ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 22. EXAMINING BOARDS Part XVIII. Texas State Board of Podiatry Examiners Chapter 371. Examinations 22 TAC sec.371.1 The Texas State Board of Podiatry Examiners adopts an amendment to sec.371. 1, without changes to the proposed text as published in the January 25, 1994, issue of the Texas Register (19 TexReg 397). The amendment is necessary to clearly define terms as used in the rules for the Texas State Board of Podiatry Examiners and requirements set forth in Senate Bill 1080. The section will function be clearly explaining the definitions that are to be used throughout the rules for the Board. No comments were received regarding adoption of the rule. The amendment is adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice and podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 4, 1994. TRD-9438529 Janie Alonzo Certifying Official, Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: April 25, 1994 Proposal publication date: January 25, 1994 For further information, please call: (512) 794-0145 22 TAC sec.371.2 The Texas State Board of Podiatry Examiners adopts an amendment to sec.371. 2, without changes to the proposed text as published in the January 25, 1994, issue of the Texas Register (19 TexReg 398). The amendment is required as a result of Senate Bill 1080, which created Texas Civil Statutes, Article 4571a, concerning the issuance of provisional licenses. The section will function by defining procedures of the board in the issuance of a provisional license. Comments were received regarding from the Texas Podiatry Medical Association and from one individual regarding the issuance of a temporary license. The comments concerned the issuance of a temporary license under a preceptorship program. An additional comment was made concerning the term internship as to whether such programs existed in Texas. The Board disagrees with the issuance of a temporary license in a preceptorship program because it is not a program approved or recognized by the Council of Podiatric Medical Education of the American Podiatric Medical Association. Although internships do not currently exist in Texas, the Board approves and adopts by reference the standards for accreditations of residency and internship programs adopted by the CPME of the APMA. The amendment is adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice and podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 4, 1994. TRD-9438530 Janie Alonzo Certifying Official, Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: April 25, 1994 Proposal publication date: January 25, 1994 For further information, please call: (512) 794-0145 22 TAC sec.371.15 The Texas State Board of Podiatry Examiners adopts new sec.371.15, without changes to the proposed text as published in the January 25, 1994, issue of the Texas Register (19 TexReg 399). The new section is needed to list requirements for licensure for individuals who are in default of their Texas Guaranteed Student Loan. The section will function by describing procedures by which the Board will utilize in annual license renewal affecting those who are in default on their Texas Guaranteed Student Loan. No comments were received regarding adoption of the rule. The new section adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice and podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 4, 1994. TRD-9438532 Janie Alonzo Certifying Official, Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: April 25, 1994 Proposal publication date: January 25, 1994 For further information, please call: (512) 794-0145 Chapter 373. Identification of Practice 22 TAC sec.373.4 The Texas State Board of Podiatry Examiners adopts an amendment to sec.373. 4, without changes to the proposed text as published in the January 25, 1994, issue of the Texas Register (19 TexReg 399). This section defines the terms commonly used in the profession. The amendment deletes the reference to clinics because there is no longer a need for limitations on the use of the term. The section will function by describing the Board rules on the use of Trade Names and Assumed Names in advertising. One comment was received regarding the changes to sec.373.4(d) and the fact that sec.373.2(e) was not changed, stating that confusion will result unless sec.373.2 is amended, also. The Board agrees with the comment. A proposed amendment will be published in the Texas Register regarding sec.373.2(e). The amendment is adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice and podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 4, 1994. TRD-9438528 Janie Alonzo Certifying Official, Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: April 25, 1994 Proposal publication date: January 25, 1994 For further information, please call: (512) 794-0145 Chapter 375. Rules Governing Conduct 22 TAC sec.375.4 The Texas State Board of Podiatry Examiners adopts an amendment to sec.375. 4, without changes to the proposed text as published in the January 25, 1994, issue of the Texas Register (19 TexReg 400). The new section sets forth procedure for the licensee to provide consumer information. The new section is needed to comply with Senate Bill 1080. The section will function by requiring the licensee to display in each podiatric office information regarding the Board's name, address, and telephone number as procedure in the filing of complaints by patients or other public members. No comments were received regarding adoption of the rule. The new section is adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice and podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 4, 1994. TRD-9438533 Janie Alonzo Certifying Official, Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: April 25, 1994 Proposal publication date: January 25, 1994 For further information, please call: (512) 794-0145 22 TAC sec.375.6 The Texas State Board of Podiatry Examiners adopts new sec.375.6, without changes to the proposed text as published in the January 25, 1994, issue of the Texas Register (19 TexReg 400). The new section is necessary to set forth procedures for the Board to allow public commented during Board Meetings. The section will function by describing procedures for permitting public comment during Board Meetings. One comment was received concerning the rule. The commenter suggested that the rule would restrict public comment to specific time during the meeting. No groups or associations commented for or against the section. The Board disagrees with the comment because the rule specifically provides for public comment on any issue under the jurisdiction of the Board. It does not restrict public comment to a specific time. The new section is adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice and podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 4, 1994. TRD-9438534 Janie Alonzo Certifying Official, Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: April 25, 1994 Proposal publication date: January 25, 1994 For further information, please call: (512) 794-0145 22 TAC sec.375.11 The Texas State Board of Podiatry Examiners adopts an amendment to sec.375. 11, without changes to the proposed text as published in the January 25, 1994, issue of the Texas Register (19 TexReg 400). This amendment defines the timeframe for keeping patient records. Changes were needed to explain what is included in records and the procedure to follow when a patient requests copies of his records. This section will function by describing the rules for podiatrists in the timeframe for maintaining patient records. One comment was received. The commenter stated the proposed rule is vague and ambiguous. No groups or associations commented for or against the section. The Board disagrees with the comment because the rule clearly states that records are created and maintained by the podiatrist, the procedure to request records from the podiatrist, and what constitutes records that are to be maintained by the podiatrist. The amendment is adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulations of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 4, 1994. TRD-9438531 Janie Alonzo Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: April 25, 1994 Proposal publication date: January 25, 1994 For further information, please call: (512) 794-0145 Chapter 376. Violations and Penalties 22 TAC sec.sec.376.1-367.7 The Texas State Board of Podiatry Examiners adopts the repeal of sec.sec.376. 1-376.7, without changes to the proposed text as published in the January 28, 1994, issue of the Texas Register (19 TexReg 566). The repeals are necessary in order to adopt new rules. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulations of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 4, 1994. TRD-9438527 Janie Alonzo Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: April 25, 1994 Proposal publication date: January 28, 1994 For further information, please call: (512) 794-0145 22 TAC sec.sec.376.1-376.11 The Texas State Board of Podiatry Examiners adopts new sec.sec.376.1-376.11, without changes to the proposed text as published in the January 28, 1994, issue of the Texas Register (19 TexReg 566). The new rules regarding fines and penalties, administrative fines, complaint forms, investigations of complaints filed with the Board and the monitoring of licensee compliance are required to comply with Senate Bill 1080. The section will function by describing the procedures for compliance investigation, fines and administrative penalties. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulations of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 4, 1994. TRD-9438526 Janie Alonzo Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: April 25, 1994 Proposal publication date: January 28, 1994 For further information, please call: (512) 794-0145 Chapter 377. Procedure Governing Grievances, Hearings and Appeals 22 TAC sec.377.43 The Texas State Board of Podiatry Examiners adopts an amendment to sec.377. 43, without changes to the proposed text as published in the January 25, 1994, issue of the Texas Register (19 TexReg 401). The amendment was needed to comply with statute. This section will function by describing the procedure for filing of an appeal in district court. One comment was received stating that the rule would disadvantage licensees by making them appeal to Travis County. No groups or associations commented for or against the section. The Board disagrees with this comment because it is not in accordance with the Podiatry Practice Act, Texas Civil Statutes, Article 4573(e). The amendment is adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulations of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 4, 1994. TRD-9438535 Janie Alonzo Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: April 25, 1994 Proposal publication date: January 25, 1994 For further information, please call: (512) 794-0145 Chapter 378. Continuing Education 22 TAC sec.378.1 The Texas State Board of Podiatry Examiners adopts an amendment to sec.378. 1, without changes to the proposed text as published in the January 25, 1994, issue of the Texas Register (19 TexReg 401). This amendment describes the requirements for continuing education and is needed to comply with Senate Bill 1080. This section will function by describing the procedures for podiatrists in accounting for CME hours and reporting of such hours. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulations of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 4, 1994. TRD-9438537 Janie Alonzo Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: April 25, 1994 Proposal publication date: January 25, 1994 For further information, please call: (512) 794-0145 22 TAC sec.378.8 The Texas State Board of Podiatry Examiners adopts new sec.378.8, without changes to the proposed text as published in the January 25, 1994, issue of the Texas Register (19 TexReg 402). The new section sets forth the rules for placing a podiatrist license on inactive status as required by Senate Bill 1080. The section will function by describing the procedures and requirements for licensees to be places on inactive status and timeframes associated with such status. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulations of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 4, 1994. TRD-9438536 Janie Alonzo Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: April 25, 1994 Proposal publication date: January 25, 1994 For further information, please call: (512) 794-0145 Chapter 379. Fees and License Renewal 22 TAC sec.379.1, sec.379.2 The Texas State Board of Podiatry Examiners adopts new sec.379.1 and sec.379.2, without changes to the proposed text as published in the January 25, 1994, issue of the Texas Register (19 TexReg 402). The new sections are necessary to implement fee requirements as required by Senate Bill 1080. The sections will function by establishing the generation of sufficient financial resources to implement the provision of the Act as required by Senate Bill 1080. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulations of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 4, 1994. TRD-9438538 Janie Alonzo Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: April 25, 1994 Proposal publication date: January 25, 1994 For further information, please call: (512) 794-0145 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 29. Purchased Health Services Subchapter L. General Administration 25 TAC sec.29.1121 On behalf of the State Medicaid Director, the Texas Department of Health (department) submits under federal mandate an adopted amendment to sec.29.1121, concerning reimbursement for abortions, in its Purchased Health Services rules. This amendment is being adopted under federal mandate to comply with Public Law 103-112, the Health and Human Services Appropriation Bill, which was passed by Congress, effective October 1, 1993. This public law revises the Hyde Amendment, which relates to federal funding of abortions. The amendment includes reimbursement for abortions performed to save the life of the mother and to terminate pregnancies resulting from rape or incest. This amendment applies when a claim for such an abortion is paid by the state on or after October 1, 1993, which is the effective date of this amendment. This amendment is adopted under the Human Resources Code, sec.32.021 and Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and is submitted to the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). The amendment is adopted in compliance with federal requirements to be effective October 1, 1993. sec.29.1121. Reimbursement for Abortions. Reimbursement for an abortion is available when a physician has found and so certified in writing to the Texas Department of Health (department) or its designee, [health insuring agent] that, on the basis of his or her [his/her] professional judgment, the life of the mother would be endangered if the fetus were carried to term, or that the pregnancy was the result of rape or incest. In cases which do not clearly satisfy the criteria for reimbursement under the Medicaid program [endangering maternal life], as established by the department or its designee, [and health insuring agent,] a second medical opinion may be required [by the health insuring agent]. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 5, 1994. TRD-9438622 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Effective date: October 1, 1993 For further information, please call: (512) 458-7236 Chapter 134. Private Phychiatric Hospitals and Crisis Stabilization Units The Texas Department of Health (department) adopts new sec.134.1-134. 3, sec.sec.134.11-134.14, sec.sec.134.21-134.23, sec.sec.134.51-134.54, sec.sec.134. 71-134.73, and sec.134.91 with changes to the proposed text as published in the November 2, 1993, issue of the Texas Register (18 TexReg 7989). These sections are adopted in order to implement the laws (Acts 1993, 73rd Legislature, Regular Session) that were effective September 1, 1993. These laws required the Texas Board of Health to establish rules that hospitals must implement. Chapter 705 (Senate Bill 205) pertains to marketing practices; patients rights; the admission and treatment of minors; the intake, assessment and admission of patients receiving mental health services, chemical dependency services or comprehensive medical rehabilitation services, and patients receiving electroconvulsive therapy. Chapter 903 (Senate Bill 207) pertains to audits of billing for improper, unreasonable or medically or clinically unnecessary treatments. Chapter 573 (Senate Bill 210) pertains to illegal remuneration, abuse, neglect, unethical or unprofessional conduct towards patients receiving mental health services, chemical dependency services or comprehensive medical rehabilitation services; and the transfer of functions, powers, duties, and obligations of licensing private psychiatric hospitals and crisis stabilization units from the Texas Department of Mental Health and Mental Retardation to the department. The changes made are based on comments submitted during the comment period. The following comments were received concerning sec.134.1 (relating to Purpose). Comment: Relating to sec.134.1, a commenter suggested that the department state the subject matter of chapters 161, 164, 311, 313, 321, and 577. Response: The department agrees and has stated the subject matter of each chapter. Comment: Relating to sec.134.1, a commenter suggested that the terms "private mental hospital" and "mental health facility" be replaced with terms that were less confusing. Response: The department agrees and has replaced the term "private mental hospital" with "hospital" and has replaced the term "mental health facility" with "crisis stabilization unit" throughout the rules. The Following Comments Were Received Concerning sec.134.2 (Relating to Definitions.) Comment: A commenter suggested that the definition of "abuse" include "sexual exploitation and verbal abuse". Response: The department agrees and has modified the definition of "abuse" to include "sexual exploitation and verbal abuse". Comment: A commenter suggested that the definition of "affiliate" was too narrow. Response: The department agrees and has modified the language accordingly. Comment: A commenter stated that the department did not define "crisis stabilization unit". Response: The department responds that the definition of a "crisis stabilization unit" is adopted in 25 TAC, sec.401.643, Subchapter K, effective December 4, 1989. Comment: Two commenters suggested that the definition of an "inpatient mental health facility" was confusing. Response: The department agrees and has deleted the term and language. Comment: A commenter suggested that the definition of "manager" and "management services" was confusing. Response: The department agrees and has modified the language for clarity. Comment: Two commenters suggested that the department's definition of a "mental health facility" was too broad. Response: The department agrees and has deleted the term and language and used "crisis stabilization unit" throughout the rules. Comment: A commenter suggested that the term "mental hospital" was confusing. Response: The department agrees and has deleted the term. Comment: A commenter suggested that the term "owner" be added. Response: The department agrees and has provided language for the definition. Comment: A commenter suggested the definition of "person" was incomplete. Response: The department agrees and has expanded the definition. Comment: A commenter suggested that the term "person with a disclosable interest" be deleted. Response: The department agrees and has deleted the term. Comment: A commenter suggested that the definition of "private mental hospital" be changed to "hospital" and that the last sentence be deleted from the definition. Response: The department agrees and has modified the language accordingly throughout the rules. Comment: A commenter suggested that the department delete the terms "private mental hospitals" and "private mental health facilities" and substitute "private psychiatric hospitals" and "crisis stabilization units." Response: The department agrees and has revised the language accordingly throughout the rules. Comment: A commenter stated that the department did not define "qualified mental health professional." Response: The department responds that the definition of qualified "mental health professional" is adopted in 25 TAC sec.401.583, Subchapter J, effective February 10, 1994. Comment: Relating to sec.134.2, a commenter stated that the department did not define "residential treatment services" or "residential treatment facility. " Response: The department agrees and responds that it has no statutory authority to license or regulate residential treatment services or residential treatment facilities. The Following Comments Were Received Concerning sec.134.3 (Relating to Fees.) Comment: Relating to sec.134.3(a)(2), a commenter suggested that the fee requirement for an initial license and first annual license was confusing. Response: The department agrees and has deleted the requirement for a fee for first annual license accordingly. Comment: Relating to sec.134.3(b)-(d), a commenter suggested that the language specifically state hospital prior to each subsection. Response: The department agrees and has amended the language accordingly. The Following Comments Were Received Concerning sec.134.11 (Relating to Application and Issuance of Initial License for First-Time Applicants and First Annual License). Comment: Relating to sec.134.11, one commenter stated that this section does not specifically state the entities to which this section applies. Response: The department partially agrees and responds that sec.134.11 applies to private psychiatric hospitals and crisis stabilization units. Comment: Relating to sec.134.11, a commenter suggested that the language provided did not clearly explain the process for issuing, withdrawing, and denying an application or license. Response: The department agrees and has deleted the requirement for an application for a first annual license at sec.134.11(j) and sec.134.13(a)(3); and moved the language from sec.134.11(i) and (k) to sec.134.12(a) for clarity. Comment: Relating to sec.134.11(b)(7), a commenter asked if a final approval letter from the Texas Department of Licensing and Regulation (TDLR) should be submitted with project plans and specifications. Response: The department agrees and has added new language at sec.134.11(b) (7) and sec.134.51(a)(7) and deleted the language at sec.134.52(b)(1)(C). Comment: Relating to sec.134.11(c), a commenter suggested that the person for whom the requested information must be disclosed should be identified. Response: The department agrees and has modified the language accordingly. Comment: Relating to sec.134.11(c)(10), a commenter suggested that disclosure should be limited within the state or states within the HCFA region. Response: The department disagrees and will let the language stand. Comment: Relating to sec.134.11(d)(1)(C), a commenter suggested that the language be deleted. Response: The department agrees and has deleted the language. Comment: Relating to sec.134.11(d)(4), a commenter suggested that 5.0% should be changed to 10%. Response: The department agrees and has modified the language accordingly. The Following Comments Were Received Concerning sec.134.12 (Relating to Issuance and Renewal of Annual License). Comment: Relating to sec.134.12, a commenter suggested that the language provided is not clear and difficult to understand. Response: The department partially agrees and has amended and expanded the language for clarity. Comment: Relating to sec.134.12, a commenter suggested that if the department is planning to do an on-site licensure inspection notice should be given to the facility of the time, date and scope of the visit including documents to be requested and personnel that need to be available. Response: The department disagrees that this should be added to the rules. This notice is given according to our procedures. Comment: Relating to sec.134.12(b), a commenter suggested the department should be required to send a notice of expiration 30 days prior to the expiration of a license. Response: The department disagrees as there is no statutory requirement for the department to notify the facility within 30 days. Comment: Relating to sec.134.12(c)(6), a commenter suggested that the language is unnecessary. Response: The department agrees and has deleted the language. The Following Comments Were Received Concerning sec.134.13 (Relating to Time Periods for Processing and Issuing Licenses). Comment: Relating to sec.134.13(a)(3), a commenter suggested that the language was confusing and unnecessary. Response: The department agrees and has deleted the language. Comment: Relating to sec.134.13(d), a commenter suggested that a written report of facts shall be submitted by the division rather than the department. Response: The department agrees and has deleted the term department and has added division. The Following Comments Were Received Concerning sec.134.14 (Relating to Change of Ownership or Services). Comment: Relating to sec.134.14(a)(4), a commenter suggested that a provision for waiving an inspection following a change of ownership was confusing. Response: The department partially agrees and has expanded the language for clarity. Comment: Relating to sec.134.14(a)(5), a commenter suggested that the language was confusing and did not specify what happens with an annual license. Response: The department agrees and has added language to provide clarity. Comment: Relating to sec.134.14(c)(1), a commenter suggested that there should be no requirement to give notice on each and every service change within a hospital. Response: The department disagrees and will let the language stand as proposed. Comment: Relating to sec.134.14(c)(6), a commenter suggested that notice for construction, renovation or modification should only be triggered when building permits are required. Response: The department disagrees and will let the language stand as proposed. The Following Comments Were Received Concerning sec.134.21 (Relating to Licensure Requirements and Standards for Private Psychiatric Hospitals). Comment: Relating to sec.134.21(c), a commenter suggested that the language be revised by replacing the word "ensure" with the word "monitor". Response: The department agrees and has changed the language accordingly. Comment: Relating to sec.134.21(d), one commenter stated that according to the Nursing Practice Act, Texas Civil Statutes, Articles 4525a and 4525b, the correct language is professional nurse reporting and peer review rather than peer review and mandatory reporting requirements. Response: The department agrees with the commenter and has made the correction. Comment: Relating to sec.134.21(i)(2), a commenter suggested that a person with "unclean hands" should not be protected by reporting themselves or a facility for a possible violation of a law or rule. Response: The department disagrees with the comment and will the language stand as proposed. Comment: Relating to sec.134.21(j), a commenter suggested that the language is inconsistent with the rule related to reporting abuse in private psychiatric hospitals, sec.404, Subchapter E. Response: The department disagrees and will let the language stand as proposed. Comment: Relating to sec.134.21(j)(3), a commenter suggested that "sexual exploitation" be added to the statement. Response: The department agrees and has modified the language