed health care workers according to the requirements of the Board of Medical Examiners and Board of Nurse Examiners in conformity with the Texas Medical Practice Act and the Nurse Practice Act, sec.218.11 and other applicable laws. (3) Interpretation of tests. (A) The Mantoux PPD test shall be read 48 to 72 hours after injection. However, if the person is not available for the scheduled reading, positive reactions may still be measurable up to one week after testing. The reading shall be based on measurement of induration (palpable swelling), not erythema (redness). The diameter of induration shall be measured transversely to the long axis of the forearm and recorded in millimeters. (B) A reaction of 5 mm or greater shall be considered positive in persons who are human immunodeficiency virus (HIV) infected, who are contacts to cases, or who have abnormal chest x-rays consistent with active or inactive tuberculosis. All other persons tested in a corrections facility will be considered positive if their skin test reaction is 10 mm or greater. (C) Absence of a reaction to the tuberculin test does not exclude the diagnosis of TB or tuberculous infection. Persons who have symptoms consistent with active tuberculosis shall be evaluated for disease even if they have a negative skin test. (D) The PPD test can be read by anyone properly trained in tuberculin skin testing procedures including applying and reading. (E) Positive tuberculin reactions in Bacillus Calmette-Guerin (BCG)-vaccinated persons usually indicate infection with TB. Such persons shall be evaluated for preventive therapy. Skin tests should be interpreted without regard to a history of BCG vaccination. (4) Scope. Skin test screening for tuberculosis shall be performed on employees and volunteers as well as inmates of county jails and correctional facilities as follows. (A) Employees. (i) Employees who share the same air with inmates shall be screened according to this section unless the employee or volunteer is exempt as described in clauses (ii), (iii) or (iv) of this subparagraph. A certificate or similar document may be used to record results. The recommended certificate is located in sec.97.179 of this title (relating to the Tuberculosis Record). (ii) Employees with a history of a positive tuberculin skin test shall provide documentation of the test and any appropriate medical follow-up or a certificate signed by a physician or registered nurse. The documentation shall be included in the certificate or a similar document. (iii) Employees are exempt from screening if the screening conflicts with the tenets of an organized religion to which they belong. (iv) Employees may be exempt from screening if medically contraindicated based on an examination signed by a physician. The only valid contraindication is a documented history of severe reaction to a tuberculin skin test. (B) Volunteers. (i) All volunteers who share the same air space with inmates on a regular basis (more than 30 hours per month) shall be screened according to this section unless the volunteer is exempt as described in clauses (ii), (iii) or (iv) of this subparagraph. A certificate or similar document may be used to record results. The recommended certificate is located in sec.97.179 of this title. (ii) Volunteers with a history of a positive tuberculin skin test shall provide documentation of the test and any appropriate medical follow-up or a certificate signed by a physician or registered nurse. The documentation shall be included in the certificate or a similar document. (iii) Volunteers are exempt from screening if the screening conflicts with the tenets of an organized religion to which they belong. (iv) Volunteers may be exempt from screening if medically contraindicated based on an examination signed by a physician. The only valid contraindication is a documented history of severe reaction to a tuberculin skin test. (C) Inmates. (i) With the exception of those inmates who meet the criteria in clauses (iii), (iv) or (v) of this subparagraph, all inmates who reside (or are expected to reside) in the facility for 14 days or longer shall be screened according to this section. A certificate or similar document may be used to document results. The recommended certificate is located in sec.97.179 of this title. (ii) All inmates must have a screening test if the inmate shows symptoms of tuberculosis or if the inmate has been recently exposed to a diagnosed case of tuberculosis or a tuberculosis suspect and the inmates are not known to be previous positive reactors. (ii) All inmates must have a screening test unless the inmate has documented results of at least one screening test during the previous 12-month period. Inmates with a history of a positive tuberculin skin test shall provide documentation of the test and any appropriate medical follow-up or a certificate signed by a physician or registered nurse. The documentation shall be included in the certificate or a similar document. (iv) Inmates are exempt from screening if the screening conflicts with the tenets of an organized religion to which they belong. (v) Inmates may be exempt from screening if medically contraindicated based on an examination signed by a physician. The only valid contraindication is a documented history of severe reaction to a tuberculin skin test. (5) X-ray screening programs. (A) Correctional facilities may elect to perform chest x-rays on inmates instead of a skin test screening program. (B) If inmate chest x-rays screening is done on inmates, the requirement for skin test screening of staff and volunteers will remain in effect. (6) Frequency of screening tests. (A) Frequency. Annual (or more frequent) tuberculosis (TB) screening of employees, volunteers or inmates is required. When a specific situation indicates an increased risk of transmission more frequent TB screening is recommended. (B) Repeat tests. Employees or volunteers who have a verified record of a previous positive test for TB do not have to have repeat tests. sec.97.174. Scope of Professional Examinations/Evaluation. (a) Examination for active tuberculosis (TB). (1) Persons with positive tuberculin skin tests or with skin-test conversions on repeat testing or after exposure shall be clinically evaluated for active TB. Persons with symptoms suggestive of TB shall be evaluated regardless of skin- test results. (2) If TB is diagnosed, appropriate therapy shall be instituted according to accepted medical practice. (A) Persons diagnosed with active TB shall be offered counseling and human immunodeficiency virus (HIV) -antibody testing. (B) The need for counseling and HIV testing should be stressed in persons diagnosed with active TB. (b) TB infection without disease. (1) Persons who have positive tuberculin skin tests or skin-test conversions but do not have clinical TB shall be evaluated for preventive therapy. Persons with positive skin tests shall be evaluated for risk of HIV infection. If HIV infection is considered a possibility, counseling and HIV-antibody testing shall be strongly encouraged. (2) All persons with a history of TB or positive tuberculin tests are at risk for developing TB in the future. These persons shall be reminded periodically that they shall promptly report any pulmonary symptoms. If symptoms of TB shall develop, the person shall be evaluated immediately. (3) Routine chest films are not required for asymptomatic, tuberculin-negative persons. After the initial chest radiograph is taken, persons with positive tuberculin skin-test reactions do not need repeat chest radiographs, unless symptoms develop that may be due to TB. sec.97.175. Diagnostic Evaluations. (a) The following flow chart shows the steps used in the diagnostic evaluation process. [graphic] (b) Bacteriologic examinations of specimens. (1) Persons with TB symptoms and/or chest x-ray suggestive of active TB will need bacteriologic evaluation of sputum or another specimen for "acid fast bacilli" (AFB) smear and culture. (2) Initially, a series of three early morning sputum specimens shall be collected on successive days and examined by smear and culture. Supervision shall be used to ensure proper specimen collection. (3) The Texas Department of Health will supply appropriate sputum collection materials and perform the smear and culture tests. sec.97.176. Treatment. (a) Treatment of infection no disease. (1) Preventive therapy is the administration of a drug to which a person's infecting organism is susceptible. Preventive therapy substantially reduces the risk of developing active tuberculosis (TB) in infected persons. (2) All persons who have a positive skin test shall be considered for preventive therapy when active disease has been ruled out. (b) Treatment of active disease. (1) When symptoms and/or results of skin test, chest x-ray, and sputum smear suggest active tuberculosis (TB), the suspect shall be placed on a TB treatment regimen consisting of four drugs until TB has been ruled out, unless another regimen is indicated due to contraindications to one or more of the preferred drugs. (2) Clinical response to treatment shall be monitored, since the development of drug resistance can be a problem. Persons with clinically active disease shall be monitored bacteriologically through the collection of three sputum samples taken on three consecutive days at least monthly until conversion to negative is confirmed by all cultures being negative in two consecutive months. Persistence or reappearance of organisms in the sputum smear shall create a high index of suspicion for drug-resistant disease or noncompliance with therapy. When this occurs, evaluate compliance and perform drug susceptibility tests, in addition to those obtained from the initial positive cultures. (3) Treatment of TB shall be in accordance with current Centers for Disease Control and Prevention (CDC)/American Thoracic Society (ATS) recommendations and the recommendations of the department. sec.97.177. Prevention of Disease. (a) Respiratory isolation of inmates. (1) To prevent the spread of tuberculous (TB) infection in the facility, it is important to recognize and isolate inmates who have symptoms suggestive of TB disease. Officers and health care staff shall suspect TB in inmates with persistent cough (more than two weeks duration), especially in the presence of other symptoms or signs compatible with TB, such as weight loss, night sweats, bloody sputum, anorexia or fever. These inmates should be evaluated promptly for TB. The inmate should not leave isolation until TB is excluded or the inmate is on therapy and documented to be noninfectious. (2) Inmates suspected of having TB should be placed in respiratory isolation until they are no longer infectious. Inmates who are cases or suspects should be released from isolation only after infectiousness has been ruled out. Three consecutive negative sputum smears collected on different days must be obtained before an inmate who has had a positive smear can be considered non-infectious. (3) Cough-inducing procedures can place health staff and nearby inmates at special risk of acquiring TB infection. These procedures include sputum collection, bronchoscopy, and the administration of aerosolized pentamidine. It is very important to carry out such procedures in an individual room or booth with negative pressure relative to adjacent rooms and hallways, ideally with room or booth air exhausted directly to the outside and away from all windows and air intake ducts. Inmates should remain in the booth or treatment room and not return to common areas until coughing has subsided. (4) The installation of ultra violet (UV) lights may be considered in some facilities, especially in high volume, high turnover holding facilities. However, UV lights shall be used only to supplement other control measures (such as good ventilation). Proper precautions and scheduled maintenance of the lights are essential. (b) Work restrictions for jail employees and volunteers. (1) Jail facility employees and volunteers with current pulmonary or laryngeal TB pose a risk to inmates and others while they are infectious; therefore, stringent work restrictions for these persons are necessary. They shall be excluded from work until adequate treatment is instituted, cough is resolved, and sputum is free of bacilli on three consecutive smears. Employees and volunteers with current TB at sites other than the lung or larynx usually do not need to be excluded from work if concurrent pulmonary TB has been ruled out. Employees and volunteers who discontinue treatment before the recommended course of therapy has been completed shall not be allowed to work until treatment is resumed, an adequate response to therapy is documented, and they have negative sputum smears on three consecutive days. (2) Employees and volunteers who are otherwise healthy and receiving preventive treatment for tuberculous infection shall be allowed to continue usual work activities. (3) Employees and volunteers who cannot take or do not accept or complete a full course of preventive therapy shall have their work situations evaluated to determine whether reassignment is indicated. Work restrictions may not be necessary for otherwise healthy persons who do not accept or complete preventive therapy. These persons shall be counseled about the risk of developing disease and shall be instructed to seek evaluation promptly if symptoms develop that may be due to TB, especially if they have contact with high-risk inmates (i.e., inmates at high risk for severe consequences if they become infected). sec.97.178. Reporting. (a) Cases. (1) All suspected or diagnosed cases of tuberculosis (TB), tuberculin converters and tuberculin reactors shall be reported to the local health authority or a Texas Department of Health Regional Office. (2) This information shall be reported using the Texas Department of Health Report of Case and Patient Services (TB-400) Form as follows. This form is available from local health departments, Texas Department of Health Regional Offices, or the TB Elimination Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. [graphic] (b) Tuberculin tests. Aggregate numbers of positive tests, total tests administered and total tests read shall be reported monthly to the local health authority. sec.97.179. Tuberculosis Record. (a) Form and content of the certificate. The certificate is part of a multipurpose form Tuberculosis Record, which shall be used for certification that an employee or volunteer does not have tuberculosis; a medical record of the screening, evaluation and/or treatment of an employee or volunteer or an inmate; or as a medical transfer record for employees, volunteers or inmates moving from one correctional facility to another. This form, or equivalent information, must accompany an inmate whenever he or she is transferred from one correctional facility to another. (b) Deadline for filing a certificate. The deadline for filing certificates is one month after the certificate is completed and signed by a physician. The certificate shall be filed with the local health authority. (c) Tuberculosis record. The Tuberculosis Record is a multipurpose report form that can be used for a Certificate, Record of Transfer and/or a Tuberculosis History Record. The form should be used to submit the reports pertaining to an employee, volunteer or inmate of a jail or correctional facility. The form to be used is as follows and is available from the Texas Department of Health upon request. [graphic] sec.97.180. Resource Allocation.
                                                                                                                                        Under the terms of Chapter 786, sec.3, 73rd Legislature, Regular Session (Act), the costs of providing inmate screening, evaluation and treatment is supported by a combination of individual counties and judicial districts, Texas Department of Health (department), and Texas Department of Criminal Justice (TDCJ) funds. The following terms govern this allocation. (1) Texas Department of Health. The Texas Department of Health (department) shall supply the materials, drugs, and laboratory services to jails and community corrections facilities that are necessary to accomplish the screening required by the Act, and provide other services requested by individual counties and judicial districts, where such services can be reasonably provided. These materials, drugs and services may be requested from the Texas Department of Health, Tuberculosis Elimination Division, 1100 West 49th Street, Austin, Texas 78756. (2) Texas Department of Criminal Justice. (A) The Texas Department of Criminal Justice (TDCJ) shall provide funds for administering screenings, evaluating inmates, and administering drugs to two classes of inmates suspected of having an active case of tuberculosis. The two classes are: (i) inmates whose paperwork and processing required under Code of Criminal Procedure, sec.8, Subsection (a), Article 42.09, has been completed; and (ii) inmates in a community corrections facility. (B) The TDCJ shall reimburse a county or judicial district in the same manner provided for reimbursements under Government Code, sec.499.123. (3) Counties and Judicial Districts. Counties and judicial districts shall provide funds for administering screenings, evaluating inmates and administering drugs to inmates suspected of having an active case of tuberculosis: (A) for inmates who are pretrial, inmates whose paperwork and processing under Code of Criminal Procedure, sec.8, Subsection (a) , Article 42.09, is not completed; and (B) for inmates who are not to be transferred to a TDCJ facility. sec.97.190. Approval of Local Jail Screening Standards. (a) Counties, judicial districts, and private entities operating community corrections facilities shall adopt local standards for screening tests of employees, volunteers, and inmates. (b) The standards required in subsection (a) of this section shall, at minimum, be compatible with, and at least as stringent as, the standards set out in these sections. In addition the standards shall incorporate the requirements set out in the Texas Health and Safety Code, sec.sec.89.001-89.072. (c) Prior approval of the Texas Department of Health (department) shall be obtained before the adoption of local jail standards. (d) Prior to final adoption of local jail standards, the rules shall be submitted to the Texas Department of Health, Tuberculosis Elimination Division, 1100 West 49th Street, Austin, Texas 78756-3199. The department shall review these rules to determine their compliance with subsection (b) of this section and the Texas Health and Safety Code, sec.89.073. This approval shall be from the director of the Tuberculosis Elimination Division. If the approval is denied by the director of the Tuberculosis Elimination Division, the county, judicial district, or private entity may appeal the denial to the Bureau Chief, Bureau of Communicable Disease Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (e) The local standards shall be adopted by March 15, 1994. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on February 2, 1994. TRD-9435558 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 458-7447 Chapter 98. HIV and STD Control Subchapter C. Texas HIV Medication Program General Provisions 25 TAC sec.98. 104, sec.98.105 The Texas Department of Health (department) proposes amendments to sec.98.104 and sec.98.105, concerning the Texas HIV Medication Program. The sections implement the provisions of the "Communicable Disease Prevention and Control Act," Health and Safety Code, Chapter 85.063, Subchapter C, concerning the Texas HIV Medication Program. The program assists hospital districts, local health departments, public or nonprofit hospitals and clinics, nonprofit community organizations, and HIV-infected individuals in the purchase of medications approved by the board that have been shown to be effective in reducing hospitalizations due to HIV-related conditions. Generally, the sections cover eligibility for participation and medication coverage. The amendments expand coverage of the program to include Itraconazole for eligible participants for the treatment of Blastomycosis and Histoplasmosis. In addition, these amendments are adopted on an emergency basis in this issue of the Texas Register in order to expeditiously provide medications to HIV-infected individuals. Anita Martinez, Chief of Staff Services for the Disease Control and Prevention Associateship, Texas Department of Health, has determined that for the first five-year period the sections will be in effect, there will be no fiscal implications for state government or local government as a result of enforcing or administering the sections as proposed. Ms. Martinez also has determined that for each year of the first five-year period the section is in effect, the public benefit anticipated as a result of enforcing the section will be to expand coverage of the program to include Itraconazole to treat HIV program participants. There is no anticipated economic cost to small or large businesses to comply with the sections as proposed; no anticipated cost for persons who may be required to comply with this proposal; and no effect on local employment. Comments on the proposal may be submitted to Charles E. Bell, M.D., Chief, Bureau of HIV & STD Prevention, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756 (512) 458-7500. Comments will be accepted for 30 days after publication of the proposal in the Texas Register. The amendments are proposed under the Health and Safety Code, sec.85.063, which provides the Texas Board of Health with the authority to adopt rules concerning a Texas HIV Medication Program; and Health and Safety Code, sec.12. 001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the Commissioner of Health. The amendments affect Health and Safety Code, Chapter 85. sec.98.104. Medication coverage. The following medications will be provided to each eligible participant. (1)-(14) (No Change.) (15) Itraconazole must be provided in increments of 30 capsules not to exceed 90 capsules per month. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on February 2, 1994. TRD-9435556 Susan K. Steeg General Counsel Texas Department of Health Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 458-7500 Chapter 229. Food and Drug Permitting Retail Food Establishments 25 TAC sec.sec.229.370-229.374 The Texas Department of Health (department) proposes new ssec.229.370- 229.374, concerning the permitting of retail food stores, food service establishments, mobile food units, roadside food vendors and temporary food service establishments not regulated by a county or public health district. Specifically, the sections cover definitions; fees; minimum standards for permitting and operation; refusal, revocation, or suspension of a permit; and administrative penalties. Senate Bill 1421, 73rd Legislature, 1993, amended the Texas Health and Safety Code, Chapter 437, and requires these establishments to be permitted. These new sections will enable the department to collect permitting fees to recover the costs of establishing a retail establishment inventory, implementing surveillance activities, monitoring violative facilities, instituting permit sanctions, and promoting food safety training within the regulated industry. In addition, these sections will provide funding for additional staff positions to inspect retail facilities to ensure that foods from an approved source are stored in a sanitary environment, prepared in a hygienic manner, and served in a safe and wholesome condition. Dennis Baker, director, Division of Food and Drug, has determined that for the first five-year period the sections are in effect there will be fiscal implications as a result of enforcing or administering the sections. The effect on state government for the first year will be an estimated additional cost of $1,634,673 based on additional department staff needed for inspection and permitting of facilities for the first year. The estimated additional cost to state government for the following four years will be $1,526,963 each year for employment of staff to continue inspection and permitting of facilities. The revenue generated will be used to offset the costs of administering the program. There will be no effect on local government. Mr. Baker also has determined that for each of the first five years the sections are in effect the public benefit anticipated as a result of the section will be the protection of public health by establishing uniform requirements for retail food operations. There will be economic costs to persons and small businesses who are required to comply with the proposed sections as a result of a required permit fee. There will be no effect on local employment. Comments on the proposal may be submitted to Dennis Baker, Acting Director, Division of Food and Drugs, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 719-0200. Comments will be accepted for 30 days following the date of publication of this section in the Texas Register. In addition, a public hearing will be held in Austin, Texas, on Monday, March 7, 1994, at 9:00 a.m. Texas Department of Health, Lecture Hall, 1100 West 49th Street. The new sections are proposed under the Health and Safety Code, Chapter 437. 0056, which provides TDH with the authority to adopt necessary regulations pursuant to the enforcement of this Chapter; and sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, Texas Department of Health, and the Commissioner of Health. Chapter 437 of the Health and Safety Code is affected by these proposed new sections. sec.229.370. Purpose. The purpose of these sections are to implement Health and Safety Code, Chapter 137 which required the Texas Department of Health to establish a permitting system for inspecting retail food service establishments for the public health by establishing uniform requirements for retail food operations. sec.229.371. Definitions. The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise. Food-Any raw, cooked, or processed edible substance, ice, beverage or ingredient used or intended for use or for sale in whole or in part for human consumption. Food service establishment-Any place where food is prepared and intended for individual portion service, and includes the site at which individual portions are provided. The term includes any such place regardless of whether the consumption is on or off the premises and regardless of whether there is a charge for the food. The term also includes delicatessen-type operations that prepare sandwiches intended for individual portion service. The term does not include private homes where food is prepared or served for individual family consumption, retail food stores, the location of food vending machines, and supply vehicles. All definitions found in sec.229.162 of this title (relating to Definitions) under the rules on food service sanitation; and all definitions found in sec.229.231 of this title (relating to General Provisions) under the rules on retail food store sanitation are applicable to these sections except that, for purposes of obtaining a permit and payment of fees only, the term "food service establishment" does not include: (A) establishments permitted and inspected under "home rule" by a municipal health authority; (B) federally inspected establishments on federal property; (C) correction facilities under the inspection of the Texas Department of Criminal Justice; (D) nursing homes under the inspection of Long-Term Care Regulatory in the Texas Department of Human Services; (E) hospitals under the inspection of the Division of Health Facility Licensure and Certification in the department and which do not serve food to the general public; (F) food service facilities on state campuses inspected by state college or university personnel in accordance with the requirements of sec.229.373 of this title (relating to Minimum Standards for Permitting and Operation); and (G) establishments licensed under the Health and Safety Code, Chapter 431, as manufacturers of food, provided the fee for licensure exceeds the permit fee required under sec.229.372 of this title (relating to Permitting Fees and Procedures). Retail food store-Any establishment or section of an establishment where food and food products are offered to the consumer and intended for off-premise consumption. The term includes delicatessens that offer prepared food in bulk quantities only. The term does not include establishments which handle only prepackaged, nonpotentially hazardous foods; roadside markets that offer only fresh fruits and fresh vegetables for sale; food service establishments; farmers markets; or food and beverage vending machines as defined in the Vending of Food and Beverages, 1978, Department of Health, Education and Welfare Publication Number (FDA) 78-2091. Bed and breakfast -A private residence where lodging is provided and potentially hazardous food is prepared for overnight customers only. A bed and breakfast is classified as food service establishment. Day care center -Any facility licensed to receive 13 or more children for day care. A day care center is classified as a food service establishment. School food service facility-A food service establishment where food is prepared and intended for service primarily to students in institutions of learning including, but not limited to, public and private kindergarten, preschool and elementary schools, junior high schools, high schools, colleges, and universities. A school food service facility is classified as a food service establishment. Nonprofit organization -A civic or fraternal organization, charity, church, lodge, association, proprietorship or corporation possessing a 501(C)(3) exemption under the Internal Revenue Code. Pushcart-A non self-propelled mobile food unit limited to serving nonpotentially hazardous foods or prepackaged foods maintained at proper temperatures, or limited to the preparation and serving of frankfurters. A pushcart is classified as a mobile food unit. Roadside food vendor-A person who operates a mobile retail food store from a temporary location adjacent to a public roadway or highway. Potentially hazardous foods shall not be prepared or processed by roadside food vendors. A roadside food vendor is classified as a retail food store. Potentially hazardous food-Any food that consists in whole or in part of milk or milk