accordingly. Comment: Relating to sec.134.21(m), a commenter suggested adding the citation relating to the current memorandum of understanding concerning abuse and neglect. Response: The department agrees and has added the citation. Comment: Relating to sec.134.21(n), a commenter suggested the language should merely require the hospital to comply with sec.404, Subchapter E. Response: The department agrees and has deleted the language accordingly. Comment: Relating to sec.134.21(n)(4), a commenter suggested the language was unnecessary and that a signed cover sheet or an initialed admission form should be sufficient. Response: The department agrees and has deleted the language. Comment: Relating to sec.134.21(n)(5), a commenter suggested the department should provide patient rights in languages other than English. Response: The department has deleted the language. Comment: Relating to sec.134.21(o)(1), a commenter asked if all issues related to standards of care were under the authority of the Texas Department of Mental Health and Mental Retardation (TXMHMR) and there should be a requirement to prevent persons trained only in child care from providing care to adults. Response: The department responds that standards of care are the authority of TXMHMR, and there is no statutory requirement to prevent persons trained only in child care from providing care to adults. Comment: Relating to sec.134.21(n)-(q), a commenter asked if it is necessary for both the department and TXMHMR to have rules governing patients rights. Response: The department agrees and has deleted the language. The Following Comments Were Received Concerning sec.134.22 (Relating to Standards for the Provision of Psychiatric Services in Private Psychiatric Hospitals). Comment: Relating to sec.134.22(a), a commenter suggested the language was beyond the department's statutory authority. Response: The department disagrees and will let the language stand as proposed. Comment: Relating to sec.134.22(a), a commenter suggested that admission criteria be applied uniformly to all patients and not just minors. Response: The department agrees and has modified the language accordingly. Comment: Relating to sec.134.22(a)(1)(E), a commenter asked if the rules relating to restraint and seclusion promulgated by TXMHMR are being enforced by the department. Response: The department responds that the rules are being enforced and has added them to the list of rules adopted by reference. Comment:Relating to sec.134.22(a)(2), a commenter suggested the language required a pre-admission screening procedure that was not clearly defined and beyond the statutory authority of the department. Response:The department disagrees with the comment but has modified the language for clarity. Comment: Relating to sec.134.22(b), a commenter suggested that the effective dates of the rules adopted by reference from the Texas Department of Mental Health and Mental Retardation were not current. Response: The department agrees with the comment and has corrected the effective dates. Comment: Relating to sec.134.22(b)(2), a commenter suggested that language be added to indicate where the patient's bill of rights should be posted. Response: The department agrees and has modified the language to indicate where the patient's bill of rights should be posted. Comment: Relating to sec.134.22(b)(2), a commenter suggested that this section is confusing and does not specify the entities to which it applies. Response: The department partially agrees and responds that sec.134.22(b)(2), now renumbered as sec.134.22(b)(1)(B), applies to private psychiatric hospitals and crisis stabilization units and has renumbered sec.134.22(b)(5) as sec.134.22(b)(2) for clarity . The Following Comments Were Received Concerning sec.134.23 (Relating to Standards for the Provision of Chemical Dependency Services in Private Psychiatric Hospitals). Comment: Relating to sec.134.23(a), a commenter suggested that admission criteria be applied uniformly to all patients and not just minors. Response: The department agrees and has modified the language accordingly. Comment: Relating to sec.134.23(b)(3), a commenter suggested that the language was redundant. Response: The department agrees and has deleted the language accordingly. The Following Comments Were Received Concerning Subchapter D (Relating to Physical Plant and Life Safety Code). Comment: Relating to Subchapter D, concerning Physical Plant and Life Safety Code Requirements, one commenter suggested that the subchapter does not specify to which facilities the title applies. Response: The department partially agrees and responds that the title applies to private psychiatric hospitals and crisis stabilization units and has changed the title to "Physical Plant and Fire Safety Requirements." The Following Comments Were Received Concerning sec.134.51 (Relating to Construction Plans, Specifications and Inspections). Comment: Relating to sec.134.51(a)(5), a commenter suggested that every minor remodeling change need not be reported to the department. Response: The department disagrees with the comment and has added language to provide clarity. Comment: Relating to sec.134.51(a), a commenter asked if a final approval letter from the Texas Department of Licensing and Regulation (TDLR) should be submitted with project plans and specifications. Response: The department agrees and has added new language at sec.134.51(a) (7). Comment: Relating to sec.134.51(c)(2), one commenter suggested that the language be revised to indicate only one set of drawings. Response: The department agrees and has revised the language accordingly. Comment: Relating to sec.134.51(d)(2), a commenter suggested the paragraph was unnecessary. Response: The department agrees and has deleted the paragraph. The Following Comments Were Received Concerning sec.134.52 (Relating to Construction and Building Requirements). Comment: Relating to sec.134.52, a commenter suggested that the board delete or delay adoption. Response: The department disagrees and will let the language stand as proposed. Comment: Relating to sec.134.52(b)(1)(C), a commenter suggested that the commission is confusing and should be deleted. Response: The department agrees and has modified the language to indicate TDLR throughout the rules. The Following Comments Were Received Concerning sec.134.53 (Relating to General Considerations). Comment: Relating to sec.134.53, a commenter suggested that the board delete or delay adoption. Response: The department disagrees and will let the language stand as proposed. Comment: Relating to sec.134.53(a)(1)(A)(iii), a commenter suggested that the requirement appeared to be an attempt to establish a certificate of need program. Response: The department agrees and has deleted the language. Comment: Relating to sec.134.53(b)(3)(E), a commenter suggested the language specify applicability to new and existing construction. Response: The department responds that the requirement applies to new construction and existing buildings. Comment: Relating to sec.134.53(b)(3)(F)(ii), a commenter asked if the 10% requirement applied to new construction. Response: The department responds that the requirement applies to all existing facilities and new construction and has modified the language for clarity. Comment: Relating to sec.134.53, Notes Applicable to Table A-1, one commenter suggested that the notes be modified to apply to psychiatric hospitals. Response: The department agrees and has deleted language accordingly to provide clarity. Comment: Relating to sec.134.53(r)(4)(B), a commenter suggested that language be added to specify the need for one night-light fixture in patient rooms. Response: The department agrees and has added the language. Comment: Relating to sec.134.53(r)(7)(A), a commenter suggested that language be added to specify the need for a duplex-type grounding receptacle in patient rooms. Response: The department agrees and has added the language. Comment: Relating to sec.134.53(r)(7)(D), a commenter suggested that language be added to specify the need for one duplex-type grounding receptacle, identified by color or marking, on the emergency system. Response: The department agrees and has added the language. Comment: Relating to sec.134.53(r)(10)(C), one commenter suggested that remote annunciator panels be added to ensure patient safety. Response: The department agrees and has added new language accordingly. The Following Comments Were Received Concerning sec.134.54 (Relating to Other Codes and Standards). Comment: Relating to sec.134.54, a commenter suggested that the board delete or delay adoption. Response: The department disagrees and will let the language stand as proposed. Comment: Relating to sec.134.54(b)(1), a commenter suggested that the department adjust its records to reflect the correct edition of the current Uniform Building Code and correct address for the International Conference of Building Officials. Response: The department agrees with the commenter and has revised the language accordingly. The Following Comments Were Received Concerning sec.134.71 (Relating to Inspections and Investigation Procedures). Comment: Relating to sec.134.71(b), a commenter suggested the language does not sufficiently address the requirement that the department keep certain documents confidential. Response: The department responds that it will comply with the Open Records Act in all disclosure. Comment: Relating to sec.134.71(e)(2), a commenter suggested the language does not clearly explain how the department conducts complaint investigations. Response: The department partially agrees and has added language for clarity. Comment: Relating to sec.134.71(i), a commenter suggested that the provision for an exit conference was not clear. Response: The department partially agrees and has added language for clarity and deleted unnecessary language at sec.134.71(g). Comment: Relating to sec.134.71(o), a commenter suggested that the language be deleted. Response: The department agrees and has deleted the language. The Following Comments Were Received Concerning sec.134.72 (Relating to Audits of Billing). Comment: Relating to sec.134.72(d), a commenter suggested that the language be changed to indicate 30 days rather than 60 days. Response: The department agrees and has modified the language accordingly. Comment: Relating to sec.134.72(f), a commenter suggested the procedure for conducting an investigation was confusing. Response: The department partially agrees and has added language for clarity. Minor editorial changes were made for clarification purposes. Comments received on the proposed rules during the comment period were from individuals; Charter Medical Corporation; International Conference of Building Officials; Texas Department of Mental Health and Mental Retardation; Texas Hospital Association; and The Texas Council of Community Mental Health and Mental Retardation Centers, Inc. The commenters were neither for nor against the rules in their entirety; however, they raised questions, offered comments for clarification concerns, and made recommendations concerning specific provisions in the rules. Subchapter A. General Provisions 25 TAC sec.sec.134.1-134.3 The new sections are adopted under the Health and Safety Code, Chapter 577, which provides the Texas Board of Health (board) with authority to adopt rules to establish and enforce minimum standards for the licensing of psychiatric hospitals and crisis stabilization units; Chapters 161, 164, 311, 313, and 321, relating to abuse, neglect and unprofessional or unethical conduct in health care facilities; treatment facilities marketing and admission practices; health care facility surveys, and provision of mental health, chemical dependency and rehabilitation services; construction, inspection, and regulation; powers and duties of hospitals; cooperative agreements; and sec.12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health. sec.134.1. Purpose. (a) The purpose of this chapter is to implement the Health and Safety Code, Chapters 161, 164, 311, 313, and 321, relating to abuse, neglect and unprofessional or unethical conduct in health care facilities; treatment facilities marketing and admission practices; health care facility surveys, construction, inspection, and regulation; powers and duties of hospitals; cooperative agreements; provision of mental health, chemical dependency and rehabilitation services, and Chapter 577, relating to hospitals and crisis stabilization units licensed by the Texas Department of Health (department). (b) These sections provide minimum standards for licensing hospitals and crisis stabilization units; procedures for granting, denying, suspending, or revoking a license; patient care; construction; audits of billing; complaints against the department and cooperative agreements among hospitals. sec.134.2. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Abuse-Abuse includes: (A) any act or failure to act by an employee of a hospital which was performed, or which was failed to be performed, knowingly, recklessly, or intentionally, and which caused, or may have caused, injury or death to a patient, and includes acts such as: (i) the rape, sexual assault, or sexual exploitation of a patient; (ii) the striking of a patient; (iii) the use of excessive force when placing a patient in bodily restraints; and (iv) the use of bodily or chemical restraints on a patient which is not in compliance with federal and state laws and regulations; and (B) verbal abuse, coercive or restrictive actions that are illegal or not justified by the patient's condition and that are in response to the patient's request for discharge or refusal of medication, therapy or treatment. Act-The Private Mental Hospital and Other Mental Health Facilities Licensing Law, The Health and Safety Code, Chapter 577. Affiliate-With respect to an applicant or owner which is: (A) a corporation-consisting of: (i) each officer; (ii) director; (iii) stockholder with a direct ownership of at least 10%; (iv) subsidiary; and (v) parent company; (B) a limited liability company-consisting of: (i) each officer; (ii) member; and (iii) parent company; (C) an individual-any of the following: (i) the individual's spouse; (ii) each partnership and each partner thereof of which the individual or any affiliate of the individual is a partner; and (iii) each corporation in which the individual is an officer, director, or stockholder with a direct ownership of at least 10%; (D) a partnership-consisting of: (i) each partner; and (ii) any parent company; and (E) a group of co-owners under any other business arrangement -consisting of: (i) each officer; (ii) director or the equivalent under the specific business arrangement; and (iii) each parent company. Applicant-A person who seeks a hospital or crisis stabilization unit license from the department. Attorney general -The attorney general of Texas or any assistant attorney general acting under the direction of the attorney general of Texas. Board-The Texas Board of Health. Chemical dependency -Dependency resulting from: (A) the abuse of alcohol or a controlled substance; (B) psychological or physical dependence on alcohol or a controlled substance; or (C) addiction to alcohol or a controlled substance. Commitment order -A court order for involuntary inpatient mental health services under this subtitle. Cooperative agreement -An agreement among two or more hospitals for the allocation or sharing of health care equipment, facilities, personnel, or services. Department-The Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3199. Director-The director of the Health Facility Licensure and Certification Division, Texas Department of Health. Disciplinary action -Denial, suspension, or revocation of a license, issuance of an emergency order or imposition of an administrative penalty. Division-The Health Facility Licensure and Certification Division, Texas Department of Health. Fast-track projects -A construction project in which it is necessary to begin initial phases of construction before later phases of the construction documents are fully completed in order to establish other design conditions or because of time constraints such as mandated deadlines. Governing body -The governing authority of a hospital which is responsible for a hospital organization, management, control, and operation, medical staff; includes the owner or partners for hospitals owned or operated by an individual or partners. Hospital-An establishment offering inpatient services, including treatment, facilities, and beds for use beyond 24 hours, for the primary purpose of providing psychiatric assessment and diagnostic services and psychiatric inpatient care and treatment for mental illness. Such services must be more intensive than room, board, personal services, and general medical and nursing care. Although substance abuse services may be offered, a majority of beds must be dedicated to the treatment of mental illness in adults and children. Hospital administration -An individual who has the authority to represent the hospital and who is responsible for the operation of the hospital according to the policies and procedures of the hospital's governing body. Illegal conduct -A conduct prohibited by state or federal law. Learning disability -When a severe discrepancy exists when the individual's assessed intellectual ability is above the mentally retarded range, but where the individual's assessed educational achievement in areas specified is more than one standard deviation below the individual's intellectual ability. Licensee-A person who has been granted a hospital license or crisis stabilization unit license. Manager-A person having a contractual relationship to provide management services to a hospital or crisis stabilization unit for the overall operation of a hospital or crisis stabilization unit, including administration, staffing, or delivery of services. Examples of contracts for services that will not be considered to be contracts for management services shall include contracts solely for maintenance, laundry, or food services. Medical staff-A physician or group of physicians who by action of the governing body of a hospital are privileged to work in and use the facilities of a hospital for or in connection with the observation, care, diagnosis,or treatment of an individual who is, or may be, suffering from mental illness. Mental health services-All services concerned with research, prevention, and detection of mental disorders and disabilities, and all services necessary to treat, care for, control, supervise, and rehabilitate persons who have a mental disorder or disability, including persons whose mental disorders or disabilities result from alcoholism or drug addiction. Mental illness -An illness, disease, or condition, other than epilepsy, senility, alcoholism, or mental deficiency that: (A) substantially impairs a person's thought, perception of reality, emotional process, or judgment; or (B) grossly impairs behavior as demonstrated by recent disturbed behavior. Mental retardation -Significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period. Neglect-A negligent act or omission by any individual responsible for providing services in a hospital which caused or may have caused injury or death to a patient or which placed a patient at risk of injury or death, and includes an act or omission such as the failure to establish or carry out an appropriate individual program plan or treatment plan for a patient, the failure to provide adequate nutrition, clothing, or health care to a patient, or the failure to provide a safe environment for a patient, including the failure to maintain adequate numbers of appropriately trained staff. Non-physician mental health professional-A health professional that is: (A) a psychologist licensed to practice in this state and designated as a health service provider; (B) a registered nurse with a master's or doctoral degree in psychiatric nursing; or (C) a certified social worker with a master's or doctoral degree and advanced clinical practitioner recognition. Owner-One of the following persons which will hold or does hold a license issued under the statute in the person's name or the person's assumed name: (A) a corporation; (B) a limited liability company; (C) an individual; (D) a partnership if a partnership name is stated in a written partnership agreement or an assumed name certificate; (E) all partners in a partnership if a partnership name is not stated in a written partnership agreement or an assumed name certificate; or (F) all co-owners under any other business arrangement. Patient-An individual who is receiving voluntary or involuntary mental health services under this subtitle. Person-An individual, firm, partnership, corporation, association, or joint stock company, and includes a receiver, trustee, assignee, or other similar representative of those entities. Physician-A physician licensed to practice medicine in this state or a person employed by a federal agency who has a license to practice medicine in any state. Political subdivision -A county, municipality, or hospital district in this state but does not include a department, board, or agency of the state that has statewide authority and responsibility. Presurvey conference -A conference held with department staff and the applicant or his or her representative to review licensure standards and survey documents and provide consultation prior to the on-site licensure inspection. Psychiatric disorder -A clinically significant behavioral or psychological syndrome or pattern that occurs in an individual and that is typically associated with either a painful syndrome (distress) or impairment in one or more important areas of behavioral, psychological, or biological function and is more than a disturbance in the relationship between the individual and society. State mental hospital-A mental hospital operated by the Texas Department of Mental Health and Mental Retardation. Unethical conduct -Conduct prohibited by the ethical standards adopted by state or national professional organizations for their respective professions or by rules established by the state licensing agency for the respective profession. Unprofessional conduct -Conduct prohibited under rules adopted by the state licensing agency for the respective profession. sec.134.3. Fees. (a) General. (1) Fees paid to the department are nonrefundable. (2) All fees submitted for an initial license, license renewal, plan review or construction inspection shall be paid by check or money order made payable to the Texas Department of Health. (b) Hospital license fees. The license fee for an initial license or a renewal license is $250. (c) Hospital plan review fees. All fees must be submitted for each application of plans and specifications covering construction of new buildings or alterations to existing buildings as follows: (1) A fee of $650 must accompany the application for stage one (preliminary plans and specifications) for review and approval by the department. (2) An additional fee of $650 must accompany stage two (final plans and specifications) for review and approval by the department. (3) When substantial changes to the project are made after any stage of submittal, an additional submittal and fee may be required as determined by the department. (4) Architectural plans will not be reviewed until the required fees and applications for plan review for stage one and stage two are received by the department. (d) Hospital construction inspection fees. A fee of $650 and an application for construction inspection for each inspection shall be submitted to the department at least four weeks prior to the anticipated inspection date. A construction inspection will not be conducted until all required fees are received by the department. If additional construction inspections of the project are required by the department or requested by the hospital, a $650 construction inspection fee for each additional inspection shall be submitted to the department prior to each additional construction inspection. (e) Compliance. Fees paid to the department for licensure applications, plan reviews, and construction inspections for crisis stabilization units shall comply with 25 TAC, Chapter 401, Subchapter K (relating to Rules Governing Licensure of Crisis Stabilization Units). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 6, 1994. TRD-9438703 Susan K. Steeg General Counsel Texas Department of Health Effective date: May 2, 1994 Proposal publication date: November 2, 1993 For further information, please call: (512) 834-6645 Subchapter B. Application and Issuance of a License 25 TAC sec.sec.134.11-134.14 The new sections are adopted under the Health and Safety Code, Chapter 577, which provides the Texas Board of Health (board) with authority to adopt rules to establish and enforce minimum standards for the licensing of psychiatric hospitals and crisis stabilization units; 161, 164, 311, 313, 321 relating to abuse, neglect and unprofessional or unethical conduct in health care facilities; treatment facilities marketing and admission practices; health care facility surveys, and provision of mental health, chemical dependency and rehabilitation services; construction, inspection, and regulation; powers and duties of hospitals; cooperative agreements; and sec.12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health. sec.134.11. Application and Issuance of Initial License for First-Time Applicants. (a) General. The first application for a hospital license is an application for an initial license issued by the Texas Department of Health (department). The application for initial license is also an application for the first annual license. (b) Application submittal. Upon written request, the department shall furnish a person with an application form for a hospital license. The applicant shall submit the following to the department no more than 60 days prior to the projected opening date of the hospital and shall retain a copy of all documentation that is submitted to the department including: (1) an accurate and complete application form; (2) a copy of an approved fire safety inspection report from the local fire authority in whose jurisdiction the hospital is based that is dated no earlier than one year prior to the hospital opening date; (3) the license fee; (4) a notarized affidavit signed by the hospital administration attesting to the applicant's ability to comply with the licensing rules governing hospitals; (5) if the applicant is a corporation, a current letter from the state comptroller's office stating the corporation is in good standing or a notarized certification on the license application that the tax owed to the state under the Tax Code, Texas Codes Annotated, Chapter 171, is not delinquent or that the corporation is exempt from the payment of the tax and is not subject to the Tax Code, Texas Codes Annotated, Chapter 171; (6) if the hospital applicant is accredited by the Joint Commission on Accreditation of Healthcare Organizations or the American Osteopathic Association, a copy of documentation from the accrediting body showing that the hospital is currently accredited; and (7) the final approval letter from the Texas Department of Licensing and Regulation (TDLR) for project plans and specifications. (c) Disclosure requirements. An applicant must disclose the following information for the two-year period preceding the application date, data concerning the applicant, and the real property, lessors affiliates, and managers of the applicant, without regard to whether the data required relates to current or previous events: (1) denial, suspension, or revocation of a hospital license, a private psychiatric hospital license, or a license for any health care facility in any state; (2) federal Medicare or state Medicaid sanctions or penalties; (3) state or federal criminal convictions which imposed incarceration; (4) federal or state tax liens; (5) unsatisfied final judgments (6) operation of a hospital that has been decertified in any state under Medicare or Medicaid; (7) debarment, exclusion, or contract cancellation in any state from Medicare or Medicaid; (8) eviction involving any property or space used as a hospital in any state; (9) unresolved final federal Medicare or state Medicaid audit exceptions; or (10) injunctive orders from any court. (d) Ownership and management information required. (1) Each applicant for a hospital license shall disclose to the department the name and business address of: (A) each limited partner and general partner if the applicant is a partnership; and (B) each director and officer if the applicant is a corporation. (2) If the applicant has held or holds a hospital license or has been or is an affiliate of another licensed hospital, the applicant shall disclose to the department the relationship, including the name and current or last address of the other hospital and the date such relationship commenced and, if applicable, the date it was terminated. (3) If the applicant is a subsidiary of another organization, the information shall include the names and addresses of the parent organization and the names and addresses of the officers and directors of the parent organization. (4) If the hospital is operated by or proposed to be operated under a management contract, the names and addresses of any person and organization having an ownership interest of 10% or more in the management company shall be disclosed to the department. (e) Exemptions. The provisions of subsections (c) and (d) of this section shall not apply to an applicant who is a bank, trust company, financial institution, title insurer, escrow company, or underwriter title company to which a license will be issued in a fiduciary capacity except for provisions that require disclosure relating to the manager of the hospital. (f) Department review and processing. Upon receipt of the application material, a review will be conducted to determine whether it is complete. The time periods for processing an application shall be in accordance with sec.134. 13 of this title (relating to Time Periods for Processing and Issuing Licenses) . (g) Prerequisites to issuance of initial license. Prior to the department's issuance of an initial license, the following shall be completed. (1) The department must have reviewed and approved preliminary and final architectural plans and specifications in accordance with sec.134.51 of this title (relating to Construction Plans, Specifications, and Inspections). (2) The department must have conducted necessary preliminary inspections and a final construction inspection to determine that the hospital is constructed in accordance with this chapter. (3) The department must have received all plan review and construction inspection fees. (4) The department must have received a copy of the approval for occupancy issued by the city building inspector. (5) The department must have received a complete, accurate, and notarized affidavit for final construction approval. (6) The applicant must have attended a presurvey conference. (h) Issuance of initial license. When the applicant has submitted the information described in subsections (b)-(d) and (g) of this section, the department shall issue the initial license effective the date the hospital is determined to be in compliance with this chapter. (1) The department shall mail the initial license to the licensee. (2) The effective date of the initial license shall not be prior to the date of the final construction inspection conducted by the department. (3) The initial license is valid for six months from the date of issuance and is not renewable. (4) The admission of patients for hospital services shall not commence until the hospital has been issued an initial license. (i) Posting of a license. The hospital shall post the initial license in a conspicuous place in the licensed premises. (j) Continued compliance required. Continuing compliance with the minimum standards and the provisions of this chapter is required during the licensing period. Failure of the hospital to not substantially comply may result in the department's proposed action in accordance with sec.134.73 of this title (relating to Disciplinary Action). (k) Withdrawal of an application. If an applicant decides not to continue the application process for an initial license, first annual license or renewal of an annual license, the application may be withdrawn. If an initial, first annual license or renewal license has been issued, the applicant shall return the initial, first annual license or renewal license to the department with its written request to withdraw. The department shall acknowledge receipt of the request to withdraw. (l) Denial of license. Denial of a license shall be governed by sec.134.73 of this title. (m) Initial license procedures for a crisis stabilization unit. The application and issuance of an initial license for a crisis stabilization unit shall comply with Chapter 401, Subchapter K of this title (relating to Rules Governing Licensure of Crisis Stabilization Units). sec.134.12. Issuance and Renewal of Annual License. (a) A hospital's first annual license shall be issued to a hospital which meets the minimum standards for a license contained in this chapter as determined after a health inspection to assess compliance with the provisions of this chapter relating to patient health, safety, and rights, or through the hospital's successful completion of an on-site inspection conducted after issuance of the initial license to determine compliance with the Medicare Conditions of Participation for Hospitals. (1) A hospital must have admitted and be providing services to at least one patient in the hospital at the time of the health inspection. (2) A health inspection of a hospital to assess compliance with the provisions of this chapter relating to patient health, safety, and rights shall only be required and conducted if a certification survey to determine compliance with the Medicare Conditions of Participation for Hospitals does not occur after the issuance of the initial license. (b) The department will issue a first annual license which supersedes the six- month initial license and shall expire one year from the date of issuance of the initial license. (1) If the initial license was issued effective the first day of a month, the first annual license expires on the last day of the month preceding the issuance month (e.g. if a temporary initial license is effective September 1, the first annual license expires on August 31 of the next year and every year thereafter unless a change of ownership occurs). (2) If the initial license was issued effective the second or any subsequent day of a month, the first annual license expires on the last day of the month of issuance of the next year (e.g. if the temporary initial license is effective September 2, the first annual license expires on September 30 of the next year and every year thereafter unless a change of ownership occurs). (c) The department will send notice of expiration to a hospital at least 60 days before the expiration date of an annual license. If the hospital has not received notice of expiration from the department within 45 days prior to the expiration date, it is the duty of the hospital to notify the department and request a renewal application for a license. If the hospital fails to submit the application and fee within 15 days prior to the expiration date of the license, the department shall send by certified notice to the hospital a letter advising unless the license is renewed, the hospital must cease operation upon the expiration date of the hospital's license. (d) The department shall issue a renewal license to a hospital which meets the minimum standards for a license, and who submits the following to the department postmarked no later than 30 days prior to the expiration date of the license: (1) a completed and accurate renewal application form; (2) a copy of an approved fire safety inspection report from the local fire authority in whose jurisdiction the hospital is based that is dated no earlier than one year prior to the application date; (3) the license fee; (4) if the applicant is a corporation, a current letter from the state comptroller's office stating the corporation is in good standing or a notarized certification on the license application form that the tax owed to the state under the Tax Code, Texas Codes Annotated, Chapter 171, is not delinquent, or that the corporation is exempt from the payment of the tax and is not subject to the Tax Code, Texas Codes Annotated, Chapter 171; (5) if the hospital applicant is accredited by the Joint Commission on Accreditation of Healthcare Organizations or the American Osteopathic Association, a copy of documentation from the accrediting body showing that the hospital is currently accredited; (6) any changes to the information relating to the disclosure, ownership, and management requirements in sec.134.11(c) and (d) of this title (relating to Application and Issuance of Initial License for First-Time Applicants). The information provided shall address all changes during the most recent annual license period; and (7) a notarized affidavit signed by the hospital administration attesting to the applicant's ability to comply with the licensing rules governing hospitals. (e) A hospital annual license shall be posted in a conspicuous place on the licensed premise. (f) The department may conduct an on-site inspection during the hospital's licensure period. (g) If a hospital fails to submit the application and fee by the expiration date of the hospital's license, the department shall notify the hospital that it must cease operation and immediately return the license by certified or registered mail to the department. If the hospital wishes to provide services after the expiration date of the license, it must apply for an initial license under sec.134.11 of this title. (h) The application and issuance of a renewal license for a crisis stabilization unit shall comply with Chapter 401, Subchapter K of this title (relating to Rules Governing Licensure of Crisis Stabilization Units). sec.134.13. Time Periods for Processing and Issuing Licenses. (a) General. (1) The date an application for an initial license and first annual license, renewal license, or change of ownership is received is the date the application reaches the Texas Department of Health (department). (2) An application for an initial license is complete when the department has received, reviewed, and found acceptable the information described in sec.134.11(b)-(d) and (f) of this title (relating to Application and Issuance of an Initial License for First-Time Applicants). (3) An application for a renewal license is complete when the department has received, reviewed, and found acceptable the information described in sec.134.12(d) of this title (relating to Issuance of Renewal of Annual License). (4) An application for change of ownership is complete when the department has received, reviewed, and found acceptable the information described in sec.134. 14 of this title (relating to Change of Ownership or Services). (b) Time periods. An application from a hospital for a license shall be processed in accordance with the following time periods. (1) The first time period begins on the date the application is received. The first time period ends on the date the hospital license is issued, or, if the application is received incomplete, the period ends on the date the hospital is issued a written notice that the application is incomplete. The written notice shall describe the specific information that is required before the application is considered complete. The time period is 20 days for each of the following categories: application for an initial and first annual hospital license; application for change of ownership; and application for renewal of annual license. (2) The second time period begins on the date the last item necessary to complete the application is received and ends on the date the hospital license is issued. The time period is 20 days for each of the following categories: application for initial and first annual hospital licenses; application for change of ownership; and application for renewal of annual license. (3) Time periods for processing and issuing licenses for a crisis stabilization unit shall comply with Chapter 401, Subchapter K of this title (relating to Rules Governing Licensure of Crisis Stabilization Units). (c) Reimbursement of fees. (1) In the event the application is not processed in the time periods as stated in subsection (b) of this section, the applicant has the right to request the department reimburse in full all filing fees paid in that particular application process. If the department does not agree that the established periods have been violated or finds that good cause existed for exceeding the established periods, the request will be denied. (2) Good cause for exceeding the period established is considered to exist if: (A) the number of applications for licenses to be processed exceeds by 15% or more the number processed in the same calendar quarter the preceding year; (B) another public or private entity utilized in the application process caused the delay; or (C) other conditions existed giving good cause for exceeding the established periods. (d) Appeal. If the request for full reimbursement authorized by subsection (c) of this section is denied, the applicant may then appeal to the commissioner of health for a resolution of the dispute. The applicant shall give written notice to the commissioner requesting full reimbursement of all filing fees paid because his application was not processed within the adopted time period. The division shall submit a written report of the facts related to the processing of the application and good cause for exceeding the established time periods. The commissioner will make the final decision and provide written notification of the decision to the applicant and the division. (e) Contested case hearing. If at any time during the processing of the application during the second time period, a contested case hearing becomes involved, the time periods in sec.1.34 of this title (relating to Time Periods for Conducting Contested Case Hearing) are applicable. sec.134.14. Change of Ownership or Services. (a) No license may be transferred or assigned. (1) A change of ownership of a hospital occurs when the name of the licensed person as reflected on the original application will be changed. (2) A person who desires to receive a license in its name for a hospital currently licensed under the name of another person or to change the ownership of any hospital must submit a license application 60 days prior to the desired date of change of licensure. The application shall be in accordance with sec.134.11 of this title (relating to the Application and Issuance of Initial License for First-Time Applicants) and shall include the effective date of the new ownership. (3) The on-site construction and health inspections required by sec.134.11 of this title and sec.134.12 of this title to (relating to Issuance and Renewal of Annual License) may be waived by the department. (4) When the person has complied with the provisions of sec.134.11 of this title, the department shall issue an initial license which shall be effective the date of the change of ownership unless the department waives the inspections in accordance with paragraph (3) of this subsection. If the inspections are waived, the department shall issue a first annual license, in lieu of the initial license, effective the date of the change of ownership. (5) The previous owner's license shall be void on the effective date of the new initial license or first annual license and must be surrendered to the Texas Department of Health (department). (6) If a corporate licensee amends its articles of incorporation to revise its name, this subsection does not apply, except that the corporation must notify the department within five business days after the effective date of the name change. (7) The sale of stock of a corporate licensee does not cause this subsection to apply. (8) The provisions of this subsection are in addition to any applicable federal law or regulations relating to change of ownership or control. (b) A hospital must notify the department in writing of any change in the hospital's main telephone number within a reasonable period of time. (c) A hospital shall notify the department in writing prior to the occurrence of any of the following: (1) addition or deletion of services provided; (2) addition or deletion of beds; (3) request to change license classification; (4) cessation of operation of the hospital. The initial, first annual, or renewal license shall be mailed or returned to the department at the end of the day hospital services were terminated; (5) any change in certification or accreditation status; and (6) construction, renovation or modification of the hospital buildings. (d) Addition of beds must be approved by the department prior to patient occupation. (e) Change of ownership or services for a crisis stabilization unit shall comply with Chapter 401, Subchapter K of this title (relating to Rules Governing Licensure of Crisis Stabilization Units). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 6, 1994. TRD-9438704 Susan K. Steeg General Counsel Texas Department of Health Effective date: May 2, 1994 Proposal publication date: November 2, 1993 For further information, please call: (512) 834-6645 Subchapter C. Operational Requirements 25 TAC sec.sec.134.21-134.23 The new sections are adopted under the Health and Safety Code, Chapter 577, which provides the Texas Board of Health (board) with authority to adopt rules to establish and enforce minimum standards for the licensing of psychiatric hospitals and crisis stabilization units; 161, 164, 311, 313, 321 relating to abuse, neglect and unprofessional or unethical conduct in health care facilities; treatment facilities marketing and admission practices; health care facility surveys, and provision of mental health, chemical dependency and rehabilitation services; construction, inspection, and regulation; powers and duties of hospitals; cooperative agreements; and sec.12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health. sec.134.21. Licensure Requirements and Standards for Hospitals and Crisis Stabilization Units. (a) A license shall not be materially altered. (b) A hospital or crisis stabilization unit shall meet the requirements set forth by the department in sec.sec.1.131-1.137 of this title (relating to Definition, Treatment and Disposition of Special Waste from Health Care Related Facilities) and 31 TAC sec.330.1004 (relating to Generators of Medical Waste). (c) A hospital or crisis stabilization unit shall adopt, implement, and enforce a written policy to monitor compliance of the hospital or crisis stabilization unit and its personnel and medical staff with universal precautions in accordance with the Health and Safety Code, Chapter 85, Subchapter I (relating to the Prevention of HIV and Hepatitis B Virus by Infected Health Care Workers). (d) The hospital or crisis stabilization unit shall comply with the Nursing Practice Act, Texas Civil Statutes, Articles 4525a and 4525b (relating to Professional Nurse Reporting and Peer Review). (e) A hospital or crisis stabilization unit that provides laboratory services shall comply with the requirements of Federal Public Law 100-578, Clinical Laboratory Improvement Amendments of 1988 (CLIA 1988). CLIA 1988 applies to all hospitals and crisis stabilization units with laboratories that examine human specimens for the diagnosis, prevention, or treatment of any disease or impairment of, or the assessment of the health of, human beings. (f) A hospital or crisis stabilization unit shall adopt, implement, and enforce a written policy for publicly known natural disaster preparedness for the reception, treatment and disposition of casualties from a single catastrophe. The written policy shall be developed through a joint effort of the hospital or crisis stabilization unit governing body, administration, medical staff, and hospital or crisis stabilization unit personnel. The written policy shall include a plan for the reasonable mechanism for triaging patients, the notification of appropriate personnel and patients in the event of a disaster, the identification of appropriate community resources and the identification of possible evacuation procedures. The written policy shall include the applicable information contained in the National Fire Protection Association's (NFPA) 1990 edition of NFPA 99, Annex 1, Health Care Emergency Preparedness as published in the NFPA's 1991 National Fire Codes. (g) A hospital or crisis stabilization unit shall not violate the Health and Safety Code, sec.161.091, et seq relating to illegal remuneration. (h) A hospital or crisis stabilization unit shall comply with the Health and Safety Code, sec.311.002, relating to itemized statements of billed services. (i) Protection from descrimination or retaliation. (1) Each hospital or crisis stabilization unit shall prominently and conspicuously post for display in a public area of the hospital or crisis stabilization unit that is readily available to patients, residents, employees, and visitors a statement that employees and staff are protected from discrimination or retaliation for reporting a violation of law. The statement must be in English and in a second language appropriate to the demographic makeup of the community served. (2) Each hospital or shall prominently and conspicuously post for display in a public area of the hospital or crisis stabilization unit that is readily available to patients, residents, employees, and visitors a statement that nonemployees are protected from discrimination or retaliation for reporting a violation of law. The statement must be in English and in a second language appropriate to the demographic makeup of the community served. The sign may be combined with the sign required by paragraph (1) of this subsection. (3) A hospital or crisis stabilization unit may not suspend or terminate the employment of or discipline or otherwise discriminate against an employee for reporting to the employee's supervisor, an administrator of the hospital, a state regulatory agency, or a law enforcement agency a violation of law, including a violation of the Private Mental Hospital and other Mental Health Facility Licensing Law, the Health and Safety Code, Chapter 577 (Act), or this chapter. (4) A hospital or crisis stabilization unit may not retaliate against a person who is not an employee for reporting a violation of law, including a violation of the Act or this chapter. (j) Reporting of abuse and neglect or of illegal, unprofessional, or unethical conduct. A hospital or crisis stabilization unit providing mental health, or chemical dependency services shall prominently and conspicuously post for display in a public area of the hospital or crisis stabilization unit that is readily available to patients, residents, volunteers, employees, and visitors a statement of the duty to report abuse and neglect, or of illegal, unprofessional, or unethical conduct. The statement must be in English and in a second language appropriate to the demographic makeup of the community served and contain the number of the Texas Department of Health (department) hospital patient information and complaint line at 1-800-228-1570. (1) A person, including an employee, volunteer, or other person associated with a hospital or crisis stabilization unit that provides mental health or chemical dependency services who reasonably believes or who knows of information that would reasonably cause a person to believe that the physical or mental health or welfare of a patient of the hospital or crisis stabilization unit who is receiving mental health or chemical dependency services has been, is, or will be adversely affected by abuse or neglect by any person shall as soon as possible report the information supporting the belief to the department or the appropriate state health care regulatory agency. (2) An employee of or other persons associated with a hospital or crisis stabilization unit that provides mental health or chemical dependency services, including a health care professional, who reasonably believes or who knows of information that would reasonably cause a person to believe that the hospital or crisis stabilization unit or an employee of or health care professional associated with the hospital or crisis stabilization unit, has, is, or will be engaged in conduct that is or might be illegal, unprofessional or unethical and that relates to the operation of the hospital or crisis stabilization unit or mental health or chemical dependency services provided in the hospital or crisis stabilization unit shall as soon as possible report the information supporting the belief to the department or to the appropriate state health care regulatory agency. (3) A complaint may include physical or verbal abuse or sexual exploitation. (4) The requirement prescribed by this section is in addition to the requirements provided by the Family Code, Chapter 34, and the Human Resources Code, Chapter 48. (k) Investigation of reports of abuse and neglect, or of illegal, unprofessional, or unethical conduct. (1) A complaint made under subsection (j) of this section may be submitted in writing or verbally to the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3199, 1-800-228-1570. (2) A complaint containing allegations which are a violation of the Act or this chapter will be investigated by the department. (3) A complaint containing allegations which are not a violation of the Act or this chapter will not be investigated by the department but shall be referred to the appropriate law enforcement agencies or other agencies, as appropriate. (4) The department shall inform in writing a complainant who identifies himself by name and address of: (A) the receipt of the complaint; (B) if the complainant's allegations are a potential violation of the Act or this chapter warranting an investigation; (C) whether the complaint will be investigated by the department; (D) whether and to whom the complaint will be referred; and (E) the findings of the complaint investigation. (5) The department shall request a report from each referral agency of the action taken by the agency on a quarterly basis. (6) A health care professional who fails to report shall be referred by the department to the individual's licensing board for appropriate disciplinary action. (l) Treatment Methods Advisory Committee. The department shall report or forward a copy of a complaint relating to an abusive treatment method to the Treatment Methods Advisory Committee with the Texas Department of Mental Health and Mental Retardation. (m) Memorandum of understanding on inservice training. (1) The Texas Board of Mental Health and Mental Retardation, Texas Board of Health, and Texas Commission on Alcohol and Drug Abuse shall adopt a joint memorandum of understanding that requires each inpatient mental health facility, chemical dependency treatment facility, or hospital