products, eggs, meat, poultry, fish, shellfish, edible crustacea, or other ingredients including synthetic ingredients, in a form capable of supporting rapid and progressive growth of infectious or toxigenic microorganisms. The term does not include clean, whole, uncracked, odor-free shell eggs or foods which have a pH level of 4.5 or below or a water activity (Aw) value of 0.85 or less. Mobile food unit-A vehicle-mounted food service establishment designed to be readily moveable. sec.229.372, Permitting Fees and Procedures. (a) Permitting Fees. (1) A person who operates a food service establishment, mobile food unit, day care center, bed and breakfast establishment, school food service facility, retail food store, or a mobile retail food store shall obtain a permit annually from the Texas Department of Health (department) and pay a permit fee for each establishment unless specifically exempted under subsection (b) of this section. An organizer of an event at which a temporary food service establishment is operated shall obtain a permit from the department for each temporary food service establishment. The temporary permit application must be submitted to the department ten days prior to the event. (2) The permit fee for a food service establishment, retail food store, or bed and breakfast establishment shall be based on the gross annual volume of food sales as follows: (A) $75 per establishment having a gross annual volume of $0 to $49,999.99; (B) $150 per establishment having a gross annual volume of $50,000 to $149,999.99; (C) $250 per establishment having a gross annual volume of $150,000 or more. (3) The permit fee for a school food service facility, day care center, mobile food unit, or roadside food vendor, shall be $75 annually for each location. (4) The permit fee for a temporary food service establishment is $25. The permit shall be valid for the duration of a single event not to exceed 14 consecutive days from the initial effective date specified in the permit application. (5) An establishment required to be licensed as a food manufacturer under the Health and Safety Code, Chapter 431, and also required to be permitted under this Chapter, will be issued only one license or permit. The license or permit fee to be paid will be the higher fee of the two applicable fees. (6) Gross annual volume of food sales may be verified by data from the State Comptroller of Public Accounts. (7) Food manager certification credit shall meet the following criteria. (A) With the exception of temporary food service establishments, the permit fee may be reduced by 10% for each establishment under the full-time supervision of an on-site manager who has successfully completed a food manager's certification course accredited by the department. A list of accredited courses may be obtained from the Texas Department of Health, Division of Food and Drugs, 1100 West 49th Street, Austin, Texas 78756-3182. (B) A photocopy of the food manager's certificate of completion must be submitted with the permit application or renewal. Manager certification will be verified through department records. (b) Exemptions from permit and fees. Establishments permitted and inspected by a county or public health district under the Health and Safety Code, Chapter 437, provided the inspections are based on the requirements of sec.229.373 of this title (relating to Minimum Standards of Permitting and Operation) are exempted from obtaining a permit and from paying a fee. (c) Nonprofit fee exemption. Nonprofit organizations shall obtain a permit and comply with the requirements of s229.373 of this title. Nonprofit organizations are exempt from the permit fee. (d) Application for permit. The permit application shall be signed and verified, be made on a form furnished by the department, and contain the following information: (1) the name under which the business is operated; (2) the mailing address and street address of each place of business; (3) if a sole proprietorship, the name of the proprietor; if a partnership, the names of all partners; if a corporation, the date and place of incorporation and the name and address of its registered agent in the State; or if any other type of association, the names of the principals of such association; and (4) the names of those individuals in an actual administrative capacity which, in the case of a sole proprietorship, shall be the managing proprietor; in a partnership, the managing partner; in a corporation, the officers and directors; in any other association, those in a managerial capacity. (e) Nonprofit organizations. A nonprofit organization shall submit documentation from the Internal Revenue Service to qualify the establishment for the exemption from the permit fee. (f) Temporary food service establishments. A permit application for a temporary food service establishment shall specify the name and physical location of the event for which the permit is requested, the initial effective date of the permit, and the foods to be prepared. (g) Two or more establishments. If a person owns or operates two or more establishments, each establishment shall be permitted separately by listing the name and address of each establishment on separate application forms. (h) Pre-license inspection. The applicant shall cooperate with any pre-license inspection which may be conducted by the department. (i) Issuance of a permit. The department may issue a permit for an establishment based on compliance specified in sec.sec.229.161-229.173 of this title (relating to Food Service Sanitation); or sec.sec.229.231-229.239 of this title (relating to Retail Food Store Sanitation). Copies may be obtained from the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3182. (1) The permit shall be valid for one year from the date of issue, which becomes the anniversary date, with the exception of temporary permits. (2) The renewal permit shall be valid for one year from the anniversary date, with the exception of temporary permits as stated under paragraph (1) of this subsection. (3) Permit application forms may be obtained from the Texas Department of Health, Division of Food and Drugs, 1100 West 49th Street, Austin, Texas 78756- 3182. (4) The permit shall be posted conspicuously in the establishment. (5) Permits for mobile food units, including pushcarts and roadside food vendors shall be displayed on the unit at all times. (j) Renewal of a permit. (1) Each year the permit holder shall renew their permit based on compliance specified in sec.sec.229.161-229.173 of this title, or sec.sec.229.231-229.239 of this title. Copies may be obtained from the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3182. (2) A person holding a permit issued by the department, and whose operation is in compliance with paragraph (1) of this subsection, shall be billed by the department and shall have his or her permit renewed by the department upon payment of the appropriate fee. (3) The holder of the permit must submit the annual permit fee for renewal prior to the expiration date of the current permit. A person who files a renewal application after the expiration date must pay an additional $75 as a delinquency fee. (4) Failure to submit the renewal fee annually may subject the permit holder to the offense provisions under the Health and Safety Code, Chapter 437, and also to the provisions of s229.374 of this title (relating to Refusal, Revocation, or Suspension of a Permit; Administrative Penalties). (k) Amendment of permit. (1) Fee. A permit that is amended, including a change of name, ownership, or a notification of a change in location of a permitted place of business required under Health and Safety Code, sec.437.0125, will require submission of fees as outlined in subsection (a) of this section. (2) Change of location. A permit is not transferrable upon change of location with the exception of a permit issued to an operator of a mobile food unit or roadside food vendor. sec.229.373. Minimum Standards for Permitting and Operation. All food service establishments, mobile food units, retail food stores, and mobile retail food stores shall be operated in accordance with the requirements specified in sec.sec.229.161-229.173 of this title (relating to Food Service Sanitation), or sec.sec.229.231-229.239 of this title (relating to Retail Food Store Sanitation). Copies may be obtained from the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3182. sec.229.374. Refusal, Revocation, or Suspension of a Permit; Administrative Penalties. (a) Basis. The Texas Department of Health (department) may, after providing opportunity for a hearing, refuse an application for a permit or may revoke or suspend a permit for violations of the requirements of sec.229.372 of this title (relating to Permitting Fees and Procedures) and sec.229.373 of this title (relating to Minimum Standards for Permitting and Operation), or for interference with department personnel in the performance of their duties under these sections. (b) Hearings. Any hearings for the refusal, revocation, or suspension of a permit shall be governed by the department's formal hearing procedures under Chapter 1 of this title (relating to Board of Health). (c) Reinstatement. A former permit holder may apply for reinstatement of a suspended permit by demonstrating that corrections and controls have been implemented to prevent recurrence of objectionable conditions. The department may, after a formal hearing as provided in subsection (b) of this section, require employees of an establishment to successfully complete a department accredited training course on food safety principles prior to the reinstatement of the permit. (d) Administrative Penalties. Administrative penalties, as provided in the Health and Safety Code, sec.431.054 and sec.431.056, and in sec.229.261 of this title (relating to Administrative or Civil Penalties), may be assessed for violation of these sections. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on February 2, 1994. TRD-9435560 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 719-0200 Part II. Texas Department of Mental Health and Mental Retardation Chapter 407. Internal Facilities Management Construction Bidding Procedures 25 TAC sec.sec.407.51-407.57 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Mental Health and Mental Retardation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Department of Mental Health and Mental Retardation (TXMHMR) proposes the repeal of sec.sec.407.51-407.57, concerning construction bidding procedures. The sections would be replaced by new sec.sec.407.51-407.58, concerning the same, which is contemporaneously proposed for public comment in this issue of the Texas Register. The sections are proposed for repeal to allow for the proposal of new sections. This rule action would affect the provisions of the Texas Health and Safety Code, sec.551.007. Leilani Rose, director, Financial Services, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. There will be no significant local economic impact. Sally Anderson, deputy commissioner, Management and Support, has determined that the public benefit is to provide clear and concise information regarding the department's construction bidding procedures. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to Linda Logan, Director, Policy Development, Texas Department Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication. The repeals are proposed 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.407.51. Purpose. sec.407.52. Responsibility. sec.407.53. Prebid Requirements. sec.407.54. Announcement. sec.407.55. Submitting Bids. sec.407.56. Bid Opening. sec.407.57. Selecting the Successful Bidder. This agency hereby certifies that the sections as proposed have been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on February 2, 1994. TRD-9435530 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 206-4670 25 TAC sec.sec.407.51-407.58 The Texas Department of Mental Health and Mental Retardation (TXMHMR) proposes new sec.sec.407.51-407.58, concerning construction bidding procedures. The new sections are proposed contemporaneously with the proposed repeal of existing sec.sec.407.51-407.57, concerning the same, which the proposed new sections would replace. The proposed sections affect the Texas Health and Safety Code, sec.551.007. The proposed new sections would reflect current procedures and terminology would be updated. Leilani Rose, director, Financial Services, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. There will be no significant local economic impact. Sally Anderson, deputy commissioner, Management and Support, has determined that the public benefit is to provide clear and concise information regarding the department's construction bidding procedures. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to Linda Logan, Director, Policy Development, Texas Department Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication. The new sections are proposed 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.407.51. Purpose. The purpose of these sections pertaining to construction bidding procedures is to establish a sequence of events which will result in a reasonable bid price from a competent contractor for construction projects of the Texas Department of Mental Health and Mental Retardation. sec.407.52. Definitions. The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise. Bidding documents -Plans and specifications for construction proposals. Department-The Texas Department of Mental Health and Mental Retardation. Plan rooms-A clearinghouse established by outside organizations in which private companies and government agencies may file plans and specifications for construction proposals. sec.407.53. Responsibility. It shall be the responsibility of the Maintenance and Construction Section to secure contractors' bid proposals. sec.407.54. Prebid Requirements.
                                                                                                                                          Prior to requesting bids: (1) the Maintenance and Construction Section shall ensure that the bidding documents are ready to be distributed; and (2) bidders shall submit a bidder's qualifications form showing the firm's capabilities. This information is used in evaluating the low bidder's ability to complete the project in accordance with the contract. sec.407.55. Announcement. (a) To disseminate information to prospective bidders, a written notice shall be prepared which provides: (1) a description of the project; (2) the project location; (3) procedures for obtaining bidding documents; and (4) the place and time of the bid opening. (b) The notice shall be advertised twice in two newspapers of general circulation. (c) The notice may be sent to: (1) plan rooms for publication in newsletters to contractors; and (2) contractors who have indicated interest in similar projects. sec.407.56. Submitting Bids.