that provides mental health or chemical dependency services to annually provide as a condition of continued licensure a minimum of eight hours of inservice training designed to assist employees and health care professionals associated with the facility in identifying patient abuse and neglect, or of illegal, unprofessional, or unethical conduct by or in the facility. (2) A hospital or crisis stabilization unit providing any of these services shall comply with the memorandum of understanding as specified in sec.401.57 of this title (relating to Training Requirements for Identifying Abuse, Neglect, and Unprofessional or Unethical Conduct in Health Care Facilities). sec.134.22. Standards for the Provision of Mental Health Services In Hospitals and Crisis Stabilization Units. (a) Admission criteria. A hospital or crisis stabilization unit providing mental health services must have written admission criteria that are applied uniformly to all patients. (1) The hospital admission criteria shall include procedures to prevent the admission of minors for a condition which is not generally recognized as responsive to treatment in an inpatient setting for mental health services. A minor may be qualified for admission based on other disabilities which would be responsive to mental health services. The following are not generally recognized as responsive to treatment in a hospital or crisis stabilization unit unless the minor to be admitted is qualified because of other disabilities: (A) persons with cognitive disabilities due to mental retardation; or (B) learning disabilities. (2) The hospital or crisis stabilization unit must have a preadmission examination procedure under which each patient's condition and medical history are reviewed by a qualified physician to determine whether the patient is likely to benefit significantly from an intensive inpatient program or assessment. (b) Compliance. (1) A hospital shall comply with the following rules adopted by the Texas Mental Health and Mental Retardation Board (TXMHMR): (A) Chapter 401, Subchapter J of this title (relating to Standards of Care and Treatment in Psychiatric Hospitals) effective February 10, 1994; (B) Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services) effective December 10, 1993, shall prominently and conspicuously post a copy of the patient's bill of rights for display in a public area of the hospital that is readily available to patients, residents, employees, and visitors, in English and in a second language appropriate to the demographic makeup of the community served; (C) Chapter 405, Subchapter E of this title (relating to Electroconvulsive Therapy) effective December 10, 1993; (D) Chapter 405, Subchapter FF of this title (relating to Consent to Treatment with Psychoactive Medication) effective October 1, 1993. This subchapter applies in cases in which a patient is committed to care that is funded by the state; and (E) Chapter 405, Subchapter F of this title (relating to Restraint and Seclusion in Mental Health Facilities) effective August 20, 1984. (2) A crisis stabilization unit providing mental health services shall comply with Chapter 401, Subchapter K of this title (relating to Rules Governing Licensure of Crisis Stabilization Units). sec.134.23. Standards for the Provision of Chemical Dependency Services in Hospitals and Crisis Stabilization Units. (a) Admission criteria. A hospital or crisis stabilization unit providing chemical dependency services must have written admission criteria that are applied uniformly to all patients. (1) The hospital or crisis stabilization unit's admission criteria shall include procedures to prevent the admission of minors for a condition which is not generally recognized as responsive to treatment in an inpatient setting for chemical dependency services. A minor may be qualified for admission based on other disabilities which would be responsive to chemical dependency services. The following are not generally recognized as responsive to treatment in a treatment facility for chemical dependency unless the minor to be admitted is qualified because of other disabilities: (A) persons with cognitive disabilities due to mental retardation; (B) learning disabilities; or (C) psychiatric disorders. (2) The hospital or crisis stabilization unit must have a preadmission examination procedure under which each patient's condition and medical history are reviewed by a qualified physician to determine whether the patient is likely to benefit significantly from an intensive inpatient program or assessment. (b) Compliance. (1) A hospital or crisis stabilization unit providing chemical dependency services shall comply with 40 Texas Administrative Code (TAC) sec.sec.151.11- 151.111 (relating to Licensure) adopted by the Texas Commission on Alcohol and Drug Abuse effective May 22, 1993, under the Health and Safety Code, Title 6, Subtitle B, Chapter 464, and the rules to be adopted by TCADA relating to the following: (A) patient's bill of rights; (B) marketing, admission, and referral services; and (C) standards of care for chemical dependency. (2) A crisis stabilization unit providing chemical dependency services shall comply with Chapter 401, Subchapter K of this title (relating to Rules Governing Licensure of Crisis Stabilization Units). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 6, 1994. TRD-9438705 Susan K. Steeg General Counsel Texas Department of Health Effective date: May 2, 1994 Proposal publication date: November 2, 1993 For further information, please call: (512) 834-6645 Subchapter D. Physical Plant and Life Safety Code 25 TAC sec.sec.134.51-134.54 The new sections are adopted under the Health and Safety Code, Chapter 577, which provides the Texas Board of Health (board) with authority to adopt rules to establish and enforce minimum standards for the licensing of psychiatric hospitals and crisis stabilization units; Chapters 161, 164, 311, 313, and 321, relating to abuse, neglect and unprofessional or unethical conduct in health care facilities; treatment facilities marketing and admission practices; health care facility surveys, and provision of mental health, chemical dependency and rehabilitation services; construction, inspection, and regulation; powers and duties of hospitals; cooperative agreements; and sec.12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health. sec.134.51. Construction Plans, Specifications, and Inspections. (a) Submission of plans and specifications. Before construction is begun, plans and specifications covering the construction of new buildings or alterations, additions, conversions modernizations or renovations to existing buildings, shall be submitted to the Texas Department of Health (department) for review and approval. These plans and specifications must be accompanied by an Application for Plan Review, the appropriate plan review fee in accordance with sec.134.3(c) of this title (relating to Fees). (1) The submission of plans and specifications shall be made in preliminary and final stages. (2) Preliminary (stage one) plans shall be submitted in accordance with subsection (b)(1) of this section. (3) All deficiencies noted in the preliminary (stage one) plan review shall be satisfactorily resolved prior to proceeding into final plans and specifications (stage two). This paragraph also applies to a fast-track project. Final (stage two) plans shall be submitted in accordance with subsection (b)(2) of this section. (4) The final working plans and specifications shall be submitted to the department for review and approval prior to construction. Any contract modifications which affect or change the function, design, or designated use of an area shall be submitted to the department for approval prior to authorization of the modifications. (5) Minor alterations or remodeling changes which do not involve alterations to load-bearing members or partitions; change functional operation; affect fire safety; and add beds or services over those for which the hospital is licensed shall be requested in writing with a brief description of the proposed changes for approval to the department. (6) No system of mechanical, electrical, plumbing, fire protection, or medical gases shall be installed, or any such existing system materially altered or extended until complete plans and specifications for the installation, alteration, or extension have been submitted to the department for review and approval in accordance with this section. (7) The final approval letter from the Texas Department of Licensing and Regulation (TDLR) for project plans and specifications shall be submitted to the department. (b) Preparation of plans and specifications. (1) Stage one. One complete set of the preliminary plans and outline specifications shall be submitted and contain sufficient information to establish the scope of project; project location; required fire safety and exiting criteria; building construction type; compartmentation showing fire and smoke barriers; bed count and services; and the assignment of all spaces, areas and rooms for each floor level including the basement. (A) The plans shall be drawn at a scale sufficiently large to clearly present the proposed design. (B) The total floor area and proposed bed distribution shall be computed and shown on the drawings. (C) Each floor plan shall indicate the type and location of all rated partitions, fire and smoke compartments, and means of egress. (D) An existing floor plan showing existing spaces and exits and their relationship to the new construction shall be submitted on all renovation or additions to an existing facility. (E) A building section(s) shall be required to establish construction type and fire rating. Section(s) shall be drawn at a scale sufficiently large to clearly present the proposed construction system. (F) A site plan shall be submitted and shall indicate the location of the building(s) in relation to property lines, existing buildings or structures, access and approach roads, and parking areas and drives. Any overhead or underground utilities or service lines and building structures or other conditions which may impair or adversely affect the construction shall be indicated. (G) Outline specifications shall provide a general description of the construction, materials and finishes that are not shown on the drawings. (2) Stage two. One complete set of final drawings and specifications shall be submitted. All working drawings shall be well prepared so that clear and distinct prints may be obtained, accurately dimensioned, and shall include all necessary explanatory notes, schedules and legends. Final drawings shall be complete and adequate for contract purposes. All final plans and specifications shall be appropriately sealed and signed by a registered architect and professional engineer licensed by the State of Texas. Separate drawings shall be prepared for each of the following branches of work. (A) Architectural drawings shall include the following: (i) site plan showing all new topography, newly established levels and grades, existing structure on the site (if any), new buildings and structures, roadways, walks, and the extent of the areas to be landscaped. All structures and improvements which are to be removed under the construction contract shall be shown; (ii) plan of each floor and roof to include fire and smoke separation and means of egress; (iii) schedules of doors, windows and finishes; (iv) elevations of each facade; (v) sections through building; and (vi) scaled details as necessary. (B) Equipment drawings shall include the following: (i) all equipment necessary for the operation of the hospital as planned. The design shall indicate provisions for the installation of large and special items of equipment, and for service accessibility; (ii) fixed equipment (equipment which is permanently affixed to the building or which must be permanently connected to a service distribution system designed and installed during construction for the specific use of the equipment). The term "fixed equipment" includes items such as laundry extractors, walk-in refrigerators, communication systems, and built-in casework (cabinets); (iii) movable equipment (equipment not described in clause (ii) of this subparagraph as fixed). The term "movable equipment" includes wheeled equipment, plug-in type monitoring equipment, and relocatable items such as operating tables and obstetrical tables; and (iv) equipment which is not included in the construction contract but which requires mechanical or electrical service connections or construction modifications. The equipment described in this clause shall be identified on the drawings to assure its coordination with the architectural, mechanical, and electrical phases of construction. (C) Structural drawings shall include plans for foundations, floors, roofs and all intermediate levels and shall show a complete design with sizes, sections, and the relative location of the various members. Schedule of beams, girders, and columns shall be provided. Floor levels, column centers, and offsets shall be dimensioned. Special openings and pipe sleeves shall be dimensioned or otherwise noted for easy reference. Details of all special connections, assemblies, and expansion joints shall be given. (D) Mechanical drawings with specifications shall show the complete heating, steam piping and ventilation systems; plumbing, drainage and standpipe systems. Drawings shall include identification of all spaces, volume of air provided these spaces, fire and smoke partitions, and location of all dampers, registers, and grilles. (E) Electrical drawings shall include the location of the following: (i) all electrical wirings, outlets, and equipment which require electrical connections; (ii) electrical service entrances with service switches, service feeders to the public service feeders and characteristics of the light and power current. Transformers and their connections, if located in the building; (iii) plan and diagram showing main switchboard, power panels, light panels, and equipment. Feeder and conduit sizes shall be shown with schedule of feeder breakers or switches; (iv) telephone and communication, fixed computers, terminals, connections, outlets, and equipment; (v) nurse call system showing all stations, signals, and annunciators on the plans and one-line diagram of the complete system; (vi) fire alarm system showing all system components and fire zones on the plans and the one-line diagram of the complete system; and (vii) a one-line diagram showing the complete electrical distribution system including the main switchgear, transfer switches, emergency generator(s), panels, subpanels, transformers, conduit and wire sizes. (c) Special submittals. (1) Fast-track projects. Fast-track projects must have prior approval by the department and shall be submitted in a maximum of four separate packages as follows: (A) site work, foundation, structural, underslab mechanical, electrical, and plumbing work, and related specifications; (B) complete architectural plans and specifications; (C) all mechanical, electrical and plumbing plans and specifications; and (D) equipment and furnishings. (2) Automatic sprinkler systems. A minimum of one set of sprinkler system shop drawings, specifications and calculations, prepared by the licensed installer, shall be submitted to the department for review and approval prior to installation of the proposed system in the project. (3) Radiation protection. Prior to the installation of radiology equipment relating to a project a hospital shall include in the project submission one set of plans, specifications, and shielding criteria, prepared by a qualified expert in the field of radiation protection. (d) Construction and inspections. (1) Construction, of other than minor alterations, shall not be commenced until stage-two plan review deficiencies have been satisfactorily resolved, the appropriate plan review fee according to the plan review schedule in sec.134.3 of this title (relating to Fees) has been paid, and the department has issued a letter granting approval to begin construction. Such authorization does not constitute release from the requirements contained in this chapter. (2) Written notification shall be given to the department when construction is commenced. If the construction takes place in or near occupied areas, adequate provision shall be made for the safety and comfort of patients. (3) After construction has commenced, progress reports shall be submitted by the hospital as required by the department to monitor the construction work. (4) Construction shall be completed in compliance with the final drawings and specifications including all addenda or modifications approved for the project. (5) The department shall determine the number of required inspections necessary to complete all proposed construction projects. All hospitals including those which maintain certification under Title XVIII of Social Security Act (42 United States Code, sec.1395 et seq) and those which maintain accreditation by the Joint Commission on Accreditation of Healthcare Organizations or by the American Osteopathic Association are subject to construction inspections as a new hospital or an existing hospital. (6) A minimum of two construction inspections of the project in the hospital will be scheduled for the purpose of verifying compliance with this chapter and the approved plans and specifications. (A) The intermediate construction inspection will be scheduled at approximately 80% completion. (B) The final construction inspection will be scheduled at 100% completion when the project is ready to be occupied. (7) A facility shall not occupy any new structure or alteration, addition, conversion, modernization, or renovation space until the appropriate approval has been received from the local building and fire authorities and the department. (8) A construction project shall commence within one year of the construction approval date. A project not meeting this requirement shall be resubmitted for approval. (e) Compliance. Construction plans, specifications and inspections of crisis stabilization units shall comply Chapter 401, Subchapter K, of this title (relating to Rules Governing Licensure of Crisis Stabilization Units). sec.134.52 Construction and Building Requirements. (a) General. (1) The requirements described in this section constitute minimum requirements for construction and equipment for hospitals for which a license is required. These requirements are considered necessary to ensure properly planned and well- constructed hospitals which can be efficiently maintained and operated to furnish adequate services. (2) This section may be exceeded to assure a hospital to function as programmed. A hospital shall consult and comply with other state and local codes and standards. (3) A hospital must provide a physical environment that protects the health and safety of patients, personnel, and the public. The physical premises of the hospital and those areas of the hospital's surrounding physical structure that are used by the patients (including all stairwells, corridors, and passageways) must meet local building and fire safety codes and this chapter. (4) A building may not be converted for use as a hospital which, because of its location, physical condition, state of repair, or arrangement of facilities, would be hazardous to the health and safety of the patients who would be housed in such a building. Prior to licensure by the department, a hospital must meet all requirements of this chapter for new construction. (5) The requirements found at 42 CFR, sec.482(b)(1)(i) are hereby adopted by reference as the fire safety requirements for all hospitals which have been vacated or used for an occupancy other than a hospital. These requirements are that the hospitals must meet the applicable provisions of the 1991 edition of the National Fire Protection Association's Life Safety Code (NFPA 101), unless such hospitals are in compliance and continue to remain in compliance with that edition of the NFPA 101 (1967, 1981, or 1985) that was in effect when the hospital was constructed, modified, or expanded. (6) Nothing in this subsection shall be construed to prohibit a better type of building construction, more exits, or otherwise safer conditions than the minimum requirements specified in this subsection. (7) Nothing in this subsection is intended to prevent the use of systems, methods, or devices of equivalent or superior quality, strength, fire resistance, effectiveness, durability, and safety to those prescribed by this subsection, providing technical documentation is submitted to the department to demonstrate equivalency and the system, method, or device is approved for the intended purpose. (8) The specific requirements of this subchapter for existing buildings may be modified by the department to allow alternate arrangements that will secure as nearly equivalent safety to life from fire as practical, but in no case shall the modification afford less safety to life than compliance with the corresponding provisions contained in this subchapter for existing buildings. (9) Neither these rules nor the other state and local codes and standards mentioned above are intended in any way to restrict innovations and improvements in design or construction techniques. Plans and specifications which contain deviations from the requirements prescribed may be approved if it is determined that the minimum requirements of this chapter are met. (10) Certain projects may be subject to other regulations, including those of state, local, and federal authorities. (A) Verification of compliance with other regulations, when applicable, is required. (B) In addition to this chapter, a project submitted by a hospital accredited by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) or the American Osteopathic Organization (AOA) is also subject to standards contained in the JCAHO Accreditation Manual for Hospitals. (C) In addition to this chapter, a project submitted by a hospital certified under Title XVIII, Social Security Act, is also subject to the applicable requirements contained in the Medicare Conditions of Participation for Hospitals, sec. sec.482.2-482.62. (D) The more stringent standard or requirement shall apply when a difference in program requirements for construction exists. (11) All new construction or additions to hospitals shall be constructed and comply with Chapter 12, New Health Care Occupancies, NFPA 101, 1991 edition. (12) All new hospitals shall be constructed and comply with Chapter 12, New Health Care Occupancies, NFPA 101, 1991 edition. (13) An existing building may be converted to a hospital if the construction complies with Chapter 12, New Health Care Occupancies, NFPA 101, 1991 edition. (14) Existing hospital buildings may be modernized or renovated for mental health services; however, no construction shall diminish the fire safety features of the hospital currently in effect. (A) When an existing hospital is modernized or renovated, that portion of the total hospital affected by the work shall comply with provisions of Chapter 12, New Health Care Occupancies, NFPA 101, 1991 edition. (B) An existing hospital shall maintain the level of fire safety required under the NFPA code to which the facility was constructed. (C) An existing building which does not comply with all provisions of the LSC may be continued in service subject to approval of the authority having jurisdiction. Otherwise a limited but reasonable time shall be allowed for compliance with any part of the LSC for existing buildings, commensurate with the magnitude of expenditure, description of services, and degree of hazard. (15) Plans and specifications for buildings and facilities shall be submitted as required by sec.134.51 of this title (relating to Construction Plans, Specifications, and Inspections). (b) Design for the handicapped. (1) A hospital must be designed in accordance with 16 TAC Chapter 68 (relating to Elimination of Architectural Barriers) administered by the Texas Department of Licensing and Regulation (TDLR), special design features for the handicapped shall be provided for all buildings. (A) These special considerations are intended for the benefit of handicapped staff and visitors, as well as patients. (B) All provisions for handicapped persons shall be in accordance with Standards and Specifications and other applicable regulations published by the TDLR. (C) The building owner and/or appointed designee shall comply with the TDLR instructions, rules, and regulations for the plan and specification review process and shall be responsible for completing the necessary forms and for obtaining final approval from TDLR (2) A hospital shall meet applicable requirements of the federal Rehabilitation Act of 1973, sec.504, which requires program accessibility as well as facility accessibility. When federal funds are used for construction, for program requirements, or for client services, the handicapped requirements of sec.504 will apply. In such cases, all facilities constructed after June 3, 1977, must be designed and constructed to conform with the American National Standards Institute (ANSI) A. 117.1 requirements for handicapped individuals or some other standard which clearly provides equivalent access to the facility. The Office of Civil Rights enforces the ANSI standards, pursuant to 45 Code of Federal Regulations, sec.sec.84.22 and 84.23. (3) A hospital shall comply with the Department of Health and Human Services, Office of Civil Rights, Requirements for Program Accessibility and Facility Accessibility, as required by the Americans with Disabilities Act (ADA), Public Law 101 - 336: 42 United States Code, sec.120101. (c) Special design considerations for energy conservation. In the implementation of energy conservation initiatives, and as a part of an overall energy conservation plan, each applicant is required to give consideration to the selection of building and system components for effective utilization of energy in the operation of the facility. The sponsor shall use American Society of Heating, Refrigerating, and Air-Conditioning (ASHRAE) Standard 90A-1989, Energy Conservation in New Building Design, or equivalent criteria to improve the utilization of energy in new building design, insofar as these energy conservation measures do not conflict with the rules. Energy conservation measures shall also be applied, insofar as practicable, to projects involving alterations of and additions to existing buildings. For most projects, the adoption of effective energy conservation measures will not substantially increase the construction costs but there may be cases where the initial costs may be higher while the overall life-cycle cost would be lower. (d) Site, location, and accessibility. (1) Accessibility. The site of a hospital shall be easily accessible to the community and to service vehicles, including fire protection apparatus. (2) Availability of transportation. A hospital shall be located with due regard to the accessibility by public transportation for patients, staff, and visitors, and availability of competent medical consultation. (3) Flood protection. Construction of a new hospital shall be avoided on designated flood plains. Where such construction is unavoidable, consultation with the local flood control agencies for the latest applicable regulations pertaining to flood protection measures shall be completed. (4) Hazardous conditions. A new hospital shall not be constructed over underground liquid butane, propane, or gas transmission lines; over underground high-pressure lines; under high-voltage