                                                                                                                                            A contractor's bid proposal shall be written on the form which is included with the bidding documents provided by the department or the consulting architect or engineer. The bid proposal shall be submitted in a sealed envelope to the announced place before the bids are scheduled to be opened. sec.407.57. Bid Opening.
                                                                                                                                              At the announced place and promptly at the announced time, a representative of the Maintenance and Construction Division shall open each bid envelope and read aloud all bid items on the proposal. Any bid arriving later than the announced time will not be accepted, and will be returned unopened to the bidder. Anyone may attend bid openings. sec.407.58. Selecting the Successful Bidder. After all bids have been opened and tabulated, the department shall determine which is the lowest and best bid received. The department has the option of rejecting any or all bids. This agency hereby certifies that the sections as proposed have been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on February 2, 1994. TRD-9435531 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 206-4670 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 103. Procedural Rules The Texas Natural Resource Conservation Commission (TNRCC or Commission) proposes the repeal of sec.sec.103.1-103.6, 103.11, 103.12, 103.21-103.24, 103. 31-103.34, 103.41-103.66, 103.71-103.74, 103.81-103.87, and 103.91-103.94, concerning procedural rules of the former Texas Air Control Board (TACB). The proposed repeal of Chapter 103 is necessitated by the statutorily mandated survival of the rules of both the TACB and the Texas Water Commission (TWC) upon the merger of the two agencies. Both sets of rules were reviewed and the Consolidation Management Team adopted a scheme in which the more extensive TWC rules were retained and revised to incorporate necessary material from the TACB procedural rules. The purpose of this refinement of the rules is to eliminate confusion and create one broad set of rules to cover the procedure of hearings under the enabling statutes of both former agencies. As a consequence, these changes are expected to aid in the speedy and orderly progression of hearings while preserving the due process rights of the parties. Stephen Minick, Division of Budget and Planning, has determined that for the first five-year period the repeals are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the repeals. Claire Arenson, chief hearings examiner, Office of Hearings Examiners, has determined that for each year of the first five years the repeals are in effect, the public benefit anticipated as a result of enforcing the repeals will be a more efficient conduct of contested case hearings. There is no anticipated economic cost to persons who are required to comply with the repeals as proposed. There will be no effect on small businesses. A public hearing on this proposal will be held at 10:00 a.m. on February 28, 1994, in Room 202S of the TNRCC central office, Air Quality Planning Division, 12118 North IH-35, Park 35 Technology Center, Building E, Austin, Texas 78753. The hearing is structured for the receipt of oral or written comments by interested persons. Interrogation or cross-examination is not permitted; however, a TNRCC staff member will be available to discuss the proposal and answer questions at 9:30 a.m., prior to the hearing. Written comments not presented at the hearing may be submitted to the TNRCC central office in Austin through March 14, 1994. Material received by the TNRCC Regulation Development Section by 4:00 p.m. on March 14, 1994, will be considered by the Commission prior to any final action on the proposal. Copies of the proposal are available at the central office of the TNRCC located at 12118 North IH-35, Park 35 Technology Center, Building E, Austin. Please mail written comments to the Regulation Development Section, Office of Air Quality, P.O. Box 13087, Austin, Texas, 78711-3087. For further information contact Claire Arenson, Chief Hearings Examiner, Office of Hearings Examiners, at (512) 463-7878. General 30 TAC sec.sec.103.1-103.6 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Texas Water Code, Title 2, Subtitle A, Chapter 5, sec.5.103 and sec.5.105, which authorizes the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other laws of this state and to establish and approve all general policy of the Commission. The repeals are also adopted under the Health and Safety Code, Subtitle B, Chapter 382, sec.382.017, which authorizes the Commission to adopt rules consistent with that chapter. sec.103.1. Object of Rules. sec.103.2. Filing with Agency. sec.103.3. Effective Time of Notice. sec.103.4. Computation of Time. sec.103.5. Person Defined. sec.103.6. Consolidated Hearing. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 27, 1994. TRD-9435535 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 463-8099 Public Hearings-General 30 TAC sec.103.11, sec.103.12 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Texas Water Code, Title 2, Subtitle A, Chapter 5, sec.5.103 and sec.5.105, which authorizes the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other laws of this state and to establish and approve all general policy of the Commission. The repeals are also proposed under the Health and Safety Code, Subtitle B, Chapter 382, sec.382.017, which authorizes the Commission to adopt rules consistent with that chapter. sec.103.11. Types of Hearings. sec.103.12. Notice List. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 27, 1994. TRD-9435536 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 463-8099 Rulemaking Hearings 30 TAC sec.sec.103.21-103.24 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Texas Water Code, Title 2, Subtitle A, Chapter 5, sec.5.103 and sec.5.105, which authorizes the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other laws of this state and to establish and approve all general policy of the Commission. The repeals are also proposed under the Health and Safety Code, Subtitle B, Chapter 382, sec.382.017, which authorizes the Commission to adopt rules consistent with that chapter. sec.103.21. Emergency Regulations. sec.103.22. Petition for Adoption of Rules. sec.103.23. Request for Explanation of a Rule. sec.103.24. Explanation of a Rule. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 27, 1994. TRD-9435537 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 463-8099 Initiation Of Other Than Rulemaking Hearings 30 TAC sec.sec.103.31-103.34 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Texas Water Code, Title 2, Subtitle A, Chapter 5, sec.5.103 and sec.5.105, which authorizes the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other laws of this state and to establish and approve all general policy of the Commission. The repeals are also proposed under the Health and Safety Code, Subtitle B, Chapter 382, sec.382.017, which authorizes the Commission to adopt rules consistent with that chapter. sec.103.31. Calling the Hearing. sec.103.32. Petition for Hearings Other than a Petition for the Adoption of Rules. sec.103.33. Action of Request for a Hearing. sec.103.34. Docket of Hearings. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 27, 1994. TRD-9435538 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 463-8099 Adjudicative Hearings 30 TAC sec.sec.103.41-103.66 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Texas Water Code, Title 2, Subtitle A, Chapter 5, sec.5.103 and sec.5.105, which authorizes the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other laws of this state and to establish and approve all general policy of the Commission. The repeals are also proposed under the Health and Safety Code, Subtitle B, Chapter 382, sec.382.017, which authorizes the Commission to adopt rules consistent with that chapter. sec.103.41. Contested Cases. sec.103.42. Hearing Examiner. sec.103.43. Parties to the Hearing. sec.103.44. Appearances by Party. sec.103.45. Rights of Parties. sec.103.46. Prehearing Conference. sec.103.47. Continuance of Hearing. sec.103.48. Continuance at Hearing. sec.103.49. Testimony. sec.103.50. Limiting Oral Argument. sec.103.51. Return or Other Disposition of Exhibits. sec.103.52. The Record in a Contested Case. sec.103.53. Proposal for Decision in Contested Cases. sec.103.54. Exceptions and Briefs. sec.103.55. Extension of Time for Exceptions or Briefs. sec.103.56. Waiver. sec.103.57. Notice of Board Consideration. sec.103.58. Evidence Before the Board. sec.103.59. Oral Argument Before the Board. sec.103.60. Final Decisions. sec.103.61. When Final, Motion for Rehearing. sec.103.62. Time for Final Decision. sec.103.63. Ex Parte Consultations. sec.103.64. Official Notice. sec.103.65. Agreements to be in Writing. sec.103.66. Legislative Continuances. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 27, 1994. TRD-9435539 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 463-8099 Board Agenda 30 TAC sec.sec.103.71-103.74 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Texas Water Code, Title 2, Subtitle A, Chapter 5, sec.5.103 and sec.5.105, which authorizes the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other laws of this state and to establish and approve all general policy of the Commission. The repeals are also proposed under the Health and Safety Code, Subtitle B, Chapter 382, sec.382.017, which authorizes the Commission to adopt rules consistent with that chapter. sec.103.71. Request for Action by the Board. sec.103.72. Placing Matters on Agenda. sec.103.73. Public Hearing Prior to Presentation to Board. sec.103.74. Presentation to Board Without Prior Public Hearing. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 27, 1994. TRD-9435540 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 463-8099 Miscellaneous 30 TAC sec.sec.103.81-103.87 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Texas Water Code, Title 2, Subtitle A, Chapter 5, sec.5.103 and sec.5.105, which authorizes the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other laws of this state and to establish and approve all general policy of the Commission. The repeals are also proposed under the Health and Safety Code, Subtitle B, Chapter 382, sec.382.017, which authorizes the Commission to adopt rules consistent with that chapter. sec.103.81. Appeal of Permit Action. sec.103.82. Prerequisite to Judicial Appeal. sec.103.83. Time for Filing Petition for Variance. sec.103.84. Effect of Institution of Civil Suit on Petition for Variance. sec.103.85. Effect of Invalidity of Rule. sec.103.86. Effective Date and Repeal. sec.103.87. Gifts and Grants. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 27, 1994. TRD-9435541 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 463-8099 Alternate Dispute Resolution Procedures 30 TAC sec.sec.103.91-103.94 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Texas Water Code, Title 2, Subtitle A, Chapter 5, sec.5.103 and sec.5.105, which authorizes the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other laws of this state and to establish and approve all general policy of the Commission. The repeals are also proposed under the Health and Safety Code, Subtitle B, Chapter 382, sec.382.017, which authorizes the Commission to adopt rules consistent with that chapter. sec.103.91. Scope and Policy. sec.103.92. Referral of Contested Licensing Application for Alternative Dispute Resolution Procedures. sec.103.93. Time Periods. sec.103.94. Confidentiality of Communications in Alternative Dispute Resolution Procedures. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 27, 1994. TRD-9435542 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 463-8099 Chapter 263. General Rules 30 TAC sec.sec.263.2, 263.25, 263.35, 263.36 The Texas Natural Resource Conservation Commission (TNRCC or Commission) proposes amendments to sec.sec.263.2, 263.25, and 263.35, and new sec.263.36, concerning the procedure of hearings; specifically, providing for authority to the hearings examiner to align parties, set preliminary conferences and require preliminary orders, limit time for presentation and confine testimony to subjects within the jurisdiction of the TNRCC, require transcripts, and allow an applicant to withdraw the application after the hearings examiner has taken jurisdiction of the case. New s263.36 is proposed to allow for appeal of certain permit determinations under the Texas Clean Air Act (TCAA). The proposed change to sec.263.2(e) clarifies the authority of the hearings examiner to align parties where there are multiple parties with common interests and legal positions. This procedure can eliminate many conflicts and delays and promotes rapid presentation of evidence. The proposed changes to sec.263.2(j) authorize the hearings examiner to set prehearing conferences and require prehearing orders. These preliminary procedures are necessary to the orderly planning of the hearing on the merits. Such preliminary meetings promote convenient arrangement of the hearing, act to avoid conflicts, and aid in settlement. As a consequence, these changes are expected to aid in the speedy progression of hearings. The proposed changes to sec.263.2(10) and (11) authorize the hearings examiner to limit witness testimony on the basis of jurisdictional relevancy and on the basis of length of time for presentation, so long as the rights of the parties are not prejudiced. The provision proposed for sec.263.25 allows the hearings examiner to require advance purchase of a hearing transcript for hearings which last three days or more, with possible reimbursement. The proposed change would grant the hearings officer more flexibility in obtaining a transcript when necessary. The proposed change in sec.263.35 clarifies that the applicant has some flexibility upon the withdrawal of the application, once jurisdiction by the hearings examiner is taken of the case. The applicant may withdraw with prejudice and the examiner will forward the application and