electrical lines; or near hazardous or hazard producing chemical manufacturing plants. Consideration shall also be given during site selection to assure that the hospital is not constructed on or near a sanitary landfill site or near other undesirable locations. (e) Roads and parking. (1) Roads. Paved roads shall be provided within the lot lines to provide access to the main entrance, entrances serving community activities, and to service entrances, including loading and unloading docks for delivery trucks, and fire lanes shall be provided in accordance with local codes and ordinances. (2) Parking. Off-street parking shall be made available for visitors, employees, nursing staff, and medical staff as described in subsection (b) of this section. (f) Environmental pollution control. In accordance with state and local codes and standards, the site and project shall be developed to minimize adverse environmental effects on the neighborhood and community. The hospital shall consult the local environmental authority for the latest applicable regulations pertaining to environmental pollution such as noise, air, and traffic pollution. (g) Crisis stabilization. Construction and building requirements for crisis stabilization units shall comply with Chapter 401, Subchapter K of this title (relating to Rules Governing Licensure of Crisis Stabilization Units). sec.134.53. General Considerations. (a) Narrative program. (1) General. A hospital shall provide a narrative program, either general or detailed, of functions for the hospital. (A) The narrative program shall include the following: (i) a description of space requirements, staffing patterns, departmental relationships, and other basic information relating to the fulfillment of the hospital's objectives; and (ii) a description of each function to be performed, approximate space needed for these functions, number of staff or other occupants of the various spaces, types of equipment required, interrelationship of various functions and spaces. (B) The narrative program shall be submitted to the department at the preliminary plan (stage one) review. (C) The narrative program shall be approved by the department. (2) Services. (A) A hospital shall contain the services and spaces described in the narrative program or shall indicate the manner in which the required services and spaces are to be made available to the public as described by the narrative program. (B) Each service and space provided in the hospital shall comply with the requirements outlined in the narrative program; however, appropriate modifications or deletions in services or spaces may be made to the rules when services or spaces are shared or purchased. The shared or purchased service or space shall be outlined in the narrative program approved by the department. (3) Sizes. The sizes of the various departments will depend upon program requirements and organization of services within the facility. A function requiring a separate space or room as described in this section may be combined provided that the resulting plan will not compromise safety and psychiatric and nursing practices. (4) Provisions for handicapped. Facilities shall be available and accessible to the physically handicapped (public, staff, and patients) as described in sec.134.52(b)(3) of this title (relating to Construction and Building Requirements). (5) Parking. (A) A hospital shall have parking space to satisfy the minimum needs of patients, employees, medical staff, consultants, and visitors. (B) In the absence of a formal parking study, a minimum number of parking spaces shall be provided at the rate of not less than 1.5 parking spaces per bed. (C) The total of parking spaces may be reduced in an area convenient to a public transportation system or to public parking facilities, or where successful carpool or other arrangements to reduce traffic have been developed if proper justification is included in the narrative program and provided that the reduction is approved by the department. (D) Additional parking may be required to accommodate outpatient and other services when specified in the narrative program. (E) Sufficient parking space shall be provided for emergency and delivery vehicles. (F) Parking spaces required for handicapped persons shall be in the number prescribed by the standards and specifications published by the Texas Department of Licensing and Regulation described in sec.134.52(b) of this title. (b) Nursing units. A unit intended for psychiatric nursing care shall be designed to facilitate care of ambulatory and nonambulatory inpatients. As practical, provisions shall be made for flexibility in arranging various types of psychiatric therapy. (1) A nursing unit providing mental health services as part of a general hospital shall be reviewed by the department in accordance with the Hospital Licensing Standards, sec.7-7 (relating to Psychiatric and Chemical Dependency Units), adopted by reference in sec.133.21 of this title (relating to Standards- Adoption by Reference). (2) A nursing unit shall provide a safe environment for patients and staff. (A) The environment of the unit shall be characterized by a feeling of openness with emphasis on natural light and exterior views and with the organization of various functions accessible to common spaces while not jeopardizing desirable levels of patient privacy. (B) Interior finishes, lighting, and furnishings shall present an atmosphere which is as noninstitutional as possible, consistent with applicable fire safety requirements. Security and safety devices should not be present in a manner to attract or challenge tampering by patients. (3) A patient room shall meet the following requirements. (A) The maximum room capacity shall be four patients. (B) The minimum room areas exclusive of toilet rooms, closets, lockers, wardrobes, alcoves, or vestibules shall be 100 square feet in single-bed rooms and 80 square feet per bed in multi-bed rooms. The minimum room dimension shall be 10 feet. (C) Each patient sleeping room intended for occupancy of 24 hours or more shall have an outside window with operable section or outside door with light arranged and located so that it can be opened from the inside to permit the venting of combustion products and to permit an occupant to have direct access to fresh air in case of emergency. (D) In building housing for certain types of patients, detention rooms, or a security section, the hospital shall provide detention screens to confine or protect building inhabitants, when necessary. (i) Where operable windows require the use of tools or keys for operation, the tools or keys shall be located on the floor or area involved at a prominent location accessible to staff. (ii) The degree of security required and the amount of window opening required in order to inhibit tendency for suicide or escape shall be as determined and noted in the narrative program. (iii) Safety glazing or other appropriate security features shall be incorporated where glass fragments may create a hazard. (iv) Windows need not be operable in buildings designed with an approved engineered smoke control system and an automatic sprinkler system in accordance with NFPA 90A, "Standard for the Installation of Air-Conditioning and Ventilating Systems", 1989 edition, NFPA 13, "Standard for the Installation of Sprinkler Systems", 1989 edition, and other applicable standards. (E) A nurses' calling system is not required, unless otherwise noted. If a call system is included, provisions shall be made to permit removal of call buttons or use of blank plates as required for security. At all seclusion anterooms, a call system shall be provided. (F) Each patient shall have access to a toilet room without entering the general corridor area, except as noted in this subparagraph. (i) One toilet room shall serve no more than four beds and no more than two patient rooms. (ii) A toilet room shall contain a water closet and a lavatory. A tub and/or shower may be added to the toilet area as required by the narrative program. At least 10% of each type of patient bedrooms (private, semi-private) with toilet rooms shall be designed for use by handicapped persons. (G) Each patient shall have a wardrobe, locker, or closet that is suitable for hanging full-length garments. Within the wardrobe, locker, or closet there shall be ample space for storing and locking personal effects. New installations shall have a minimum 22 inches of linear hanging space. (H) Sleeping areas shall have doors for privacy. Design for visual privacy in multi-bed rooms shall not restrict patient access to the room, toilet, or observation by staff. (4) Service areas shall be located in or readily available to each nursing unit. The size and disposition of each service area will depend upon the number and types of beds to be served. Although identifiable spaces are required to be provided for each of the indicated functions, consideration will be given to design solutions which would accommodate some functions without specific designation of areas or rooms. Details of such proposals shall be submitted for prior approval. Each service area may be arranged and located to serve more than one nursing unit but at least one such service area shall be provided on each nursing floor. The applicable service areas include the following. (A) Bathing facilities. One bathtub or shower shall be provided for each 4-bed room or space which is not otherwise served by bathing facilities within patients' rooms. (i) Each tub or shower shall be in an individual room or enclosure which provides space for the private use of the bathing fixture and for drying and dressing. (ii) At least 10% of the bathing fixtures on each patient unit shall be designed for handicapped persons. The bathing area for handicapped persons shall be in addition to the toilet rooms for handicapped persons in sleeping rooms as described in paragraph (3)(F) of this subsection. (B) Storage. Space for emergency equipment shall be under the direct control of the nursing staff in close proximity to the nurses' station and out of normal traffic. (C) Seclusion room. There shall be a seclusion room for short-term occupancy by a single patient requiring security and protection from either himself or others. (i) Minimum room area shall be 60 square feet and the minimum room dimension shall be 6 feet. (ii) The seclusion room shall be located and designed in a manner affording direct supervision by nursing staff and shall be constructed to prevent patient hiding, escape, injury or suicide. (iii) There shall be a minimum of one seclusion room for every 24 beds or under. (I) One additional seclusion room shall be provided for each additional 24 beds or portion. Rooms may be grouped together or placed in each psychiatric nursing unit. (II) Special fixtures, hardware, and tamper-proof screws shall be used. (III) Doors shall open out and permit staff observation of the entire room while maintaining privacy from public and other patients. (IV) The seclusion room shall be accessed by an anteroom or vestibule which also provides direct access to a toilet room. The toilet room and anteroom shall be large enough to safely manage the patient. (V) Each seclusion room shall have natural light (skylight, window, or small fixed glass opening) in order to maintain a therapeutic environment. (c) Pharmacy. (1) The size and type of services to be provided in the pharmacy shall be commensurate with the type of drug distribution system used, number of patients to be served, and extent of shared or purchased services. (2) Space, equipment, and supplies provided for pharmaceutical services shall be adequate to ensure patient safety in the proper storage, preparation, dispensing, and administration of drugs, in accordance with the licensing standards of the Texas State Board of Pharmacy for institutional (Class C) pharmacies and shall be explained in the narrative program. (d) Dietary facilities. (1) General. (A) Construction, equipment, and installation shall comply with the state and local food service standards specified in Health, Education, and Welfare, Food and Drug Administration (HEW, FDA), Number 28-2081, and sec.sec.229.161-229.171 of this title (relating to Rules on Food Service Sanitation). (B) Food service facilities shall be designed and equipped to meet the requirements of the narrative program and may consist of on-site or off-site conventional food preparing system, convenience food-preparing systems, or any appropriate combination of the two. (2) Functional elements. The following facilities shall be provided regardless of type and location of dietary services: (A) control station for receiving food supplies; (B) storage space, including cold storage, for at least a four-day supply of food; (C) food preparation facilities. Conventional food preparation systems require space and equipment for preparing, cooking, and baking. Convenience food service systems such as frozen prepared meals, bulk packaged entrees, and individually packaged portions, or systems using contractual commissary services require space and equipment for thawing, portioning, cooking, and/or baking; (D) handwashing facilities located in the food preparation area (see the table in subsection (q)(5)(B)(v) of this section; (E) patients' meal service facilities. Space shall be provided for serving areas and space may be provided for tray assembly and distribution for patients unable to eat in the dining area; (F) dining space for ambulatory patients, staff, and visitors, with a minimum floor space of 15 square feet per person to be seated. This footage requirement does not include serving areas and may be decreased if proper justification is included in the narrative program and approval is obtained from the department; (G) dishwashing area located in a room or an alcove separate from food preparation and serving area. Commercial-type dishwashing equipment shall be provided. Space shall also be provided for receiving, scraping, sorting, and stacking soiled tableware and for transferring clean tableware to the using areas. A lavatory shall be located within the soiled dish wash area. There shall be no cross traffic between "dirty side" and "clean side" of dish room and food handling areas (see the table in subsection (q)(5)(B)(v) of this section; (H) potwashing facilities shall be equipped at a minimum with a three- compartment sink; (I) storage areas and sanitizing facilities for cans, carts, and mobile tray conveyors to meet the requirements of the narrative program. All containers for trash storage shall have tight-fitting lids; (J) waste storage facilities located in a separate room easily accessible to the outside for direct pickup or disposal. A floor drain and hose bibb shall be provided; (K) office or desk space for dietitian(s) and/or the dietary service manager; (L) toilets for dietary staff shall be located conveniently to dietary area that shall not be open directly to the food preparation area; (M) janitors' closet located within the dietary department. It shall contain a floor receptor or service sink and storage space for housekeeping equipment and supplies; (N) self-dispensing icemaking facilities may be in area or room separate from food preparation area, but must be easily cleanable and convenient to dietary facilities; and (O) grease trap or grease interceptor shall comply the requirements of subsection (q)(5) of this section (e) Administration and public areas. (1) The following areas shall be provided: (A) entrance, at grade level, sheltered from inclement weather, and accessible to the handicapped; (B) lobby; the lobby shall include the following: (i) reception and information counter or desk; (ii) waiting area; (iii) handicapped public toilet facilities; (iv) handicapped public telephones; (v) handicapped public drinking fountains; and (vi) storage space for wheelchairs; (C) interview space; adequate interview space shall be provided for private interviews relating to social service, credit, and admissions; (D) general or individual office space; For business transactions, medical and financial records, and administrative and professional staffs, and where required, offices shall be designed for acoustical privacy and the minimum office size shall be as required by the narrative program; (E) multipurpose room(s); For conferences, meetings, and health education purposes including provisions for showing visual aids; (F) resource library facilities to meet the requirements of the narrative program; and (G) storage for office equipment and supplies; (f) Medical records area. The following rooms and areas shall be provided: (1) office or desk space for records administrator; (2) review and dictating room(s) or spaces; (3) work area for sorting, recording, or microfilming records; and (4) storage area for records. (g) General storage. The following shall be provided: (1) offstreet unloading facilities; (2) receiving area; and (3) general storage rooms. A total of not less than 12 square feet (1. 11 square meters per bed space). The rooms shall generally be concentrated in one area, but, in a multiple-building complex, they may be in separate concentrated areas in one or more individual buildings. (h) Linen services. (1) A hospital shall have provisions for storage and processing of clean and soiled linen for appropriate patient care. Processing may be done within the hospital, in a separate building on or off site, or in a commercial or shared laundry. The laundry process follows the standards of the Center for Disease Control, HHS Publication (CDC) 83-8314, July 1983, and Guidelines for Healthcare Linen Service, Joint Committee on Healthcare Laundry Guidelines, National Association of Institutional Linen Managers. (2) Facilities and equipment shall minimally include the following elements: (A) a separate room for receiving and holding soiled linen until ready for pick up or processing; (B) a central, clean linen storage and issuing room(s) in addition to the linen storage required at individual patient units. The central storage capacity shall be sufficient for four days' operation or two normal deliveries whichever is greater; (C) cart storage area(s) for separate parking of clean and soiled linen carts out of traffic; (D) a clean linen inspection and mending room or area; and (E) handwashing facilities shall be provided in each area where unbagged soiled linen is handled. (3) If linen is processed outside the building, provisions shall also be made for: (A) a service entrance protected from inclement weather for loading and unloading of linen; and (B) control station for pick-up and receiving. (4) If linen is processed in a laundry facility which is part of the project (within or as a separate building), the following shall be provided in addition to that of subsection (h)(2) of this section: (A) receiving, holding, and sorting room for control and distribution of soiled linen. Discharge from soiled linen chutes may occur within this room or into a separate room; (B) laundry processing room with commercial type equipment which can process at least a seven-day supply within the regular scheduled work week. This may require a capacity for processing a seven-day supply in a 40-hour week; (C) storage for laundry supplies; (D) employee handwashing facilities in each separate room where clean or soiled linen is processed and handled; (E) arrangement of equipment shall permit an orderly work flow with a minimum of cross-traffic that might mix clean and soiled operations; and (F) convenient access for employees lockers, showers, and lounge. (i) Facilities for cleaning and sanitizing carts. Facilities shall be provided to clean and sanitize carts serving the central service department, dietary facilities, and linen services. These may be centralized or departmentalized. (j) Employee facilities. Lockers, lounges, toilets, shall be provided for employees and for volunteers. These shall be in addition to and separate from those required for medical staff and public. (k) Janitors' closets. Sufficient janitors' closets shall be provided throughout the facility as required to maintain a clean and sanitary environment. Each shall contain a floor receptor or service sink and storage space for housekeeping equipment and supplies. (l) Engineering service and equipment areas. The following shall be provided as necessary for effective service and maintenance functions: (1) room(s) or separate building(s) for boilers, mechanical, and electrical equipment; (2) engineer's office(s) with file space and provisions for protected storage of facility drawings, records, and manuals; (3) general maintenance shop(s) for repair and maintenance; (4) storage room for building maintenance supplies. Storage for solvents and flammable liquids shall be as required by applicable National Fire Protection Association's (NFPA) codes; (5) separate area or room specifically for storage, repair, and testing of electronic and other medical equipment. The amount of space and type of utilities will vary with the type of equipment involved and type of outside contracts used; and (6) yard equipment and supply storage areas shall be located so that equipment may be moved directly to the exterior without interference with other work. (m) Waste processing services. Space and facilities shall be provided for the sanitary storage and disposal of waste by mechanical destruction, compaction, containerization, removal, or by a combination of these techniques. (n) Details and finishes. Details and finishes in new construction projects, including additions and alternations, shall be in compliance with Chapter 12, NFPA 101, Life Safety Code, 1991 edition. All details and finishes shall meet the following requirements. (1) Details. (A) Compartmentation, exits, fire alarms, automatic extinguishing systems, and other details relating to fire prevention and fire protection shall comply with requirements listed in NFPA 101, 1991 edition. The minimum corridor width in patient areas shall be six feet in all new hospitals. Provision of the six-foot corridor will limit the use to psychiatric hospitals. The minimum corridor width in patient areas shall be four feet in existing hospitals. (B) Items such as drinking fountains, telephone booths, vending machines, and portable equipment shall be located so that they do not project into and restrict exit corridor traffic or reduce the exit corridor width below the required minimum. (C) Rooms containing bathtubs, showers, and water closets, subject to occupancy by patients, shall be equipped with doors and hardware which will permit access from the outside in any emergency. When such rooms have only one opening or are small, the doors shall be capable of opening outwards or be otherwise designed to be opened without need to push against a patient who may have collapsed within the room. (D) If required by the narrative program, suitable hardware shall be provided on doors to patients toilet rooms so that access to these rooms can be controlled by staff. (E) Doors to patient rooms may be lockable from corridor side but hardware shall not restrict egress from patient rooms. (F) Exit access doors and doors from hospital sleeping rooms shall be at least 36 inches wide. Openings providing access for handicapped persons shall have a minimum clear opening of 32 inches with the door open 90 degrees, measured between the face of the door and the door frame stop. Therefore, all doors along accessible routes and doors to toilet rooms for handicapped persons shall be at least 36 inches wide. (G) Doors on all openings between corridors and rooms or spaces subject to occupancy, except elevator doors, shall be swing-type. Openings to showers, baths, patient toilets, and other small wet-type areas not subject to fire hazard are exempt from this requirement. (H) Windows and outer doors which may be frequently left in an open position shall be provided with insect screens. All windows at the kitchen and dining areas shall have screens. (I) Patient rooms intended for occupancy of 24 hours or more shall have an outside window with operable section or outside door with light arranged and located so that it can be opened from the inside to permit the venting of products of combustion and to permit any occupant to have direct access to fresh air in case of emergency. NFPA 101, 1991 Edition. (J) Sidelights or borrowed lights in exterior walls in which the glazing extends down to within 18 inches of the floor (thereby creating possibility of accidental breakage by pedestrian traffic) shall be glazed with safety glass, or plastic glazing material that will resist breaking and will not create dangerous cutting edges when broken. Light panels in corridor walls shall be similarly glazed, and when panels are of door-size, a horizontal frame member shall be provided to divide the panels at chair rail height or the panels protected by a horizontal railing. Similar materials shall be used in wall openings of recreation rooms and exercise rooms unless required otherwise for fire safety. Safety glass or plastic glazing materials shall be used for shower doors and bath enclosures. Openings in corridor walls shall be protected as required by NFPA 101, LSC, 1991 edition. (K) Where labeled fire doors are required, these shall be certified by an independent testing laboratory as meeting the construction requirements equal to those for fire doors in NFPA Standard 80, 1991 edition. Reference to a labeled door shall be construed to include labeled frame and hardware. (L) Elevator shaft openings shall have class "B," 1 1/2-hour labeled fire doors. (M) The design and construction of linen and refuse chutes shall be in accordance with NFPA 82, "Standard on Incinerators and Rubbish Handling", 1991 edition and shall meet or exceed the following requirements: (i) Service openings to chutes shall not be located in corridors or passageways but shall be located in a room of construction having a fire- resistance of not less than one hour. Doors to such rooms shall not be less than class "C," 3/4-hour labeled doors. (ii) Service openings to chutes shall have approved self-closing class "B," 1 1/2-hour labeled fire doors. (iii) Minimum cross-sectional dimension of gravity chutes shall be not less than two feet. (iv) Chutes shall discharge directly into collection rooms separate from incinerator, laundry, or other services. Separate collection rooms shall be provided for trash and for linen. The enclosure construction for such rooms shall have a fire-resistance of not less than two hours, and the doors to the rooms shall be not less than class "B," 1 1/2-hour labeled fire doors. (N) Dumbwaiters, conveyors, and material handling systems shall not open directly into a corridor or exitway but shall open into a room enclosed by construction having a fire-resistance of not less than one hour and provided with class "C," 3/4-hour labeled fire doors. Service entrance doors to vertical shafts containing dumbwaiters, conveyors, and material handling systems shall be not less than class "B," 1 1/2-hour labeled fire doors for 2-hour walls and class "C," 3/4-hour labeled fire doors for one-hour walls or partitions. (O) Expansion joint covers shall be made flush with the floor surface to facilitate use of wheelchairs and carts. Expansion joints shall be constructed to restrict passage of fire and smoke. Thresholds shall not exceed 1/2- inch in height and shall be beveled so that they do not interfere with the movement of wheelchairs. (P) Grab bars shall be provided at toilets, showers, and tubs designed for handicapped persons. The bars shall be 1 1/2-inch in diameter, shall have 1 1/2- inch clearance