recommendation for action to the Commission. The applicant may withdraw without prejudice with Commission authorization, by agreement of the parties, or upon reimbursement of reasonable costs to the other parties. The addition of new sec.263.36 is a provision for appeal of permit actions under the TCAA. The proposed changes are necessitated by the merger of the Texas Air Control Board and the Texas Water Commission in order to combine and refine the rules to meet the needs of a broad range of hearing types at the new agency. The proposed changes are consistent with current practices at the agency. The proposed changes were reviewed and approved by the Consolidation Management Team. Stephen Minick, division of budget and planning, has determined that for the first five-year period the rules are in effect, there will be no significant fiscal implications anticipated for state or local government as a result of enforcing or administering the rules. The application of these rules to specific contested cases may have some effects on costs of individual proceedings. Generally, the effects will be to reduce the time required and the total costs of contested proceedings; however, these potential cost savings cannot be determined at this time. Claire Arenson, chief hearings examiner, Office of Hearings Examiners, has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing the rules will be a more rapid resolution of contested case hearings. There is no anticipated economic cost to persons who are required to comply with the rules as proposed. There will be no effect on small businesses. A public hearing on this proposal will be held at 10:00 a.m. on February 28, 1994, in Room 202S of the TNRCC central office, Air Quality Planning Division, 12118 North IH-35, Park 35 Technology Center, Building E, Austin, Texas 78753. The hearing is structured for the receipt of oral or written comments by interested persons. Interrogation or cross-examination is not permitted; however, a TNRCC staff member will be available to discuss the proposal and answer questions at 9:30 a.m., prior to the hearing. Written comments not presented at the hearing may be submitted to the TNRCC central office in Austin through March 14, 1994. Material received by the TNRCC Regulation Development Section by 4:00 p.m. on March 14, 1994, will be considered by the Commission prior to any final action on the proposal. Copies of the proposal are available at the central office of the TNRCC located at 12118 North IH-35, Park 35 Technology Center, Building E, Austin. Please mail written comments to the Regulation Development Section, Office of Air Quality, P.O. Box 13087, Austin, Texas 78711-3087. For further information contact Claire Arson, Chief Hearings Examiner, Office of Hearings Examiners, at (512) 463-7878. The amendments and new rule are proposed under the Texas Water Code, Title 2, Subtitle A, Chapter 5, sec.5.103 and sec.5.105, which authorizes the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other laws of this state and to establish and approve all general policy of the Commission. No other Chapter of the Texas Water Code is affected by these proposed amendments or new section. sec.263.2. Powers of the Examiner. The presiding examiner shall have authority to do the following: (1)-(9) set hearing dates; (10) set prehearing conferences and require prehearing orders; (11)
                                                                                                                                                [(10)] insure that information and testimony are introduced as conveniently and expeditiously as possible, including limiting the time of presentation
                                                                                                                                                  without prejudicing any rights of parties to the proceeding; [(11) conduct public hearings in an orderly manner in accordance with these sections;] (12) limit testimony to matters under the Commission's jurisdiction; (13)
                                                                                                                                                    [(12)] recess any hearing from time to time and from place to place; (14)
                                                                                                                                                      [(13)] reopen the record of a hearing, prior to issuance of a proposal for decision, for additional evidence where necessary to make the record more complete; and (15)
                                                                                                                                                        [(14)] exercise any other appropriate powers necessary or convenient to carry out his responsibilities. sec.263.25. Requests for Hearings Reporter Services. (a)-(d) (No change.) (e) In hearings expected to last three days or more, the applicant may be required to pay for the transcript up front by the hearings examiner or the Texas Natural Resource Conservation Commission (Commission), subject to reimbursement from other parties upon assessment of costs. sec.263.35. Withdrawing the Application. (a) Once the examiner has taken jurisdiction over the application, an applicant may withdraw his application with prejudice
                                                                                                                                                          [Absent commission authorization or agreement of the parties, an applicant may not withdraw his application without prejudice once the examiner has taken jurisdiction over the application]. The examiner will forward the request to withdraw the application and his recommendation to the Texas Natural Resource Conservation Commission (Commission). (b) The application may be withdrawn without prejudice, once jurisdiction has been taken, with Commission authorization or by agreement of the parties, or if the applicant reimburses the other parties all reasonable costs the other parties have incurred in the permitting process for the subject application
                                                                                                                                                            [In addition to commission authorization or agreement of the parties, the application may also be withdrawn without prejudice if the applicant reimburses the other parties all costs the other parties have incurred in the permitting process for the subject application]. sec.263.36. Appeal of Air Quality Permits. (a) Any person, including the applicant, affected by a decision of the executive director regarding air quality permits, may appeal to the Texas Natural Resource Conservation Commission (Commission), with the exception of a decision regarding a federal operating permit, not later than the 30th day after the date on which notice was mailed. The issues on appeal must be identified with specificity in the request for a contested case hearing. (b) An appeal under this rule is a contested case hearing under the Administrative Procedure Act (The Government Code, Chapter 2001). (c) The filing of an appeal to the Commission under this rule does not affect a permit issued by the executive director. A final order by the Commission reversing or modifying the executive director's decision takes effect when it becomes final and appealable. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 27, 1994. TRD-9435543 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 463-8099 30 TAC sec.263.37 The Texas Natural Resource Conservation Commission (TNRCC or Commission) proposes new sec.263.37, concerning the specification of minimum factors which the Office of Hearings Examiners (OHE) should consider in determining response to requests that an air quality hearing be granted prior to the issuance of a permit. The new sec.263.37 is intended to provide criteria for the OHE for determining response to requests that an air quality hearing be granted prior to the issuance of a permit. The rule is not intended to mandate a particular result, and the Commission recognizes the OHE's discretion on a case-by-case basis in weighing these factors and others. The proposed rule incorporates current policy used in making such decisions. One purpose is to prevent delays in projects which would result in emission reductions. The proposed rule is necessitated by the merger of the Texas Air Control Board and the Texas Water Commission in order to combine and refine the rules to meet the needs of a broad range of hearing types at the new agency. The proposed rule is consistent with current practice at the agency. The proposed changes were reviewed and approved by the Consolidation Management Team. Stephen Minick, division of budget and planning, has determined that for the first five-year period the rule is in effect there will be no significant fiscal implications anticipated for state or local government as a result of enforcing or administering the rule. The application of this rule to specific contested cases may have some effects on costs of individual proceedings. Generally, the effects will be to reduce the time required and the total costs of contested proceedings; however, these potential cost savings cannot be determined at this time. Claire Arenson, chief hearings examiner, Office of Hearings Examiners, has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be a more rapid resolution of contested case hearings. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. There will be no effect on small businesses. A public hearing on this proposal will be held at 10:00 a.m. on February 28, 1994, in Room 202S of the TNRCC central office, Air Quality Planning Division, 12118 North IH-35, Park 35 Technology Center, Building E, Austin, Texas 78753. The hearing is structured for the receipt of oral or written comments by interested persons. Interrogation or cross-examination is not permitted; however, a TNRCC staff member will be available to discuss the proposal and answer questions at 9:30 a.m., prior to the hearing. Written comments not presented at the hearing may submitted to the TNRCC central office in Austin through March 14, 1994. Material received by the TNRCC Regulation Development Section by 4:00 p.m. on March 14, 1994, will be considered by the Commission prior to any final action on the proposal. Copies of the proposal are available at the central office of the TNRCC located at 12118 North IH-35, Park 35 Technology Center, Building E, Austin. Please mail written comments to the Regulation Development Section, Office of Air Quality, P.O. Box 13087, Austin, Texas 78711-3087. For further information, contact Claire Arenson, Chief Hearings Examiner, Office of Hearings Examiners, at (512) 463-7878. The new rule is proposed under the Texas Water Code, Title 2, Subtitle A, Chapter 5, sec.5.103 and sec.5.105, which authorizes the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other laws of this state and to establish and approve all general policy of the Commission. The new section is also adopted under the Health and Safety Code, Subtitle B, Chapter 382, sec.382.017, which authorizes the Commission to adopt rules consistent with that chapter. sec.263.37. Factors for Consideration in Calling Air Quality Hearings Prior to Issuance of Permit. Upon receipt of a request for an air quality hearing prior to issuance of a permit, the Office of Hearings Examiners shall consider at least the following factors in determining whether to grant a request for such hearing: (1) whether the project is an emissions reduction project including: (A) whether there are no increases in emissions of any contaminants, and the reduction project is not driven by a non-compliance situation; and (B) whether the project will have both emission reductions and incidental increases where the net effect is an emission reduction; (2) whether the project is mandated by Texas Natural Resource Conservation Commission rule; (3) the location of the proposed project; (4) whether the applicant requests authority to substitute an equivalent or more efficient control device; (5) whether the primary motivation for requesting a contested case hearing is something other than concerns about pollution; (6) the extent to which the person requesting a hearing is likely to be impacted by the emissions; and (7) the applicant's compliance history. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 27, 1994. TRD-9435544 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 239-0600 Chapter 265. Procedures Before Public Hearing 30 TAC sec.265.6, sec.265.20 The Texas Natural Resource Conservation Commission (TNRCC or Commission), proposes amendments to sec.265.6 and sec.265.20, concerning hearing procedures and matters preliminary to hearings; specifically, providing for additional prehearing conferences and allowing, within the reasonable discretion of the hearings examiner, admission of "new evidence" not previously disclosed during discovery procedures. The proposed changes to sec.265.6(c), allow the hearings examiner flexibility in scheduling necessary preliminary conferences prior to the hearing on the merits without the requirement of publishing a notice. Such additional preliminary meetings are held after the initial published session at which the parties to the hearing are established. Resolution of evidentiary and other disputes at the preliminary sessions often eliminate interruption and rescheduling during the hearing on the merits. As a consequence, these changes are expected to aid in the speedy progression of hearings. The provision proposed for sec.265.20(c)(8) and (9) allows the hearings examiner the ability to allow admission of testimony and documentary evidence which was not brought out during the conduct of discovery of the parties. This flexibility is necessary when a party becomes aware of "new evidence" or changes in circumstances. The hearings examiner can refuse such evidence where one party has purposefully withheld such evidence to gain advantage. Other rules allow the hearings examiner to levy sanctions upon parties who use such abusive tactics. The changes will assist in the hearings examiner's task of gathering all evidence necessary to a sound determination. The proposed changes are necessitated by the merger of the Texas Air Control Board and the Texas Water Commission in order to combine and refine the rules to meet the needs of a broad range of hearing types at the new agency. The proposed changes are consistent with current practices at the agency. The proposed changes were reviewed and approved by the Consolidation Management Team. Stephen Minick, Division of Budget and Planning, has determined that for the first five-year period the rules are in effect there will be no significant fiscal implications anticipated for state or local government as a result of enforcing and administering the rules. The application of these rules to specific contested cases may have some effects on costs of individual proceedings. Generally, the effects will be to reduce the time required and the total costs of contested proceedings, however, these potential cost savings cannot be determined at this time. Claire Arenson, chief hearings examiner, Office of Hearings Examiners, has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing the rules will be a more rapid resolution of contested case hearings. There is no anticipated economic cost to persons who are required to comply with the rules as proposed. There will be no effect on small businesses. A public hearing on this proposal will be held at 10:00 a.m. on February 28, 1994, in Room 202S of the TNRCC central office, Air Quality Planning Division, 12118 North IH-35, Park 35 Technology Center, Building E, Austin, Texas 78753. The hearing is structured for the receipt of oral or written comments by interested persons. Interrogation or cross-examination is not permitted; however, a TNRCC staff member will be available to discuss the proposal and answer questions at 9:30 a.m., prior to the hearing. Written comments not presented at the hearing may be submitted to the TNRCC central office in Austin through March 14, 1994. Material received by the TNRCC Regulation Development Section by 4:00 p.m. on March 14, 1994, will be considered by the Commission prior to any final action on the proposal. Copies of the proposal are available at the central office of the TNRCC located at 12118 North IH 35, Park 35 Technology Center, Building E, Austin. Please mail written comments to the Regulation Development Section, Office of Air Quality, P.O. Box 13087, Austin, Texas, 78711-3087. For further information contact Claire Arenson, Chief Hearings Examiner, Office of Hearings Examiners, at (512) 463-7878. The amendments are proposed under the Texas Water Code, Title 2, Subtitle A, Chapter 5, sec.5.103 and sec.5.105, which authorizes the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other lows of this state and to establish and approve all general policy of the Commission. No other chapter of the Texas Water Code is affected by these proposed amendments. sec.265.6. Conference Before Hearing. (a)-(b) (No change.) (c) At the discretion of the presiding officer, additional conferences before the hearing may be scheduled and held without the necessity of publication. sec.265.20. Sanctions for Failure to Comply with Discovery Ruling. (a)-(b) (No change.) (c) If the presiding officer finds a party is abusing compelled discovery initiated pursuant to sec.sec.265.11(b), 265. 16, or 265.19 of this title (relating to Compellable Discovery, Discovery of Documents and Things, or Requests for Information) (or the Administrative Procedure Act, The Government Code, Chapter 2001, in seeking, making, or resisting discovery), the presiding officer may do any of the following: (1)-(7) (No change.) (8) allow written or documentary evidence to be presented that was not exchanged on the deadline for exchange of such evidence; and (9) allow the testimony of witnesses who were not listed by the deadline established for listing potential witnesses. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 27, 1994. TRD-9435545 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 463-8099 Chapter 267. Procedures During Public Hearing 30 TAC sec.267.11, sec.267.13 The Texas Natural Resource Conservation Commission (TNRCC or Commission) proposes amendments to sec.267.11 and sec.267.13, concerning the presentation of evidence in hearings; specifically, providing for a certain order of presentation and that witnesses be sponsored either by a party or the hearing officer. The proposed changes to sec.267.11, clarify the responsibilities of the parties in the order of presentation of evidence both as to each party's initial case and as to the rebuttal. As a consequence, these changes are expected to aid in the speedy progression of hearings. The provision proposed for sec.267.13, that witnesses may testify only if sponsored by a party or the hearing officer, allows the hearing officer to admit testimony from a "volunteer" witness not offered by a party when the hearing officer has determined the witness has evidence necessary to a sound decision. The proposed changes are necessitated by the merger of the Texas Air Control Board and the Texas Water Commission in order to combine and refine the rules to meet the needs of a broad range of hearing types at the new agency. The proposed changes are consistent with current practices at the agency. The proposed changes were reviewed and approved by the Consolidation Management Team. Stephen Minick, Division of Budget and Planning, has determined that for the first five-year period the rules are in effect there will be no significant fiscal implications anticipated for state or local government as a result of enforcing or administering the rules. The application of these rules to specific contested cases may have some effects on costs of individual proceedings. Generally, the effects will be to reduce the time required and the total costs of contested proceedings, however, these potential cost savings cannot be determined at this time. Claire Arenson, chief hearings examiner, Office of Hearings Examiners, has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing the rules will be a more rapid resolution of contested case hearings. There is no anticipated economic cost to persons who are required to comply with the rules as proposed. There will be no affect on small businesses. A public hearing on this proposal will be held at 10:00 a.m. on February 28, 1994, in Room 202S of the TNRCC central office, Air Quality Planning Division, 12118 North IH-35, Park 35 Technology Center, Building E, Austin, Texas 78753. The hearing is structured for the receipt of oral or written comments by interested persons. Interrogation or cross-examination is not permitted; however, a TNRCC staff member will be available to discuss the proposal and answer questions at 9:30 a.m., prior to the hearing. Written comments not presented at the hearing may be submitted to the TNRCC central office in Austin through March 14, 1994. Material received by the TNRCC Regulation Development Section by 4:00 p.m. on March 14, 1994, will be considered by the Commission prior to any final action on the proposal. Copies of the proposal are available at the central office of the TNRCC located at 12118 North IH 35, Park 35 Technology Center, Building E, Austin. Please mail written comments to the Regulation Development Section, Office of Air Quality, P.O. Box 13087, Austin, Texas 78711-3087. For further information contact Claire Arenson, Chief Hearings Examiner, Office of Hearings Examiners, at (512) 463- 7878. The amendments are proposed under the Texas Water Code, Title 2, Subtitle A, Chapter 5, sec.5.103 and sec.5.105, which authorizes the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other laws of this state and to establish and approve all general policy of the Commission. No other chapter of the Texas Water Code is affected by these proposed amendments. sec.267.11. Order of Presentation. In all proceedings, the moving party shall have the right to open and close. Before the moving party opens, the Executive Director's Staff shall open with a simple statement of its current position on the application and, in a permit hearing, will present the Staff's draft permit including special provisions, if any.
                                                                                                                                                              The applicant presents evidence to meet its burden of proof on the application, any opponents present evidence, the Public Interest Counsel presents evidence,
                                                                                                                                                                and the Staff presents its evidence. The applicant, as the party with the burden of proof, is the only party allowed to present a rebuttal case as a matter of right. In all cases, the applicant shall be allowed to close with its rebuttal. The protestants may present a rebuttal case when the Executive Director presents evidence which could not have been reasonably anticipated at the time the protestants presented their case.
                                                                                                                                                                  Where several matters have been consolidated, the presiding officer will designate who will open and close. The presiding officer will determine at what stage intervenors will be permitted to offer evidence and argument. After all parties have completed the presentation of their evidence, the presiding officer may call upon any party for further material or relevant evidence upon any issue. sec.267.13. General Admissibility of Evidence. (a)-(b) (No change.) (c) Testimony will be received only from witnesses called by a party or his or her representative or the presiding officer. Any person whose position is not adequately represented by any party, but who wishes to offer his or her own testimony may become a witness for the presiding officer, subject to cross- examination by all parties or their representatives. Such testimony may be allowed at the presiding officer's discretion. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 27, 1994. TRD-9435546 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 463-8099 Chapter 269. Procedures After Public Hearings Before a Hearings Examiner 30 TAC sec.269.6 The Texas Natural Resource Conservation Commission (TNRCC or Commission) proposes an amendment to sec.269.6, concerning hearing procedures; specifically, providing for a change, with agreement of the parties, in deadlines for filing of certain pleadings. The proposed change to sec.269.6, allows flexibility in the deadlines for filing of exceptions, briefs, and proposed findings of fact and conclusions of law after issuance of the hearings examiner's Proposal for Decision. As a consequence, these changes are expected to aid in the orderly progression of hearings in that parties can adjust the filing schedule, within limitations, to meet problem situations such as lengthy transcript preparation. The proposed changes are necessitated by the merger of the Texas Air Control Board and the Texas Water Commission in order to combine and refine the rules to meet the needs of a broad range of hearing types at the new agency. The proposed changes are consistent with current practices at the agency. The proposed changes were reviewed and approved by the Consolidation Management Team. Stephen Minick, Division of Budget and Planning, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Claire Arenson, chief hearings examiner, Office of Hearings Examiners, has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be a more rapid resolution of contested case hearings. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. There will be no effect on small businesses. A public hearing on this proposal will be held at 10:00 a.m. on February 28, 1994, in Room 202S of the TNRCC central office, Air Quality Planning Division, 12118 North IH-35, Park 35 Technology Center, Building E, Austin, Texas 78753. The hearing is structured for the receipt of oral or written comments by interested persons. Interrogation or cross-examination is not permitted; however, a TNRCC staff member will be available to discuss the proposal and answer questions at 9:30 a.m., prior to the hearing. Written comments not presented at the hearing may be submitted to the TNRCC central office in Austin through March 14, 1994. Material received by the TNRCC Regulation Development Section by 4:00 p.m. on March 14, 1994, will be considered by the Commission prior to any final action on the proposal. Copies of the proposal are available at the central office of the TNRCC located at 12118 North IH 35, Park 35 Technology Center, Building E, Austin. Please mail written comments to the Regulation Development Section, Office of Air Quality, P.O. Box 13087, Austin, Texas, 78711-3087. For further information contact Claire Arenson, Chief Hearings Examiner, Office of Hearings Examiners, at (512) 463-7878. The amendment is proposed under the Texas Water Code, Title 2, Subtitle A, Chapter 5, sec.5.103 and sec.5.105, which authorizes the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other laws of this state and to establish and approve all general policy of the Commission. No other chapter of the Texas Water Code is affected by this proposed amendment. sec.269.6. Pleadings Following Proposal for Decision. Unless right of review has been waived under sec.269.5 of this title (relating to Waiver of Right to Review Examiner's Proposal), any adversely affected party may, within ten days after the date of issuance of the proposal for decision, file exceptions or briefs by delivering the original documents to the Texas Natural Resource Conservation Commission (Commission) and a copy to the examiner. Proposed findings of fact may be submitted in the same manner when permitted or requested by the Commission. Any replies to exceptions, briefs, or proposed findings of fact shall be filed in the same manner within 20 days after the date of issuance of the proposal for decision. These time frames may be changed by agreement of the parties.