to walls and shall have sufficient strength and anchorage to sustain a concentrated load of 250 pounds. (Q) Location and arrangement of handwashing facilities shall permit their proper use and operation. The water supply spout for lavatories and sinks required in patient care areas shall be mounted so that its discharge point is a minimum distance of five inches above the rim of the fixture used by medical and nursing staff and all lavatories accessible to patients and food handlers shall be trimmed with valves which can be operated without the use of the hands. (R) Mirrors shall not be installed at handwashing fixtures in food preparation areas or clean and sterile supply areas. (S) Provisions for hand drying shall be included at all handwash facilities. These shall be single-use separate individual paper or cloth units enclosed in such a way as to provide protection against dust or soil and ensure single unit dispensing or hot air dryers. (T) Lavatories and handwashing facilities shall be securely anchored to withstand an applied vertical load of not less than 250 pounds on the front of the fixture. (U) The minimum ceiling height shall be eight feet with the following exceptions: (i) Boiler rooms shall have ceiling clearances not less than four feet above the top of the boiler. (ii) Rooms containing ceiling-mounted equipment shall have height required to accommodate the equipment or fixtures. (iii) Ceilings in corridors, storage rooms, toilet rooms, and other minor rooms shall be not less than seven feet, six inches. (iv) Suspended tracks, rails, pipes, signs, lights, door closers, exit signs, and/or other fixtures that protrude into the path of normal traffic shall not be less than six feet, eight inches above the finish floor. (V) Noise reduction criteria shown in the following table shall apply to partitions, floors, and ceiling construction in patient areas. [graphic] (W) Recreation rooms, exercise rooms, and similar spaces where impact noises may be generated shall not be located directly over patient bed area unless special provisions are made to minimize such noise (see table in subparagraph (V) of this paragraph). (X) Rooms containing heat-producing equipment (such as boiler or heater rooms and laundries) shall be insulated and ventilated to prevent any floor surface above and/or adjacent walls of occupied areas from exceeding a temperature of 10 degrees Fahrenheit (six degrees Centigrade) above the ambient room temperature. (2) Finishes. (A) Floor materials shall be easily cleanable and have wear resistance appropriate for the location involved. Floors in areas used for food preparation or food assembly shall be water-resistant and greaseproof. Joints in tile and similar material in such areas shall be resistant to food acids. In all areas frequently subject to wet-cleaning methods, floor materials shall not be physically affected by germicidal and cleaning solutions. Floors that are subject to traffic while wet (such as shower and bath areas, kitchens, and similar work areas) shall have a nonslip surface. (B) Wall bases in kitchens, soiled workrooms, and other areas which are frequently subject to wet cleaning methods shall be made integral and coved with the floor, tightly sealed within the wall, and constructed without voids that can harbor insects. (C) Wall finishes shall be washable and, in the immediate area of plumbing fixtures, shall be smooth and moisture resistant. Finish, trim, and floor and wall construction in dietary and food preparation areas shall be free from spaces that can harbor rodents and insects. (D) Floor and wall penetrations by pipes, ducts, and conduits shall be tightly sealed to minimize entry of rodents and insects. Joints of structural elements shall be similarly sealed. (E) The dietary and food preparation areas shall have a smooth impervious monolithic ceiling surface without crevices that can retain dirt particles and that can be washed and cleaned. The finished ceiling in the dietary and food preparation areas shall cover all overhead ductwork and piping. Finished ceilings may be omitted in mechanical and equipment spaces, repair-work shops, general storage areas, and similar spaces, unless required for fire-resistive purposes. (F) Acoustical ceilings shall be provided for corridors in patient areas, nurses' stations, dayrooms, recreation rooms, dining areas, and waiting areas. (G) Ceilings of patient rooms may be acoustically treated; however, they shall be of monolithic or bonded ceiling construction. (o) Construction, including fire-resistive requirements. (1) Design. Every building and every portion thereof shall be designed and constructed to sustain all dead and live loads in accordance with accepted engineering practices and standards, including seismic forces where they apply. Refer to classification of occupancy. (2) Foundations. Foundations shall rest on natural solid bearing if a satisfactory bearing is available at reasonable depths. Proper soil-bearing values shall be established in accordance with recognized standards. If solid bearing is not encountered at practical depths, the structure shall be supported on driven piles or drilled piers designed to support the intended load without detrimental settlement, except that one-story buildings may rest on a fill designed by a soils engineer. When engineered fill is used, site preparation and placement of fill shall be done under the direct full-time supervision of the soils engineer. The soils engineer shall issue a final report on the compacted fill operation and certification of compliance with the job specifications. All footings shall extend to a depth not less than one foot below the estimated maximum frost line. (3) Construction. Construction shall be in accordance with the requirements of NFPA 101, 1991 edition and the minimum requirements contained herein. Where local codes in effect are in excess of these requirements, the more stringent shall apply. (4) Freestanding buildings. Separate freestanding buildings housing non- patient areas such as the boiler plant, laundry, repair-work shops, or general storage may be of unprotected noncombustible construction, protected noncombustible construction, or fire-resistive construction and be designed in accordance with other occupancy classifications regarding exit requirements. Separate freestanding buildings, housing non-sleeping patient areas, in which care/treatment is rendered to patients who are capable of judgment and appropriate physical action for self-preservation under emergency conditions in the opinion of the governing body of the hospital and the department, may come under the ambulatory health care centers section of Chapters 12 and 13, NFPA 101, 1991 edition. (5) Enclosures. Enclosures for stairways, elevator shafts, chutes and other vertical shafts shall be as required by NFPA 101, 1991 edition. Hazardous areas and severe hazardous areas shall be safeguarded in accordance with NFPA 101, 1991 edition. (6) Interior finishes. Interior finish materials shall comply with the flame spread limitations and the smoke production limitations set forth in NFPA 101, Chapter 12, sec.6-5, LSC, 1991 edition. If a separate underlayment is used with any floor finish materials, the underlayment and the finish material shall be tested as a unit or equivalent provisions made to determine the effect of the underlayment on the flammability characteristics of the floor finish material. Tests shall be performed by an independent testing laboratory. The above does not apply to minor quantities of wood or other trim (see NFPA 101, 1991 edition) nor does it apply to wall covering less than four millimeters in thickness applied over a noncombustible base. (7) Insulation materials. Building insulation materials, unless sealed on all sides and edges, shall have a flame spread rating of 25 or less and a smoke developed rating of 150 or less when tested in accordance with NFPA 258, "Standard Test Method for Measuring the Generated by Solid Materials", 1991 edition. (8) Provision for natural disasters. (A) General requirements. An emergency radio communication system in each facility is recommended. When provided, the system shall be self-sufficient in time of emergency, capable of operation without reliance on the building's service or emergency power supply, and it shall be linked with the available community or state emergency communication network, including connections with police and fire systems. (B) Hurricanes, tornadoes, and floods. Special provisions shall be made in the design of buildings in regions where local experience shows loss of life or extensive damage to building resulting from hurricanes, tornadoes, or floods. Disaster planning shall be completed in accordance with NFPA 99, "Standards for Health Care Facilities", 1984 edition. (p) Elevators. (1) General. All new hospitals having patient areas (such as sleeping rooms, dining rooms, or recreation area) on floors not opening onto grade or a public way shall have electric or electrohydraulic elevators as a part of the accessible route. Elevators shall also give access to all building levels normally used by the public. Installation and testing of new elevators shall comply with American National Standards Institute (ANSI) A17.1 and A17.1a. (A) The number of elevators for new facilities when applicable: (i) one elevator for the first 59 bed spaces; (ii) two elevators for 60-200 bed spaces; (iii) three elevators for 201-350 bed spaces; and (iv) for facilities with more than 350 beds, the number of elevators shall be determined from a study of the hospital plan and the estimated vertical transportation requirements. (B) Elevators shall be at least five feet wide by seven feet, six inches deep. The car door shall have a clear opening of not less than four feet. (C) Elevators shall be equipped with an automatic leveling device of the two- way automatic maintaining type with an accuracy of plus or minus one-half inch. (D) Elevators, except freight elevators, shall be equipped with a two-way special service switch to permit cars to bypass all landing-button calls and be dispatched directly to any floor. Key operated elevators as required by the narrative program. (E) Elevator controls, alarm buttons, and telephones shall be accessible to wheelchair occupants. (F) Elevator call buttons, controls, and door safety stops shall be of a type that will not be activated by heat or smoke. (2) Field inspection and tests. Inspections and tests shall be made and the owner shall be furnished written certification that the installation meets the requirements set forth in this section and all applicable safety regulations and codes. (q) Mechanical requirements. (1) General. (A) Mechanical systems shall be subject to special review for overall efficiency and life-cycle cost. The intent of this paragraph is to recognize that maximum savings can be made through implementation of a multitude of interrelated procedures which would be too numerous (and basic) to list. In most instances, a well-designed system can be energy efficient at minimal added cost and at the same time provide for better patient comfort. However, it must be emphasized that energy conservation cannot be used as an argument for lessening patient care or safety. (B) Prior to completion and acceptance of the hospital, all mechanical systems shall be tested, balanced, and operated to demonstrate to the owner or his representative that the installation and performance of these systems conform to the requirements of the plans and specifications. (C) Upon completion of the contract, the owner shall be furnished with a complete set of manufacturers' operating, maintenance, and preventive maintenance instructions, and parts lists and procurement information with numbers and description for each piece of equipment. He shall also be provided with instructions in the operational use of systems and equipment as required. (2) Thermal and acoustical insulation. (A) Insulation shall be provided for the following within the building: (i) boilers, smoke breaching, and stacks; (ii) steam supply and condensate return piping; (iii) hot-water piping and all hot-water heaters, generators, and converters; (iv) chilled water, refrigerant, other process piping, and equipment operating with fluid temperatures below ambient dew point; (v) water supply and drainage piping on which condensation may occur; (vi) air ducts and casings with outside surface temperature below ambient dew 80 degrees Fahrenheit (27 degrees Centigrade); and (vii) other piping, ducts, and equipment as necessary to maintain the efficiency of the system. (B) Insulation required in subparagraph (A) of this paragraph may be omitted from piping not subject to contact by patients when the heat loss from such piping without insulation does not increase the energy requirements of the system. (C) Insulation on cold surfaces shall include an exterior vapor barrier. (Material which will not absorb or transmit moisture will not require a separate vapor barrier.) (D) Insulation, including finishes and adhesives on the exterior surfaces of ducts, pipes, and equipment, shall have a flame spread rating of 25 or less and a smoke developed rating of 50 or less as determined by an independent testing laboratory in accordance with NFPA 255. (E) Linings in air ducts and equipment shall meet the Erosion Test Method described in Underwriters' Laboratory (UL) 181. These linings, including coatings and adhesives, and insulation on exterior surfaces of pipes and ducts in building spaces used as air supply plenums, shall have a flame spread rating of 25 or less and a smoke developed rating of 50 or less as determined by an independent testing laboratory in accordance with National Fire Protection Association (NFPA) 255, "Method of Test of Surface Burning Characteristics of Building Materials", 1990 edition. (F) Asbestos insulation shall not be used in health facilities. Insulation of "soft type" (i.e. spray-on) shall not be used where it is subject to air or mechanical erosion or where loose particles may create a maintenance problem (as at elevator control areas where particles may drift into electronic contacts). (G) Existing accessible insulation within affected areas of facilities to be modernized shall be inspected, repaired, or replaced as appropriate. (3) Steam and hot water systems. (A) Boilers. Boilers shall have the capacity, based upon the net ratings published by the manufacturer, to supply the normal requirements of all systems and equipment. The number and arrangement of boilers shall be such that when one boiler breaks down or routine maintenance requires that one boiler be temporarily taken out of service, the capacity of the remaining boiler(s) shall be sufficient to provide hot water service for clinical, dietary, and patient use; steam for sterilization and dietary purposes; and heating for general patient rooms except that capacity for space heating is not required in areas with a design temperature of 20 degrees Fahrenheit (-7 degrees Centigrade) or more, based on the Table for Climactic Conditions for the United States in the American Society of Heating, Refrigerating, and Air-Conditioning (ASHRAE) Handbook of Fundamentals. Boilers shall be inspected as required by the Texas Boiler Inspection Law, Rules and Regulations, administered by the Texas Department of Licensing and Regulation. (B) Boiler accessories. Boiler feed pumps, heating circulating pumps, condensate return pumps, and fuel oil pumps shall be connected and installed to provide normal and standby service. (C) Valves. Supply and return mains and risers of cooling, heating, and process steam systems shall be valved to isolate the various sections of each system. Each piece of equipment shall be valved at the supply and return ends except that vacuum condensate returns need not be valved at each piece of equipment. (4) Air conditioning, heating, and ventilating systems. (A) Temperatures and humidities. For areas occupied by inpatients, the indoor winter and summer design temperature shall be 75 degrees Fahrenheit (24 degrees Centigrade). (A minimum relative humidity of 30% is recommended but not required). For all other occupied areas, the indoor winter design temperature shall be 72 degrees Fahrenheit (22 degrees Centigrade) and the summer design temperature shall be 75 degrees Fahrenheit (24 degrees Centigrade). (B) Ventilation system details. The ventilation rates shown in the following table shall be used only as model standards; they do not preclude the use of higher rates that may be appropriate. [graphic] (i) All rooms and areas in the facility shall have provision for positive ventilation. While natural window ventilation for nonsensitive areas and patient rooms may be utilized where weather permits, availability of mechanical ventilation will be necessary for interior areas and during periods of temperature extremes. Fans serving exhaust systems shall be located at the discharge end and shall be conveniently accessible for service. Exhaust systems may be combined as necessary or efficient use of recovery devices for energy conservation. (ii) In the interest of energy conservation, the applicant is encouraged to utilize recognized procedures such as variable air volume. (iii) Outdoor intakes shall be located as far as practical but not less than 10 feet (25 feet for intake for kitchens) from exhaust outlets of ventilating systems, combustion equipment stacks, plumbing vents stacks, or from areas which may collect vehicular exhaust and other noxious fumes (plumbing and vacuum vents that terminate above the level of the top of the air intake may be located as close as 10 feet). The bottom of outdoor air intakes serving central systems shall be located as high as practical but not less than six feet above ground- level, or if installed above the roof, one feet above the roof level. (iv) The bottoms of ventilation (supply/return) openings shall be not less than 3 inches above the floor of any room. (v) Corridors shall not be used to supply air to or exhaust air from any room, except that air from corridors may be used to ventilate bathrooms, toilet rooms, janitors' closets, and telephone closets opening directly on corridors provided that ventilation can be accomplished by undercutting of doors. (vi) All central ventilation or air-conditioning systems shall be equipped with filters having efficiencies equal to, or greater than those specified in the following table. Where two filter beds are required, filter bed Number 1 shall be located upstream of the air conditioning equipment and filter bed Number 2 shall be downstream of any recirculating spray water system, water reservoir type humidifiers, and blowers. Where only one filter bed is required, it shall be located upstream of the air conditioning equipment unless an additional prefilter is employed. In this case, the prefilter shall be upstream of the equipment and the main filter may be located further downstream. Filter efficiencies shall be average efficiencies tested in accordance with American Society of Heating, Refrigerating, and Air-Conditioning (ASHRAE) Standards 52-76 except as noted otherwise. Filter frames shall be durable and dimensioned to provide an airtight fit with the enclosing ductwork. All joints between filter segments and the enclosing ductwork shall be gasketed or sealed to provide a positive seal against air leakage. A manometer shall be installed across each filter bed having a required efficiency of 75% or more including hoods requiring HEFA filters. [graphic] (vii) Air-handling duct systems shall meet the requirements of NFPA 90A, "Standard for the Installation of Air-Conditioning and Ventilating Systems", 1989 edition. (viii) Fire and smoke dampers shall be constructed, located, and installed in accordance with the requirements of NFPA 90A, except that all systems, regardless of size, which serve more than one smoke or fire zone, shall be equipped with smoke detectors to shut down fans automatically as delineated in NFPA 90A. Access for maintenance shall be provided at all dampers. (ix) Switching for restart of fans may be conveniently located for fire department use to assist in evacuation of smoke after the fire is controlled, provided that provisions are made to avoid possible damage to the system because of closed dampers. (x) An approved damper designed to resist the passage of smoke shall a duct penetrates a smoke barrier in which smoke dampers are required. The damper shall close automatically upon detection of smoke by an approved smoke detector located within the duct. Manual or remote control reset devices may be used. On high-velocity system, a time-delay is required so that fan will be stopped prior to damper closing. Engineered smoke-exhaust systems may be considered for approval as described by NFPA on a case-by-case basis. (xi) Exhaust hoods in food preparation areas shall comply with NFPA 96, "Standard for the Installation of Equipment for the Removal of Smoke and Grease- Laden Vapors from Commercial Cooking Equipment", 1991 edition, and shall have an exhaust rate of not less than 50 cfm per square foot of face area. Face area is defined for this purpose as the open area from the exposed perimeter of the hood to the average perimeter of the cooking surfaces. All hoods over cooking ranges shall be equipped with grease filters, fire extinguishing systems, heat-actuated fan controls and connected to the fire alarm system. Cleanout openings shall be provided every 20 feet in horizontal exhaust-duct system serving these hoods. (xii) Boiler rooms shall be provided with sufficient outdoor air to maintain combustion rates of equipment and to limit temperatures in working stations to 97 degrees Fahrenheit (36 degrees Centigrade) Effective Temperature (ET) as defined by ASHRAE Handbook of Fundamentals. (xiii) The ventilation systems shall be designed and balanced to provide the outdoor air requirements as contained in ASHRAE Standard 62-1981. (5) Plumbing and other piping systems. All plumbing systems shall be designed and installed in accordance with the requirements of PHCC National Standard Plumbing Code, Chapter 14, "Medical Care Facility Plumbing Equipment" and local codes and these minimum standards. (A) Plumbing fixtures. (i) The material used for plumbing fixtures shall be of nonabsorptive acid- resistant material. (ii) The water-supply spout for fixtures used by medical and nursing staff and food handlers shall be mounted so that its minimum distance of 1-1/2 inches above the rim of the fixture and shall be trimmed with valves which can be operated without the use of hands (single-lever devices may be used). Where blade handles are used for this purpose, they shall not exceed 4-1/2 inches in length. (iii) Showers and tubs shall provide nonslip surfaces for standing patients. (B) Water supply systems. (i) Systems shall be designed to supply water at sufficient pressure to operate all fixtures and equipment during maximum demand periods. (ii) Each water service main, branch main, riser, and branch to a group of fixtures shall be valved. Stop valves shall be provided at each fixture. (iii) Backflow preventers (vacuum breakers) shall be installed on hose bibbs, laboratory sinks, janitors' sinks, bedpan flushing attachments, and on all other fixtures to which hoses or tubing can be attached. (iv) Flush valves installed on plumbing fixtures shall be of a quiet operating type. (v) Water distribution systems shall be arranged to provide hot water at each hot water outlet at all times. Hot water at showers and bathing facilities shall not exceed 110 degrees Fahrenheit (43 degrees Centigrade). Hot water at handwash facilities shall not exceed 110 degrees Fahrenheit (43 degrees Centigrade). [graphic] (vi) Emergency potable water storage facilities shall be provided. The storage tank capacity shall not be less than 500 gallons or 12 gallons per patient bed, whichever is greater. Hot water storage tanks may meet these requirements. (C) Hot water heaters and tanks. (i) The hot-water heating equipment shall have sufficient capacity to supply water at the temperatures and amounts required. Water temperatures are to be taken at or inlet to processing equipment. (ii) Storage tank(s) shall be fabricated or corrosion-resistant metal or lined with noncorrosive material. (D) Drainage systems. (i) Drain lines from sinks in which acid wastes may be poured shall be fabricated from an acid-resistant material and be connected to a dilution basin. (ii) Insofar as possible, drainage piping shall not be installed within the ceiling nor installed in an exposed location in food preparation areas, food serving facilities, food storage areas, and other critical areas. Special precautions shall be taken to protect these areas from possible leakage or condensation from overhead piping systems when such piping is unavoidable. (iii) Building sewers shall discharge into a community sewerage system. Where such a system is not available, a facility providing sewage treatment must conform to applicable local and state regulations. (E) Identification. All piping including heating, ventilating, air conditioning (HVAC) shall be color coded or otherwise marked for easy identification. (r) Electrical requirements. (1) General. (A) All material including equipment, conductors, controls, and signaling devices shall be installed to provide a complete electrical system with the necessary characteristics and capacity to supply the electrical facilities shown in the specifications or indicated on the plans. All materials shall be listed as complying with available standards of Underwriters' Laboratories, Inc., or other similarly established standards. The electrical installation shall comply with applicable sections of the NFPA 70, "National Electric Code" (NEC), 1990 edition, and NFPA 99, "Standards for Health Care Facilities", 1990 edition; and as necessary to provide a complete electrical system. (B) All electrical installations and systems shall be tested to show that the equipment is installed and operates as planned or specified. A written record of performance tests on special electrical systems and equipment shall be supplied to the owner. Such tests shall show compliance with the governing codes and shall include isolated power systems and alarm systems. (2) Switchboards and power panels. Circuit breakers or fusible switches that provide disconnecting means and overcurrent protection for conductors connected to electrical switchboards and panelboards shall be enclosed or guarded to provide a dead-front type of assembly. The main electrical switchboard shall be located in a separate enclosure located so as to be protected from fire, flood and other hazards and the enclosure shall be accessible only to authorized persons. The electrical switchboards shall be convenient for use, readily accessible for maintenance, clear of traffic lanes, and in a dry, ventilated space free of corrosive fumes or gases. Overload protective devices shall be suitable for operating properly in the ambient temperature conditions. (3) Panelboards. Panelboards serving lighting and appliance circuits shall be located on the same floor as the circuits they serve. (4) Lighting. (A) All spaces occupied by people, machinery, and equipment within buildings, approaches to buildings, and parking lots shall have lighting. (B) Patients' rooms shall have general lighting and night lighting. A reading light shall be provided for each patient. All switches for control of lighting in patient areas shall be of the quiet operating type, and controlled by patients when appropriate. At least one light fixture for night lighting shall