                                                                                                                                                                    Copies of all exceptions, briefs, proposed findings of fact, and replies shall be served promptly on the examiner and on all other parties with certification of service furnished to the Commission. Failure to provide copies may be grounds for withholding consideration of the document. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 27, 1994. TRD-9435547 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 463-8099 Chapter 275. Special Provisions Variance Hearings 30 TAC sec.sec.275.130-275.132 The Texas Natural Resource Conservation Commission (TNRCC or Commission) proposes new sec.sec.275.130-275.132, concerning hearing procedures; specifically, providing for variance hearings pursuant to the Texas Health and Safety Code, Texas Clean Air Act, sec.382.031. The proposed new rules provide for a procedure for holding hearings on petitions for variance from a rule, regulation, or order of the commission. The rules would restrict the time for filing of the variance petition to that period prior to the commencement of a hearing on any enforcement petition. The proposed changes are necessitated by the merger of the Texas Air Control Board and the Texas Water Commission in order to combine and refine the rules to meet the needs of a broad range of hearing types at the new agency. The proposed changes are consistent with current practices at the agency. The proposed changes were reviewed and approved by the Consolidation Management Team. Stephen Minick, Division of Budget and Planning, has determined that for the first five-year period the rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rules. Claire Arenson, chief hearings examiner, Office of Hearings Examiners, has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing the rules will be a more rapid resolution of contested case hearings. There is no anticipated economic cost to persons who are required to comply with the rules as proposed. There will be no effect on small businesses. A public hearing on this proposal will be held at 10:00 a.m. on February 28, 1994, in Room 202S of the TNRCC central office, Air Quality Planning Division, 12118 North IH-35, Park 35 Technology Center, Building E, Austin, Texas 78753. The hearing is structured for the receipt of oral or written comments by interested persons. Interrogation or cross-examination is not permitted; however, a TNRCC staff member will be available to discuss the proposal and answer questions at 9:30 a.m., prior to the hearing. Written comments not presented at the hearing may be submitted to the TNRCC central office in Austin through March 14, 1994. Material received by the TNRCC Regulation Development Section by 4:00 p.m. on March 14, 1994, will be considered by the Commission prior to any final action on the proposal. Copies of the proposal are available at the central office of the TNRCC located at 12118 North IH 35, Park 35 Technology Center, Building E, Austin. Please mail written comments to the Regulation Development Section, Office of Air Quality, P.O. Box 13087, Austin, Texas, 78711-3087. For further information contact Claire Arenson, Chief Hearings Examiner, Office of Hearings Examiners, at (512) 463-7878. The new rules are proposed under the Texas Water Code, Title 2, Subtitle A, Chapter 5, sec.5.103 and sec.5.105, which authorizes the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other laws of this state and to establish and approve all general policy of the Commission. No other chapter of the Texas Water Code is affected by these proposed new sections. sec.275.130. Variance Hearings Pursuant to the Texas Clean Air Act. This type of hearing shall be called by the Texas Natural Resource Conservation Commission or the Executive Director as a result of the filing of a petition for variance pursuant to the Texas Health and Safety Code, Texas Clean Air Act, sec.382.062. Upon the filing of a proper petition, a date for a hearing on the petition shall be set not be more than 90 days after the date the petition is filed. Notice of the hearing shall be given as required by the Texas Health and Safety Code, Texas Clean Air Act, sec.382.031 and the Administrative Procedure Act, The Government Code, Chapters 2001 and 2002. A petition for the variance shall be considered to be in proper form if it identifies the person seeking the variance; identifies the particular rule or provisions of the Texas Clean Air Act from which a variance is sought; identifies the source of air contaminants which is the subject of the petition, including information on the nature and the amount of emissions from the source, if available, and the location of the source; and includes a short and plain statement of the grounds upon which the relief is sought. Forms to assist in the filing of a petition are available upon request but are not mandatory. sec.275.131. Time for Filing Petition for Variance.
                                                                                                                                                                      In the event a compliance hearing is called to examine the status of a particular source with regard to the Texas Clean Air Act (TCAA) or the rules and regulations of the Texas Natural Resource Conservation Commission (Commission), the source owner or operator must file with the Commission a petition for variance prior to the commencement of said hearing in order to be entitled to have the Commission consider the right to a variance with regard to the particular provisions of the TCAA or rules or regulations which are the subject of the hearing. Any order of the Commission as a result of such hearing shall be deemed to have disposed of the issue of the right to a variance. Any petition for variance filed subsequent to the hearing shall be returned to the applicant without action by the staff or the Commission unless the petition demonstrates that circumstances have so changed as to make it just and equitable to reopen the matter. sec.275.132. Effect of Institution of Civil Suit on Petition for Variance.
                                                                                                                                                                        If the Texas Natural Resource Conservation Commission (Commission) or the executive director, as authorized by the Commission, should request institution of a civil suit pursuant to the Texas Health and Safety Code, Texas Clean Air Act, sec.382.028, for violation of the Texas Clean Air Act or any rule, regulation, variance, or order of the Commission prior to the time that the Commission takes action on a petition for variance submitted with regard to the violations to be alleged in the suit, the petition for variance shall be returned to the applicant without further action. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 27, 1994. TRD-9435548 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 463-8099 Title 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter CC. Waste Tire Recycling Fee 34 TAC sec.3.721 The Comptroller of Public Accounts proposes an amendment to sec.3.721, concerning the tires that are subject to the waste tire recycling fee. The 73rd Legislature, 1993, amended the Health and Safety Code, sec.361.472, effective October 1, 1993, to impose the fee on basically all new tires with a rim diameter equal to or greater than 12 inches but less than 25 inches, including all sizes of new motorcycle tires, and to repeal the authority for dealers to retain a portion of the fees remitted. Mike Reissig, chief revenue estimator, has determined that for the first five- year period the rule will be in effect there will be no significant revenue impact on the state or local government. Mr. Reissig also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be in providing new information regarding tax responsibilities. This rule is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. There is no significant anticipated economic cost to persons who are required to comply with the proposed rule. Comments on the proposal may be submitted to Charles C. Johnstone, Manager, Tax Administration Division, P.O. Box 13528, Austin, Texas 78711. The amendment is proposed 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.361.472. sec.3.721. Collection and Reporting Requirements. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) (No change.) (2) Tire-A new [automobile, van, bus, truck, trailer, semitrailer, truck tractor and semitrailer combination, or recreational vehicle] tire that has a rim diameter equal to or greater than 12 inches but less than 25
                                                                                                                                                                          [26] inches, or a new motorcycle tire, regardless of the rim diameter. (3) (No change.) (b)-(d) (No change.) (e) Payment of the fee. (1) (No change.) [(2) Every dealer may retain $.025 for each fee (i.e., tire) reported and paid on their return. ] (2)
                                                                                                                                                                            [(3)] The returns must be signed by the person required to file the return or by the person's duly authorized agent, but need not be verified by oath. (f) (No change.) (g) Exemptions. (1)-(5) (No change.) (6) Bicycle tires are not subject to the fee. (7) Solid industrial tires are not subject to the fee. (h) Replacements covered by a warranty or service contract. (1) (No change.) (2) The replacement of a tire under an extended warranty or a service contract, for which the customer pays an extra charge, is or is not subject to the fee depending
                                                                                                                                                                              [depends] on the terms of the contract. (A)-(B) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on February 1, 1994. TRD-9435496 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Earliest possible date of adoption: March 11, 1994 For further information, please call: (512) 463-4028 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 10. Family Self-support Services Employment Services 40 TAC sec.10.2303 The Texas Department of Human Services (DHS) proposes an amendment to sec.10.2303, concerning participant extended eligibility for case management services in its Family Self-support Services chapter. The purpose of the amendment is to include the extension of case management beyond 90 days post- employment for some recipients in San Antonio as provided for under a Department of Health and Human Services Discretionary Grant. Burton F. Raiford, commissioner, has determined that for the first five-year period the proposed section will be in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the section. Mr. Raiford also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that Aid to Families with Dependent Children recipients in San Antonio, who participate in the Job Opportunities and Basic Skills Training Program and who obtain employment, will be aided in maintaining employment and long-term self-sufficiency by provision of long- term transitional post- employment case management. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed section. Questions about the content of the proposal may be directed to Carol Barron at (512) 450-4242 in DHS's Self-support Services Unit. Comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-008, Texas Department of Human Services W-402, P.O. Box 149030, Austin, Texas 78714- 9030, within 30 days of publication in the Texas Register. The amendment is proposed under the Human Resources Code, Title 2, Chapters 22, which provides the department with the authority to administer public assistance programs. The amendment implements the Human Resources Code, sec. s22.001-22.024. sec.10.2303. Participant Extended Eligibility for Case Management Services. (a)-(b) (No change.) (c) Job Opportunities and Basic Skills Training Program participants in an approved Administration for Children and Families demonstration grant being conducted in San Antonio receive intensive follow-up case management services for up to 24 months following employment entry. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on February 1, 1994. TRD-9435495 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Proposed date of adoption: April 1, 1994 For further information, please call: (512) 450-3765 Part 19. Texas Department of Protective and Regulatory Services Chapter 700. Child Protective Services The Texas Department of Protective and Regulatory Services (TDPRS) proposes the repeal of sec.sec.700.1401-700.1406 and proposes new sec.sec.700.1401-700. 1406, concerning children in TDPRS's conservatorship who have or who are at risk of getting Acquired Immune Deficiency Syndrome (AIDS), in the department's child protective services chapter. The purpose of the repeals and new sections is to update the department's policies for serving such children in light of current medical knowledge about AIDS. The new sections update and clarify the department's policies for testing children to determine whether they have been infected with human immunodeficiency virus (HIV), which is the virus that causes AIDS; counseling children in conjunction with their testing; notifying caregivers about the results of the testing of children in their care; protecting the confidentiality of information about a child's HIV status; managing the medical care of children who have been infected with HIV; training caregivers to prevent the transmission of HIV, and to care for children who are already infected; and providing developmentally appropriate sex-education to children in TDPRS's conservatorship, including education about the prevention of AIDS. Jerry Abel, chief fiscal officer, has determined that for the first five-year period the proposal will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the proposal. Mr. Abel also has determined that for each year of the first five years the proposal is in effect the public benefit anticipated as a result of enforcing the proposal will be to ensure appropriate testing, counseling, medical care, and residential care for children in TDPRS's conservatorship who are either infected with HIV or are at risk of becoming infected. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposal. Questions about the content of the proposal may be directed to Pam Rodgers at (512) 450-3144 in TDPRS's Protective Services for Families and Children department. Written comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-019, Texas Department of Protective and Regulatory Services W-402, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register. Subchapter N. AIDS Policies for Children in PRS Conservatorship 40 TAC sec.sec.700.1401-700.1406 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Protective and Regulatory or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs, and Chapter 41, which authorizes the department to enforce laws for the protection of children. The repeals are also proposed under the Texas Family Code (TFC), Title 2, Chapter 34, which authorizes the department to provide services to alleviate the effects of child abuse and neglect. In addition, the repeals are proposed under Texas Civil Statutes, Article 4413(503) historical note (Vernon Supp. 1993) which transferred all functions, programs, and activities related to the child protective services program from the Texas Department of Human Services (TDHS) to TDPRS. And finally, the repeals implement TFC, sec.14.02, concerning the rights, privileges, duties, and powers of a conservator. sec.700.1401. Definitions. sec.700.1402. Identification of Children to be Tested. sec.700.1403. Testing and Counseling. sec.700.1404. Notification. sec.700.1405. Caregiver Training. sec.700.1406. Confidentiality. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on February 1, 1994. TRD-9435494 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Protective and Regulatory Services Proposed date of adoption: May 1, 1994 For further information, please call: (512) 450-3765 Subchapter N. AIDS Policies for Children in TDPRS's [PRS] Conservatorship 40 TAC sec.sec.700.1401-700.1406 The new sections are proposed under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs, and Chapter 41, which authorizes the department to enforce laws for the protection of children. The new sections are also proposed under the Texas Family Code (TFC), Title 2, Chapter 34, which authorizes the department to provide services to alleviate the effects of child abuse and neglect. In addition, the new sections are proposed under Texas Civil Statutes, Article 4413(503), historical note (Vernon Supp. 1993) which transferred all functions, programs, and activities related to the child protective services program from TDHS to TDPRS. And finally, the new sections implement TFC, sec.14.02, concerning the rights, privileges, duties, and powers of a conservator. sec.700.1401. Testing Children in the Texas Department of Protective and Regulatory Services' (TDPRS's) Conservatorship for Human-Immunodeficiency-Virus (HlV) Antibodies. (a) Who must be tested. TDPRS must ensure that children in the department's conservatorship are tested for HIV antibodies as specified in this section whenever TDPRS discovers that any of the following criteria are satisfied: (1) the child faces a high risk of HIV infection for any of the reasons specified in subsections (b) or (c) of this section; (2) the child has been sexually abused, and the abuse involved vaginal or anal intercourse or oral sex; (3) a physician's physical examination indicates that the child has symptoms of acquired immune deficiency syndrome (AIDS); (4) a physician makes a written recommendation that the child be tested; or (5) the child asks to be tested. (b) Children at risk from birth. TDPRS regards a child as having a high risk of HIV infection from birth if, at the time of the child's birth, there is reason to believe that the child's mother: (1) is infected with HIV (based on the positive results of an HIV-antibodies test performed on the mother, or on the mother's development of AIDS); (2) has engaged in vaginal or anal intercourse or in oral sex with someone who has AIDS or who has tested positive for HIV antibodies; (3) has engaged in vaginal or anal intercourse or in oral sex with a male who has had sexual relations with another male; (4) has a history of intravenous drug abuse; (5) has abused illegal or prescription drugs to a degree that significantly increases the likelihood that she has engaged in any of the other high-risk behaviors listed in this subsection; (6) has engaged in vaginal or anal intercourse or in oral sex with someone who has a history of intravenous drug use; (7) received blood or blood products between January 1978 and March 1985; (8) has engaged in vaginal or anal intercourse or in oral sex with someone who received blood or blood products between January 1978 and March 1985; or (9) has engaged in prostitution or other sexual behavior that clearly involves a significant risk of HIV infection. (c) Other children at risk. TDPRS regards a child as having a high risk of HIV infection for other reasons than those specified in subsection (b) of this section if the child: (1) has been involved in vaginal or anal intercourse or in oral sex with someone who has AIDS or who has tested positive for HIV antibodies; (2) has been involved in vaginal or anal intercourse or in oral sex with a male who has had sexual relations with another male; (3) is a male and has had sexual relations with another male; (4) is an intravenous drug user; (5) has been involved in vaginal or anal intercourse or in oral sex with an intravenous drug user; (6) received blood or blood products between January 1978 and March 1985; (7) has been involved in vaginal or anal intercourse or in oral sex with someone who received blood or blood products between January 1978 and March 1985; or (8) has engaged in prostitution or other sexual behavior that clearly involves a significant risk of HIV infection. (d) Frequency of testing. (1) Children. Except as specified for infants in paragraph (2) of this subsection, whenever any of the criteria specified in subsection (a) of this section are satisfied, CPS must ensure that the child is tested for HIV antibodies at least three times at the following intervals: (A) when staff determine that a criterion has been satisfied; (B) six weeks after the initial test; and (C) six months after the initial test. (2) Infants. When an infant in the department's conservatorship faces a high risk of HIV infection from birth as specified in subsection (b) of this section, TDPRS must ensure that the infant is tested for HIV antibodies every three months until he is 15 months old. The purpose of the quarterly testing is to evaluate the infant for appropriate medical intervention as soon as possible. If the infant's test results are positive, TDPRS must ensure that the infant is tested again after he is 15 months old to determine whether the HIV antibodies previously detected in his system: (A) were received from his mother in utero
                                                                                                                                                                                and have now been eliminated; or (B) were formed by his own body in response to an HIV infection of his own. (e) Testing procedures and counseling. (1) TDPRS secures HIV-antibodies testing through local health departments, private physicians and clinics, and contracted family-planning agencies. When the results of a child's test are positive, the provider of the test must test the child again to confirm the initial results. The department must secure a written copy of the results of the confirming test before treating the child's test results as positive and arranging for ongoing counseling as specified in paragraphs (2) and (3) of this subsection. (2) TDPRS must ensure that every child who is tested for HIV antibodies receives counseling and information appropriate to his age and emotional development both before and after the testing, regardless of the results. (3) When a child's test results are positive, TDPRS must ensure: (A) that the child receives ongoing counseling and information appropriate to his age and emotional development after being tested; and (B) that the child's attending physician conducts appropriate additional tests or evaluations of the child's immune system in order to assess the child's need for treatment and medication. (f) Waivers. TDPRS may waive any provision in this section that must be waived to address a particular child's needs or circumstances. The director of the Protective Services for Families and Children department must authorize each such waiver in advance in writing. sec.700.1402. Treatment and Medical Management. (a) The Texas Department of Protective and Regulatory Services (TDPRS) strives to ensure that each child in the department's conservatorship who is infected with human immunodeficiency virus (HIV) receives medical management and treatment services that meet the standards of the American Academy of Pediatrics. To this end, TDPRS must refer each HIV-infected child in its conservatorship to the following two program areas at the Texas Department of Health (TDH): (1) the Bureau of Chronically Ill and Disabled Children's Services (CIDC), which arranges and coordinates payments for all TDH services related to HIV infection; and (2) the Texas HIV-Medication Program, which provides medications for children infected with HIV. (b) No HIV-infected child in TDPRS's conservatorship may participate in any experimental drug therapy for the treatment or amelioration of symptoms or conditions related to the child's HIV infection unless the child or the child's caregiver first secures the written approval of: (1) the child's attending physician; and (2) the program director of the child's conservatorship unit. sec.700.1403. Notification. (a) Notification about positive results. If a child in the Texas Department of Protective and Regulatory Services' (TDPRS's) conservatorship has Acquired Immune Deficiency Syndrome (AIDS), or if the results of a child's human- immunodeficiency-virus (HIV) antibodies test have been confirmed as positive as specified in sec.700.1401(e) of this title (relating to Testing Children in TDPRS's Conservatorship for HlV Antibodies), TDPRS must inform the following parties of the child's condition: (1) the child's legal parents (if their whereabouts are known); and (2) the foster parents, 24-hour child-care providers, prospective adoptive parents, or relatives with whom the child has been placed or with whom TDPRS plans to place the child. (b) Notification about negative results. If the results of a child's HIV- antibodies test are negative, TDPRS may inform the child's caregivers about the negative results and any related counseling issues if doing so is likely to help the caregivers provide appropriate care. sec.700.1404. Confidentiality. (a) When a child has Acquired Immune Deficiency Syndrome (AIDS) or has tested positive for human-immunodeficiency-virus (HIV) antibodies, the child's foster parents or 24-hour child-care provider must keep the child's HIV status confidential. The child's caretaker is permitted to release information about the child's HIV status only to: (1) medical personnel; and (2) individuals, and duly constituted, legally responsible corporate entities (such as schools and day care centers) that the Texas Department of Protective and Regulatory Services (TDPRS) has authorized to receive the information as specified in subsection (b) of this section. (b) Before releasing confidential information about a child's HIV status to an individual or corporate entity, TDPRS must: (1) confirm that the release is necessary to secure appropriate care and protection for the child and to protect others in the child's environment from HIV infection; (2) list the individual or corporate entity that is to receive the information on the department's form entitled "Authorization to Release Confidential Information About a Child's HIV Status;" (3) ensure that the form specified in paragraph (2) of this subsection clearly indicates that: (A) every party signing it must keep the child's HIV status confidential; and (B) any party that discloses information about the child's HIV status to anyone who is not authorized to receive the information is subject to civil and criminal penalties under the law; and (4) require each of the following parties to sign the form specified in paragraph (2) of this subsection: (A) the child's caregiver; (B) each individual who is to receive the information; (C) an authorized representative of each corporate entity that is to receive the information; (D) the child's caseworker; and (E) the caseworker's supervisor. sec.700.1405. Caregiver Training. (a) The Texas Department of Protective and Regulatory Services (TDPRS) must ensure that all child protective services (CPS) staff and foster parents who care for children in the department's conservatorship annually receive training and informational materials about the human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), and universal precautions to prevent HIV transmission. Providers of 24-hour residential child care must ensure that their direct-care staff also receive such training and informational materials every year. (b) When a child in TDPRS's conservatorship has AIDS, or when the results of a child's HIV-antibody testing have been confirmed as positive as specified in sec.700.1401(e) of this title (relating to Testing Children in TDPRS's Conservatorship for HlV Antibodies), the foster parents, 24-hour child-care providers, prospective adoptive parents, or relatives with whom the child has been placed (or with whom staff plan to place the child) must participate in specialized training arranged or provided by TDPRS. No child in TDPRS's conservatorship who is known to have AIDS or to have tested positive for HIV antibodies may be placed with a nonparental caregiver who has not received such specialized training. (c) TDPRS may either directly provide the types of training and information required in subsections (a) and (b) of this section or secure the required training and information from local health departments, contracted family- planning agencies, or local programs that serve people with AIDS. sec.700.1406. Sex Education and AIDS Prevention. The Texas Department of Protective and Regulatory Services (TDPRS) must ensure that all children in the department's conservatorship receive developmentally appropriate sex-education, whether the children are sexually active or not. The children's sex education must address the following basic topics: (1) human sexuality; (2) birth control; and (3) sexually transmitted diseases, including: (A) acquired immune deficiency syndrome (AIDS) and the human immunodeficiency virus (HIV) that causes it; (B) the transmission of HIV; and (C) the prevention of its transmission. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on February 1, 1994. TRD-9435493 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Protective and Regulatory Services Proposed date of adoption: May 1, 1994 For further information, please call: (512) 450-3765 Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's Note: As required by the Insurance Code, Article 5.96 and 5. 97, the Texas Register publishes notice of proposed actions by the Texas Board of Insurance. Notice of action proposed under Article 5.96 must be published in the Texas Register not later than the 30th day before the board adopts the proposal. Notice of action proposed under Article 5.97 must be published in the Texas Register not later than the 10th day before the Board of Insurance adopts the proposal. The Administrative Procedure Act, the Government Code, Chapters 2001 and 2002, does not apply to board action under Articles 5.96 and 5.97. The complete text of the proposal summarized here may be examined in the offices of the Texas Department of Insurance, 333 Guadalupe Street, Austin, Texas 78714-9104.) The Texas Department of Insurance at a public meeting held at for 9:00 a.m. , February 22, 1994, in room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street, Austin, will consider a form filing by the City of Austin, Texas for a surety bond form entitled "Professional Fund-Raiser's Surety Bond." This bond form is required under the provisions of Chapter 9-3-40 of the Code of the City of Austin, Texa of 1992. The proposed new "Professional Fund-Raiser's Surety Bond" is required by the provisions of Chapter 9-3-40 of the Code of the City of Austin, Texas of 1992. The "Professional Fund-Raiser's Surety Bond," ensures charitable organizations that the named professional fund-raiser, as principal, shall be bound to faithfully perform all obligations and requirements imposed under the provisions of Chapter 9-3-40 of the Code of the City of Austin 1992, and supporting regulations. The term of the bond shall be for the entire period of the Professional Fund-Raiser's license issued by the city clerk. Copies of the full text of the proposed bond form for the City of Austin, Tx are available for review in the Office of the Chief Clerk of the Texas Department of Insurance, 333 Guadalupe Street, Austin, Texas 78714-9104. For further information or to request copies of the text, please contact Angie Arizpe at (512) 322-4124 (refer to Reference Number O-0294-02). This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative Procedure Act. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on February 2, 1994. TRD-9435549 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance For further information, please call: (512) 463-6328