be switched at the entrance to each patient room. (C) Nursing unit corridors shall have general illumination with provisions for reduction of light level at night. (5) All corridors shall have general illumination with provisions for reduction of light levels at night. Exit lightings shall be in accordance with NFPA 101 and NFPA 70, NEC. (6) Light intensity for staff and patient needs shall be described in Table I of Publication CP 29, "Lighting for Health Care Facilities", by the Illuminating Engineering Society of North America. The referenced table indicates light levels for visual needs. An infinite number of procedures may be available to satisfy requirements but the design shall consider light quality as well as quantity for effectiveness and efficiency. (7) Receptacles (convenience outlets). (A) Patient rooms. An adequate number of tamper proof outlets shall be provided. At least one duplex grounding type receptacle shall be located on each side of the head of each bed. (B) Where mobile x-ray equipment requiring special electrical considerations is used, additional receptacles distinctively marked for x-ray use. (See NFPA 70 NEC Article 517 for receptacles distinctively marked for x-ray use.) (C) Corridors. Safety-type grounded duplex receptacles shall be installed approximately 50 feet apart in all corridors and within 25 feet of the ends of corridors. (D) Receptacles powered by the emergency system shall be identified by a red cover-plate or other distinctive marking as approved by the department. At least one duplex grounding type receptacle on the emergency system shall be provided for each patient bedroom. (8) Conductors for control, equipment, lighting and power. All conductors for controls, equipment, lighting and power operating at 100 volts or higher shall be installed in metal or metallic raceways. (9) Essential electrical system. (A) General. All hospitals shall have an approved standby electrical supply capable of supplying essential electrical service to selected lighting, receptacles, equipment and motors as listed in NFPA 70, NEC, and NFPA 99. This standby electrical supply shall be a gas turbine or internal combustion engine- driven generator set(s), designed to operate automatically by a drop in voltage in the primary electrical supply. When the generator set is located within the hospital, the unit must be installed in a room which will afford a minimum of one-hour fire resistance rated construction. Exterior located generator sets shall not be located near patient rooms or other areas which would affect patient care unless the units are designed and installed to operate within the allowable sound transmission levels listed in the table in subsection (n)(1)(V) of this section. The generator set(s) including fuel tanks, exhaust lines and appurtenant parts shall be installed and maintained in accordance with NFPA 99, NFPA 37, and the requirements of sec.134.54 of this title (relating to Other Codes and Standards). Stored fuel capacity shall be such as to permit continuous operation for at least 24 hours at full load. Generator sets located outside shall be designed and rated for exterior use. (B) Transfer switches. The number of transfer switches to be used shall be based upon reliability, design, and load consideration. One transfer switch shall be permitted to serve one branch or one system, provided that the rating of the transfer switch does not exceed 150 kva when serving more than one branch system. (10) Fire alarm systems. (A) A fire alarm system shall be installed in all areas of the hospital as required by NFPA 101 and NFPA 72 series. (B) The fire alarm panel shall be located in a constantly attended location (such as PBX or nurses' station) staffed by trained personnel who are qualified to take appropriate action in case of a fire emergency. Qualified personnel shall also be able to identify malfunctioning equipment and report such equipment to the local fire authority. Equipment malfunctions shall be reported to the appropriate personnel for immediate repair. (C) Remote annunciator panels, equipped with alarm by zone and a common trouble signal shall be located at auxiliary or secondary staff stations on each floor or major subdivisions of single-story hospitals, that will indicate the alarm condition of adjacent zones and the alarm conditions at all other staff stations. (11) Fire sprinkler system approval. (A) Sprinkler shop drawings must be submitted for approval to one of the following agencies and a copy of the submittal to the department. Approval of the fire sprinkler system is mandatory before approval letter permission to occupy the area can be given by the department. (i) Factory Mutual Engineering, 12222 Merit Drive, Suite 1800, Dallas, Texas 75251; (ii) Fire Prevention and Engineering Bureau of Texas, 1431 Greenway Drive; Suite 520; Irving, Texas 75038; or (iii) State Board of Insurance, Engineering Section-Property Division; 1110 San Jacinto; Austin, Texas 78701. (B) As an alternative to the requirement in subparagraph (A) of this paragraph, the sprinkler shop-drawings may be reviewed by a professional engineer registered by the Texas State Board of Registration for Professional Engineers and experienced in hydraulic design and fire sprinkler system installation. The engineer may not be employed by the fire sprinkler contractor or be connected in any way with the project that would constitute a conflict of interest. Forward one set of shop drawings to this department along with a letter written and signed by the engineer (including the engineer's registration number) and stating that the fire sprinkler system plans reviewed by the engineer, comply with the requirements of National Fire Protection Association's "Standard for the Installation of Sprinkler Systems", NFPA 13 and that the system has been installed (field verified by the engineer) in accordance with the approved plan. (C) Remote annunciator panels, equipped with alarm by zone and a common trouble signal shall be located at auxiliary or secondary staff stations on each floor or major subdivisions of single-story hospitals, that will indicate the alarm condition of adjacent zones and the alarm conditions at all other staff stations. (s) General considerations for construction of crisis stabilization units shall comply with Chapter 401, Subchapter K of this title (relating to Rules Governing Licensure of Crisis Stabilization Units). sec.134.54 Other Codes and Standards. (a) General. This section does not release a hospital from compliance with building codes, ordinances, and regulations which are enforced by city, county, or state jurisdiction. Where such codes, ordinances, and regulations are not in effect, the hospital shall consult the applicable model building codes described in this subsection used in the area for all components of the building type which are not specifically covered by this chapter provided that the requirements of the model code are consistent with the minimum requirements contained in this chapter. (b) Codes and standards. (1) General. In addition to compliance with this chapter, all other applicable building codes, ordinances, and regulations under city, county, or other state agency's jurisdiction shall be observed. Compliance with local codes shall be prerequisite for licensing. In areas not subject to local building codes, any one of the following model building codes shall apply insofar as such codes are not in conflict with these standards. (A) Uniform Building Code-1991: International Conference of Building Officials, 5360 Workman Mill Road, Whittier, California 90601-2298; and (B) Standard Building Code-1984: International, Inc., 900 Montclair Road, Birmingham, Alabama 35213-1206. (2) Referenced standards. The following publications, either all or in part, are applicable to this chapter only when referenced in this chapter or when such installations are provided in a new hospital or an addition to a hospital. Existing buildings or installations which do not comply with the following publications may continue in service, unless replaced or renovated, and provided that lack of conformity with these standards does not present a serious hazard to the occupants. (A) American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE)-Standard Number 90-75-Energy Conservation in New Building Design; (B) American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE)-Standard Number 52-76-Methods of Testing Air Cleaning Devices Used in General Ventilation for Removing Particulate Matter; (C) American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE)-Handbook of Applications, 1978; (D) American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE)-Handbook of Fundamentals, 1981. (E) American Society for Testing and Materials (ASTM) - Standard Number E 84- 1977A-Method of Test for Surface Burning Characteristic of Building Materials; (F) ANSI A 17.1, l978-Safety Code for Elevators, Dumbwaiters, and Escalators and Supplement ANSI A17.1a, l979; (G) The Hydronics Institute-Testing and Rating Standards for Cast-Iron and Steel Heating Boilers, January 1977, 2nd Edition; (H) National Association of Institutional Linen Managers -Guidelines for Healthcare Linen Service, Joint Committee on Health Care Laundry Guidelines; (I) National Association of Plumbing Heating Cooling Contractors (PHCC)- National Standard Plumbing Code, 1983; (J) National Bureau of Standards (NBS) (Available through GPO-Technical No #708-Appendix II, GPO SD Catalog Number C13.45,708, NTIS COM:72:50062 - Inner Laboratory Evaluation of Smoke Density Chamber. Appendix II-Test Method for Measuring the Smoke Generation Characteristics of Solid Materials; (K) National Council on Radiation Protection (NCRP)-Report Number 33-1968- Medical X-ray and Gamma Ray Protection for Energies Up to 10 MeV Equipment Design and Use; (L) National Council on Radiation Protection (NCRP) -Report Number 49, 1976- Medical X-ray and Gamma Ray Protection for Energies up to 10 MeV Structural Shielding Design and Evaluation; (M) National Fire Protection Association Standards: (i) NFPA 10, 1990, Standard for Portable Fire Extinguishers; (ii) NFPA 11, 1988, Standard for Low Expansion Foam and Combined Agent Systems; (iii) NFPA 11A, 1988, Standard for Medium and High-Expansion Foam Systems; (iv) NFPA 12, 1989, Standard on Carbon Dioxide Extinguishing Systems; (v) NFPA 12A, 1989, Standard on Halon 1301 Fire Extinguishing Systems; (vi) NFPA 12B, 1990, Standard on Halon 1211 Fire Extinguishing Systems; (vii) NFPA 13, 1989, Standard for the Installation of Sprinkler Systems; (viii) NFPA 13A, 1987, Care and Maintenance of Sprinkler Systems; (ix) NFPA 13D, 1989, Standard for the Installation of Sprinkler Systems in One- and Two-Family Dwellings and Mobile Homes; (x) NFPA 14, 1990, Standard for the Installation of Standpipes and Hose Systems; (xi) NFPA 15, 1990, Standard for Water Spray Fixed Systems for Fire Protection; (xii) NFPA 16, 1991, Standard for the Installation of Deluge Foam-Water Sprinkler and Foam-Water Spray Systems; (xiii) NFPA 17, 1990, Standard for Dry Chemical Extinguishing Systems; (xiv) NFPA 20, 1990, Standard for the Installation of Centrifugal Fire Pumps; (xv) NFPA 22, 1987, Water Tanks for Private Fire Protection; (xvi) NFPA 30, 1990, Flammable and Combustible Liquids Code; (xvii) NFPA 31, 1987, Standard for the Installation of Oil Burning Equipment; (xviii) NFPA 37, 1988, Standard for The Installation and Use of Stationary Combustion Engines and Gas Turbines; (xix) NFPA 40, 1988, Standard for the Storage and Handling of Cellulose Nitrate Motion Picture Film; (xx) NFPA 50, 1990, Standard for Bulk Oxygen Systems at Consumer Site; (xxi) NFPA 54, 1988, National Fuel Gas Code; (xxii) NFPA 68, 1988, Guide for Deflagrations; (xxiii) NFPA 70, 1990, National Electric Code; (xxiv) NFPA 71, 1989, Standard for the Installation, Maintenance and Use of Signaling Systems for Central Station Service; (xxv) NFPA 72, 1990, Standard for the Installation, Maintenance, and Use of Protective Signaling Systems; (xxvi) NFPA 72E, 1990, Standard on Automatic Fire Detectors; (xxvii) NFPA 74, 1989, Standard for the Installation, Maintenance and Use of Household Fire Warning Equipment; (xxviii) NFPA 78, 1989, Lightning Protection Code; (xxix) NFPA 80, 1990, Standards for Fire Doors and Windows; (xxx) NFPA 80A, 1987, Recommended Practices for Protection of Buildings from Exterior Fire Exposure; (xxxi) NFPA 82, 1990, Standards on Incinerators Waste and Linen Handling Systems and Equipment; (xxxii) NFPA 88A, 1985, Standards for Parking Structures; (xxxiii) NFPA 90A, 1989, Standard for the Installation of Air-Conditioning and Ventilating Systems; (xxxiv) NFPA 91, 1990, Standard for the Installation of Blower and Exhaust Systems for Dust, Stock and Vapor Removal or Conveying; (xxxv) NFPA 96, 1991, Standard for the Installation of Equipment for the Removal of Smoke and Grease-Laden Vapors from Commercial Cooking Equipment; (xxxvi) NFPA 99, 1990, Standard for Health Care Facilities; (xxxvii) NFPA 101, 1991, Code for Safety to Life from Fire in Buildings and Structures; (xxxviii) NFPA 101M, 1992, Alternative Approaches to Life Safety; (xxxix) NFPA 204M, 1991, Guide for Smoke and Heat Venting; (xl)NFPA 206M, 1976, Guide on Building Areas and Heights; (xli) NFPA 220, 1985, Standard for Types of Building Construction; (xlii) NFPA 251, 1990, Standard Methods of Fire Tests of Building Construction and Materials; (xliii) NFPA 252, 1990, Standard Methods of Fire Tests of Door Assemblies; (xliv) NFPA 253, 1990, Standard Methods of Tests for Critical Radiant Flux of Floor Covering Systems Using Radiant Heat Energy Source; (xlv) NFPA 255, 1990, Method of Test of Surface Burning Characteristics of Building Materials; (xlvi) NFPA 256, 1987, Standard Methods of Fire Tests of Roof Coverings; (xlvii) NFPA 258, 1989, Standard Test Method for Measuring the Smoke Generated by Solid Materials; (xlviii) NFPA 325M, 1991, Fire Hazard Properties of Flammable Liquids, Gases, and Volatile Solids; (xlix) NFPA 418, 1990, Standard on Roof-Top Heliport Construction and Protection; and (l) NFPA 701, 1989, Standard Methods of Fire Test for Flame-Resistant Textiles and Films; (N) Sections 229.161-229.171 of this title (relating to Rules on Food Service Sanitation); (O) 16 TAC Chapter 68 (relating to Elimination of Architectural Barriers); (P) Boiler Rules from the Texas Department of Licensing and Regulation; (Q) Chapter 1 of this title (relating to Definition, Treatment and Disposition of Special Waste from Health Care Related Facilities; (R) Chapter 289 of this title (relating to Radiation Control); (S) Underwriters' Laboratories, Inc. (UL), Standard Number 181, 1974, Factory Made Air Duct Material and Air Duct Connectors; (T) U.S. Department of Health and Human Services, The Americans with Disabilities Act (ADA), Public Law 101-336, 42 U. S.C. sec.120101; (U) U.S. Department of Health and Human Services, Guidelines for Construction and Equipment of Hospital and Medical Facilities, DHHS Publication Number (HRS- M-HF)841; (V) U.S. Department of Health and Human Services, CDC Guidelines for Isolation Precautions in Hospitals, HHS Publication (CDC) 83-8314, July, 1983. (3) The codes and standards referenced in this subsection may be ordered from the appropriate organization or agency at the following addresses: (A) Air-Conditioning and Refrigeration Institute, 4301 North Fairfax Drive, Suite 425, Arlington, Virginia 22209; (B) American Association of Blood Banks, Committee on Standards, 8101 Glenbrook, Bethesda, Marland 20814; (C) American National Standards Institute, 11 West 42nd Street, 13th Floor, New York, New York 10036; (D) American Society For Testing and Materials, 1916 Race Street, Philadelphia, Pennsylvania 19103; (E) American Society of Heating, Refrigerating, and Air-Conditioning, 1791 Tullie Circle N.E., Atlanta, Georgia 30329; (F) American Society of Mechanical Engineers, 345 East 7th Street, New York, New York 10017; (G) Compressed Gas Association, 500 Fifth Avenue, New York, New York 10036; (H) Factory Mutual Engineering, 12222 Merit Drive, Suite 1800, Dallas, Texas 75251; (I) Fire Prevention and Engineering Bureau of Texas, 1431 Greenway Drive, Suite 520, Irving, Texas 75038; (J) GSA Specification Consumer Information Distribution Branch, Room G142, 18th & F Street N.W., Washington, DC 20405; (K) Gypsum Association, 810 East First Street, N.E., Suite 510, Washington, D.C. 20002; (L) The Hydronics Institute, P.O. Box 218, Berkeley Heights, New Jersey 07922; (M) National Association of Institutional Linen Managers, Joint Committee on Healthcare Laundry Guidelines, Guidelines for Healthcare Linen Services, 2130 Lexington Road, Suite H, Richmond, Kentucky 37027; (N) National Association of Plumbing-Heating-Cooling Contractors, P. O. Box 6808, Falls Church, Virginia 22040; (O) National Council on Radiation Protection and Measurement, 7910 Woodmont Avenue, Bethesda, Maryland 20814; (P) National Fire Protection Association, Inc., P.O. Box 9146, 1 Batterymarch Park, Quincy, Massachusetts 02169; (Q) Superintendent of Documents, U.S. Government Printing Office, Washington, DC 70402; (R) Texas Department of Health, Bureau of Radiation Control, 1100 West 49th Street, Austin, Texas 78756; (S) Texas Department of Health, Food and Drug Division, 1100 West 49th Street, Austin, Texas 78756; (T) Texas Department of Insurance, Engineering Section - Property Division, 333 Guadalupe, P.O. Box 149104, Austin, TX 78714-9104; (U) Texas Department of Licensing and Regulation, Attention: Boiler Division or Elimination of Architectural Barriers, P.O. Box 12157, Capitol Station, Austin, Texas 78711; (V) Texas Natural Resources Conservation Commission, Municipal Solid Waste, P.O. Box 13087, Austin, Texas 78711-3087; (W) Underwriters' Laboratories, Inc., 333 Pfingsten Road, Northbrook, Illinois 60062-2096; and (X) U. S. Department of Health and Human Services, Public Health Service, Health Resources and Services Administration, Bureau of Health Maintenance Organizations and Resources Development, Office of Health Facilities, Division of Facilities Conversion and Utilization, 5600 Fishers Lane, Rockville, Maryland 20857. (c) Codes and standards for the construction of crisis stabilization units shall comply with Chapter 401, Subchapter K, of this title (relating to Rules Governing Licensure of Crisis Stabilization Units). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 6, 1994. TRD-9438706 Susan K. Steeg General Counsel Texas Department of Health Effective date: May 2, 1994 Proposal publication date: November 2, 1993 For further information, please call: (512) 834-6645 Subchapter E. Enforcement 25 TAC sec.sec.134.71-134. 73 The new sections are adopted under the Health and Safety Code, Chapter 577, which provides the Texas Board of Health (board) with authority to adopt rules to establish and enforce minimum standards for the licensing of psychiatric hospitals and crisis stabilization units; 161, 164, 311, 313, 321 relating to abuse, neglect and unprofessional or unethical conduct in health care facilities; treatment facilities marketing and admission practices; health care facility surveys, and provision of mental health, chemical dependency and rehabilitation services; construction, inspection, and regulation; powers and duties of hospitals; cooperative agreements; and sec.12. 001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health. sec.134.71. Inspections and Investigation Procedures. (a) The Texas Department of Health (department) may make any inspection or investigation that it considers necessary. A representative of the department may enter the premises of a hospital at any reasonable time to make an inspection or an investigation to assure compliance with or prevent a violation of the Private Mental Hospital and other Mental Health Facilities Licensing Law, the Health and Safety Code, Chapter 577 (Act) or this chapter, an order or special order of the commissioner of health, a special license provision, a court order granting injunctive relief, or other enforcement procedures. (b) The department or a representative of the department is entitled to access to all books, records, or other documents maintained by or on behalf of the hospital to the extent necessary to enforce the Act, this chapter, an order or special order of the commissioner of health, a special license provision, a court order granting injunctive relief, or other enforcement procedures. The department shall maintain the confidentiality of the hospital records as applicable under state or federal law. (c) By applying for or holding a hospital license, the hospital consents to entry and inspection or investigation of the hospital by the department or a representative of the department in accordance with the Act and this chapter. (d) A hospital is not subject to additional health licensing inspections before the department issues the hospital a license while the hospital maintains: (1) certification under Title XVIII of the Social Security Act 42 United States Code (USC), sec.1395 et seq; or (2) accreditation by the Joint Commission on Accreditation of Healthcare Organizations or by the American Osteopathic Association. (e) The department has the authority to: (1) reinspect a hospital if a hospital applies for the reissuance of its license after the suspension or revocation of the hospital's license, the assessment of administrative or civil penalties, or the issuance of an injunction against the hospital for violations of the Act, this chapter, a special license condition, or an order of the commissioner of health; or (2) investigate a complaint against a hospital and, if appropriate, enforce the provisions of the Act on a finding by the department that reasonable cause exists to believe that the hospital has violated provisions of the Act, this chapter, special license conditions, or orders of the commissioner of health; provided, however, that the department shall coordinate with the federal Health Care Financing Administration and its agents responsible for the inspection of hospitals to determine compliance with the conditions of participation under Title XVIII of the Social Security Act, (42 USC, sec.1395 et seq), so as to avoid duplicate investigations. (f) If an individual wishes to report an alleged violation of the Act or this chapter, the individual shall notify the department by telephone at 1-800-228- 1570 or by writing the department at 1100 West 49th Street, Austin, Texas 78756- 3199, or by personal visit. The department shall inform in writing a complainant who identifies himself by name and address of: (1) the receipt of the complaint; (2) if the complainant's allegations are potential violations of the Act or this chapter warranting an investigation; (3) whether the complaint will be investigated by the department; (4) whether and to whom the complaint will be referred; and (5) the findings of the compliant investigation. (g) The department's representative shall hold a conference with the hospital administrator or designee before beginning the on-site inspection or investigation to explain the nature, scope and estimated time schedule of the inspection or investigation. (h) The department shall fully inform the hospital administrator or designee of the preliminary findings of the inspection or investigation and shall give the person a reasonable opportunity to submit additional facts or other information to the department's authorized representative in response to those findings. The response shall be made a part of the record of the inspection or investigation for all purposes and must be received by the department within ten working days of the hospital's receipt of the preliminary findings. (i) After an inspection or investigation of a hospital by the department, the department's representative shall hold an exit conference with the hospital administrator or designee and other invited staff and provide the following to the hospital administrator or designee: (1) the specific nature of the inspection or investigation; (2) any alleged violations of a specific statute or rule; (3) the specific nature of any finding regarding an alleged violation or deficiency; (4) if a deficiency is alleged, the severity of the deficiency; (5) if there are no deficiencies found, a statement indicating this fact; (6) if requested by the hospital information on the identity, including the signature, of each department representative conducting, reviewing or approving the results of the inspection or investigation and the date on which the department representative acted on the matter; (7) if requested by the hospital, copies of all documents relating to the inspection or investigation maintained by the department or provided by the department to any other state or federal agency that are not confidential under state law; and (8) identity of any records that were duplicated. (j) The surveyor shall: (1) prepare a statement of deficiencies, if any; (2) for deficiencies, obtain a plan of correction which is provided by the hospital and indicates the date(s) by which correction(s) will be made; (3) obtain the signature of the hospital administrator or designee acknowledging the receipt of the statement of deficiencies and plan of correction form; (4) obtain within ten working days of the inspection or investigation, written comments, if any, by the hospital administrator or designee concerning the inspection or investigation. Additional facts, written comments or other information provided by the hospital in response to the findings shall be made part of the record of the inspection or investigation for all purposes; and (5) inform the administrator or designee of the hospital's right to an informal administrative review when there is disagreement with the surveyor's findings and recommendations or when additional information bearing on the findings is available. (k) If deficiencies are cited and the plan of correction is not acceptable, the department shall notify the hospital in writing and request that the plan of correction be resubmitted within ten days of the hospital's receipt of the department's written notice. Upon resubmission of an acceptable plan of correction, written notice will be sent by the department to the hospital acknowledging same. (l) The hospital shall come into compliance by the completion date provided on the statement of deficiencies and plan of correction form or come into compliance at least 30 days prior to the expiration date of the initial license, or annual license, whichever comes first. (m) The department shall verify the correction of deficiencies by mail or by an on-site inspection or investigation. (n) The department may initiate disciplinary action even if a plan of correction is accepted and completed. (o) Inspection and investigation procedures of crisis stabilization units shall comply with Chapter 401, Subchapter K of this title (relating to Rules Governing Licensure of Crisis Stabilization Units). sec.134.72. Audits of Billing. (a) The purpose of this section is to implement the Health and Safety Code, sec.311.0025. This section applies to hospitals and crisis stabilization units. (b) A hospital or crisis stabilization unit shall not submit to patients or third party payors a bill for treatments which are improper, unreasonable or medically or clinically unnecessary or for treatments which were not provided. (c) A complaint relating to billing must specify the patient for whom the bill was submitted. (d) Upon receiving a complaint warranting an investigation, the department shall send the complaint to the hospital or crisis stabilization unit requesting the hospital or crisis stabilization unit to conduct an internal investigation. Within 30 days of the hospital or crisis stabilization unit's receipt of the complaint, the hospital or crisis stabilization unit shall submit to the department: (1) a report outlining the hospital or crisis stabilization unit's investigative process; (2) the resolution or conclusions reached by the hospital or crisis stabilization unit with the patient, third party payor or complainant; and (3) corrections, if any, in the hospital or crisis stabilization unit's policies or protocols which were made as a result of its investigative findings. (e) In addition to the hospital or crisis stabilization unit's internal investigation, the department may also conduct an investigation to audit any billing and patient records of the hospital or crisis stabilization unit. (f) The department shall inform in writing a complainant who identifies himself by name and address: (1) of the receipt of the complaint; (2) if the complainant's allegations are potential violations of the Act or this chapter warranting an investigation; (3) whether the complaint will be investigated by the department; (4) if the complaint was referred to the hospital for internal investigation; (5) whether and to whom the complaint will be referred; (6) of the results of the hospital or crisis stabilization unit's investigation and the hospital or crisis stabilization unit's resolution with the complainant; and (7) of the department's findings if an on-site audit investigation was conducted. (g) The department shall refer investigative reports of billing by health care professionals who have provided improper, unreasonable, or medically or clinically unnecessary treatments or billed for treatments which were not provided to the appropriate licensing agency. sec.134.73. Disciplinary Action. (a) The Texas Department of Health (department) may deny, suspend, or revoke a hospital's license if the department finds that the hospital: (1) has failed substantially to comply with: (A) a provision of the Private Mental Hospital and other Mental Health Facilities Licensing Law, the Health and Safety Code, Chapter 577, (Act) or Chapter 104 and Health and Safety Code, Chapter 225; (B) a provision of Health and Safety Code, Title 7, Subtitle C, Texas Mental Health Code; (C) department rules; (D) a special license condition; (E) an order or emergency order by the commissioner of health; or (F) another enforcement procedure permitted under this chapter; (2) has a history of noncompliance with this chapter relating to patient health, safety, and rights which reflects more than nominal noncompliance; (3) has aided, abetted, or permitted the commission of an illegal act; or (4) has committed fraud, misrepresentation, or concealment of a material fact on any documents required to be submitted to the department or required to be maintained by the hospital pursuant to the provisions of this chapter. (b) The department may deny a license if the applicant or licensee: (1) fails to provide the required application or renewal information; (2) fails to pay administrative penalties in accordance with the Act; or (3) discloses any of the following actions against or by the applicant, or the licensee, or against or by affiliates, or managers of the applicant or the licensee within the two-year period preceding the application: (A) operation of a hospital that has been decertified or had its contract cancelled under the Medicare or Medicaid program in any state; (B) federal Medicare or state Medicaid sanctions or penalties; (C) state or federal criminal convictions which imposed incarceration; (D) federal or state tax liens; (E) unsatisfied final judgments; (F) eviction involving any property or space used as a hospital in any state; (G) unresolved state Medicaid or federal Medicare audit exceptions; (H) denial, suspension, or revocation of a hospital license, a private psychiatric hospital license, or a license for any health care facility in any state; or (I) a court injunction prohibiting ownership or operation of a hospital. (c) Denial of a license includes denial of an initial license, first annual license or a renewal license. (d) The department may suspend or revoke an existing valid license, or disqualify a person from receiving a license because of a person's conviction of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of the ownership or operation of a hospital. (1) In determining the present fitness of a person who has been convicted of a crime, the department shall consider the provisions of Texas Civil Statutes, Article 6252-13c. (2) The following felonies and misdemeanors directly relate because these criminal offenses indicate an ability or a tendency for the person to be unable to own or operate a hospital: (A) a violation of the Act; (B) an offense involving moral turpitude; (C) an offense relating to deceptive business practice; (D) an offense of practicing any health-related profession without a required license; (E) an offense under any federal or state law relating to drugs, dangerous drugs, or controlled substances; (F) an offense under Title 5 of the Texas Penal Code involving a patient or client of a health care facility or agency; (G) an offense under various titles of the Texas Penal Code: (i) Title 5 concerning offenses against the person; (ii) Title 7 concerning offenses against property; (iii)Title 9 concerning offenses against public order and decency; (iv) Title 10 concerning offenses against public health, safety, and morals; or (v) Title 4 concerning offenses of attempting or conspiring to commit any of the offenses in this subsection; or (H) other misdemeanors or felonies which indicate an inability or tendency for the person to be unable to own or operate a hospital if action by the department will promote the intent of the Act, this chapter, or Texas Civil Statutes, Article 6252-13c. (3) Upon a licensee's felony conviction, felony probation revocation, revocation of parole, or revocation of mandatory supervision, his license shall be revoked. (e) If the department proposes to deny, suspend, or revoke a license, the department shall notify the applicant or the hospital by certified mail, return receipt requested, of the reasons for the proposed action and offer the applicant or hospital an opportunity for a hearing. The applicant or hospital must request a hearing within 30 days of receipt of the notice. The request must be in writing and submitted to the Hospital Licensing Director, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3199. A hearing shall be conducted pursuant to the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a Government Code, Chapter 2001, and the department's formal hearing procedures in Chapter 1 of this title (relating to Texas Board of Health). If the applicant or hospital does not request a hearing, in writing, within 30 days of receipt of the notice or does not appear at a scheduled hearing, the applicant or hospital is deemed to have waived the opportunity for a hearing and the proposed action shall be taken. Receipt of the notice is presumed to occur on the tenth day after the notice is mailed to the last address known to the department unless another date is reflected on a United States Postal Service return receipt. (f) The department may suspend a license to be effective immediately when the health and safety of persons are threatened. The department shall notify the hospital of the emergency action by certified mail, return receipt requested, or personal delivery of the notice and of the date of a hearing, which shall be within ten days of the effective date of the suspension. The effective date of the emergency action shall be stated in the notice and shall be for a period of no longer than ten days. The hearing shall be conducted pursuant to the Administrative Procedure Act, the Government Code, Chapter 2001 and the department's formal hearing procedure. (g) If a person violates the licensing requirements of this Act, the department may petition the district court to restrain the person from continuing the violation. (h) If the department suspends a license, during the time of suspension, the suspended license- holder shall return his or her license to the department. (i) If a suspension overlaps a renewal date, the suspended license holder may comply with the renewal procedures in this chapter; however, the department may not renew the license until the department determines that the reason for suspension no longer exists. (1) If the department revoked or did not renew a license, the department may refuse to issue a license if the reason for revocation or nonrenewal continues to exist. (2) Upon revocation or nonrenewal, a license holder shall return the license to the department. (j) A hospital whose license is suspended or revoked may apply to the department for the reissuance of a license. A hospital must apply for reissuance according to sec.134.11 of this title (relating to Application and Issuance of Initial License for First-Time Applicants). The department may reissue the license if the department determines that the hospital has corrected the conditions that led to the suspension or revocation of the hospital's license. (k) Disciplinary action against the license of a crisis stabilization unit shall comply with Chapter 401, Subchapter K of this title (relating to Rules Governing Licensure of Crisis Stabilization Units). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 6, 1994. TRD-9438707 Susan K. Steeg General Counsel Texas Department of Health Effective date: May 2, 1994 Proposal publication date: November 2, 1993 For further information, please call: (512) 834-6645 Subchapter F. Internal Investigation 25 TAC sec.134. 91 The new section is adopted under the Health and Safety Code, Chapter 577, which provides the Texas Board of Health (board) with authority to adopt rules to establish and enforce minimum standards for the licensing of psychiatric hospitals and crisis stabilization units; 161, 164, 311, 313, 321 relating to abuse, neglect and unprofessional or unethical conduct in health care facilities; treatment facilities marketing and admission practices; health care facility surveys, and provision of mental health, chemical dependency and rehabilitation services; construction, inspection, and regulation; powers and duties of hospitals; cooperative agreements; and sec.12. 001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health. sec.134.91. Complaints Against the Department. (a) A hospital or crisis stabilization unit may register with the division a complaint against a division surveyor who conducts an inspection or investigation. (b) A complaint against a surveyor shall be registered with the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3199, (512) 834-6650 or 1-800-228-1570. (1) A complaint against a surveyor which is received by telephone will be referred within two working days to the appropriate supervisor. The caller will be requested to submit the complaint in writing to the department. (2) When a complaint is received in writing, it will be forwarded to the appropriate supervisor within two working days. Within ten calendar days of receipt of the complaint, the division will inform the complainant in writing that their complaint has been forwarded to the appropriate supervisor. (3) Within 10 calendar days of the supervisor's receipt of the complaint, the supervisor will notify the complainant in writing that an investigation will be done. (4) The supervisor will review the documentation in the survey packet and interview the surveyor identified in the complaint to obtain facts and assess the objectivity of the surveyor in the surveyor's application of this chapter during the hospital's inspection or investigation. (5) The supervisor will review the applicable rules, personnel policies, and review the training and qualifications of the surveyor as it relates to the inspection or investigation. (6) The supervisor will document the investigation. A report of the investigation will be placed in the hospital's file, if the complaint and investigation affected the inspection process. A counseling form will be used and placed in the surveyor's personnel file, if the complaint relates to personnel performance. (7) The supervisor will offer to meet with the complainant to resolve the issue. The surveyor identified in the complaint will participate in the discussion. The resolution meeting may be conducted at the division's office or during an on-site follow-up visit to the hospital. (8) Changes and deletions will be made to the inspection report, if necessary. (9) The supervisor will notify the complainant in writing of the status of the investigation within 30 days of the date the supervisor received the complaint. (10) The supervisor will forward all final documentation to the director and notify the complainant of the results. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 6, 1994. TRD-9438708 Susan K. Steeg General Counsel Texas Department of Health Effective date: May 2, 1994 Proposal publication date: November 2, 1993 For further information, please call: (512) 834-6645 Chapter 141. Massage Therapists 25 TAC sec.sec.141.1-141. 6, 141.8, 141.10-141.13, 141.15-141.20, and 141.23 The Texas Department of Health (department) adopts amendments to sec.sec.141.1-141.6, 141.8, 141. 10-141.13, and 141.15-141.20, and new sec.141.23. Sections 141.1, 141.2, 141.4, 141.8, 141.11, 141.13, 141.15, 141.17, 141.18 and new 141.23 are adopted with changes to the proposed text as published in the November 9, 1993, issue of the Texas Register (18 Tex Reg 8105). Sections 141.3, 141.5, 141.6, 141. 10, 141.12, 141.16, 141.19, and 141.20 are adopted without changes and will not be republished. The amendments implement the provisions of Senate Bill 674, 73rd Legislature, Regular Session, 1993, and update existing sections. The amendments amend the definitions: increase registration fees; add consumer information provisions; add criminal convictions related to the profession of massage therapy; and various minor changes which clarify meaning without substantial change, improve grammar and style, and clarify inconsistencies in the rules. The new section establishes procedures for massage schools and independent massage instructors to register to offer continuing education courses only. The following comments were received concerning the proposed sections. Comment. Concerning the definition of "massage therapy" in sec.141.1, a commenter stated it was not clear if aromatherapy that is not utilized via massage or direct contact is included in the definition. Response. If the therapy does not involve the manipulation of soft tissue, it would not be massage therapy. Comment. Concerning sec.141.1, a commenter requested that a definition of "student" be added. Response. The department disagrees. Adding a definition of student would allow some massage-related instruction to be exempt from regulation. This is not within the legislative intent. No changes were made as a result of the comment. Comment. Concerning sec.141.1, a commenter wanted to add Tellington Touch to the list of practices that constitute massage therapy. Response. The department agrees and added the term. The reference to "Traeger" was corrected to read "The Trager Method". Comment. Concerning sec.141.1, a commenter stated reflexology is not the practice of massage therapy and asked it be exempted from regulation. Response. The department, with the advice of the advisory council, has determined that the practice of reflexology involves the manipulation of soft tissue and therefore, is the practice of massage therapy. No change was made as a result of the comment. Comment. A number of commenters stated reflexology should be included in the definition of massage therapy in sec.141.1. Response. The department concurs. Comment. A commenter stated the definition of massage therapy in sec.141.1 should be changed so that massage therapists be allowed to perform health care services for therapeutic purposes only under the written recommendation of a licensed physician. Response. The department disagrees. The statutory language of Texas Civil Statutes, Article 4512k, sec.10(e), allows massage therapists to receive referrals from physicians but does not require such referrals. No changes were made as a result of the comment. Comment. A commenter requested the words "myofascial release" and "cranial sacral therapy" be deleted from the definition of massage therapy in sec.141.1 because these osteopathic manipulation techniques should not be included within the scope of practice of any health care practitioners other than a physician or surgeon who holds a license to practice medicine. Response. After discussion between the department's advisory council on massage therapy, representatives of the professional osteopathic association, educators, and department staff, the terms have been deleted. Further study and discussion is required in regard to the meaning, scope and use of the questionable terms. The department staff anticipates that further clarification will be presented to the Board of Health at a later meeting after discussion with the council and the association. Comment. Concerning sec.141.2(m)(3) a commenter asked how often the roster would be published because updated lists assist continuing education providers in mailouts. Response. The language reflects the statutory language in Texas Civil Statutes, Article 4512k, sec.9(c). The department updates rosters throughout the year. Comment. Concerning sec.141.4(b)(2), a commenter stated the amendment appears to remove the notification provision and eliminate any deadline for the department. Response. The paragraph has been reworded to show that the department has a written policy setting examination deadlines. Comment. Concerning sec.141.5(b)(3), several commenters recommended changing the out-of-state practice requirement from five years to three years. Response. The department disagrees. The statutory language of Texas Civil Statutes, Article 4512k, sec.2(b)(3), requires five years of practice. Comment. Concerning sec.141.5(b)(3), a commenter stated the rules should include the requirements for proof of out-of-state practice. Response. The department disagrees. The requirements are set out in sec.141. 4(c)(4). Comment. Concerning sec.141.11(f)(5) and (6), a commenter recommended the words "massage therapy" be deleted and substitute basic or additional program only at a registered school. Response. The subsection has been reorganized to improve clarity; however, the department disagrees with the recommended wording change because it was the intent of the legislature that the department regulate all massage therapy courses including seminars and workshops. Comment. Concerning sec.141.11(f), a commenter asked why school-based instructors are limited to a school while independent massage therapy instructor's (MTI) can teach in both settings. Response. Independent MTI's are accountable as schools under this chapter. It would be unduly burdensome and duplicative for school-based MTIs to meet all the requirements of schools. The registered school is responsible for compliance with the majority of the minimum standards as is the independent MTI. Comment. Concerning sec.141.11(f), a commenter opposed the rewording of the paragraph as proposed because it discriminates against school-based massage therapy instructors and prevents the use of substitute teachers. Response. Texas Civil Statutes, Article 4512k, prevents non-MTIs from teaching massage therapy courses. Any registered MTI could substitute at any registered school. Individuals meeting the criteria set out at sec.141.13(b)(1) (B)(iii) could instruct in the other courses required for registration. Comment. Concerning sec.141.13(b)(1)(B)(ii)(II), several commenters agreed with the wavier of the two-year experience requirement as a massage therapist for other licensed health care professionals. They stated the proposed amendments would increase the pool of qualified instructors. Schools directors would select competent trained instructors. Response. The department agrees. Comment. Concerning sec.141.13(b)(1)(B)(i) and (ii), a commenter agreed with the proposed amendments because it would allow schools to train instructors; encourage uniform teaching application within the school; and allow other professionals to teach different soft tissue modalities. Response. The department agrees; however, clause (i) was reworded to clarify the intent of the legislature to regulate all massage instruction, not just Swedish massage, and a MTI must be a registered massage therapist not just having a temporary registration. Comment. Concerning sec.141.13(b)(1)(B)(ii)(II) a commenter recommended adding "licensed" before the words "athletic trainers" so that personal trainers do not qualify. Response. The department disagrees because it would be redundant. The proposed wording requires all health care professionals listed to hold a current license. No change was made as a result of the comment. Comment. A commenter opposed waiver of the two years of practice as a massage therapist for licensed professionals in sec.141.13(b)(1)(B)(ii)II). Response. The department disagrees. These individuals are licensed in other health care professions that may use massage therapy as part of the scope of practice. These individuals must be registered as massage therapists and massage therapy instructors but are not required to have the two years of practice. The department believes this combination of credentials provides the desired practical experience for instructors. Comment. Concerning sec.141.13(b)(1)(B)(ii)(I), a commenter asked if out-of- state experience as a massage therapist can be used to become an MTI. Response. Out-of-state experience can be used if it is documented as required in sec.141.4(c)(4). Comment. A commenter asked if assistants can receive credit toward the two years of practice for assisting a massage therapy instructor prior to the effective date of sec.141.13(b)(1)(C). Response. If the assistant is instructing massage therapy without the required MTI registration, such instruction would be in violation of the law. No credit will be given for such instruction. No credit will be given for assisting instruction. The two years must be actual practice as a massage therapist. Comment. Concerning sec.141.13(b)(1)(B)(ii)(II), a commenter recommended deleting the words "in this state." Response. The department concurred and has deleted the words. Comment. A commenter asked why "Swedish" was being deleted in sec.141.13(b) (1)(B)(i). Response. The change was made to clarify the intent of the legislature to regulate all massage instruction, not just Swedish massage. The sentence was rewritten to clarify the department's intent. Comment. Concerning sec.141.15(m)(1)(G) a commenter stated the proposed wording would force other health care professionals to employ a massage therapist to be exempt from establishment registration requirements. Response. It was not the department's intent to force employment of massage therapists if the professional is allowed to do massage activities under his or her license. The paragraph was reworded to clarify meaning. Comment. Concerning sec.141.15(m)(1)(K) and (L), several commenters opposed exempting barber shops and beauty shops from registration as massage establishments. Response. The department disagrees. These businesses are regulated by other state agencies. The requirement to register as an massage establishment would be dual regulation and unreasonably burdensome to businesses required to comply. Comment. Concerning sec.141.17(d)(1), a commenter stated massage therapists do not have the educational background required to be a health care professional. Response. The department disagrees. The department is a health licensing agency and massage therapy is a health-related field. sec.141.17(d)(2) was reworded to clarify that the term "health care professional" includes massage therapist when used in subsection (d) relating only to advertising. Comment. Commenters stated that sec.141.17(d) unnecessarily duplicates the Texas Business and Commerce Code, sec.17.46; and restricts freedom of speech allowed in the Constitution. Response. These requirements are imposed by Texas Civil Statutes, Article 4512p, sec.4. The department is simply informing registrants of this new law. Comment. A commenter stated sec.141.17(d)(1)(F)and (G) should be in the Insurance Code, not this section. Response. These requirements are imposed by Texas Civil Statutes, Article 4512p, sec.4. The department is simply informing registrants of this new law. Comment. Concerning sec.141.17(d)(1)(H), a commenter stated the language is too vague. Response. The subparagraph reflects the statutory language in Texas Civil Statutes, Article 4512p, sec.4. Comment. Concerning sec.141.18(f), a commenter stated that rules governing reimbursement issues are more appropriately addressed under the Insurance Code. Response. These requirements are imposed by Texas Civil Statutes, Article 4512p, sec.4. The department is simply informing registrants of this new law. Comment. Regarding sec.141.23(d)(1)(B), a commenter suggested amending the subparagraph to allow registered schools with a permanent location to hold workshops in public meeting rooms. Response. The department agrees and amended the subparagraph. Comment. Concerning proposed sec.141.23(d)(2), a commenter asked what criteria determines "sufficient background and training" for school directors. Response. The department agrees the sentence is too vague and has deleted the language. Directors must meet the criteria in sec.141.13(b)(1)(A). Comment. A commenter suggested deleting the first sentence in sec.141.23(a) requiring workshops to be offered only by registered schools or independent MTIs. Response. The department disagrees because the legislature intended the department to regulate those hours. A sentence was added to exempt professional association conventions from registration of their sessions covered by a single registration fee. Comment. Several commenters stated sec.141.23 is beyond the scope and authority of the department to regulate. As proposed, it would require approval of conferences and conventions. Response. The legislature intended all massage institutions to be regulated. This section creates less stringent standards for seminars and workshops than apply to other programs. It will make it easier to obtain seminar and workshop approval. Subsection (a) was amended to exempt certain professional association conventions from registration under these rules. Comment. Concerning sec.141.23, a commenter recommended that all professional associations, agencies and individuals providing massage seminars and workshops be exempt from registration. Response. The legislature intended for massage instruction to be regulated by the department. The section, as amended, does not prohibit conferences and conventions, but does require approval if a part is offered as a seminar or workshop for which a separate charge is made and the instruction is massage- related. Comment. A commenter asked that animal massage be added to the scope of practice. Response. The department disagrees. Texas Civil Statutes, Article 4512k (Act), references massage of a "patron" which was intended to be a human person. The Act is not intended to cover massage on animals. Some editorial changes were made to clarify meaning. The proposed rules did include typographic errors. The errors were acknowledged and notice of correction to the proposed rules as filed and published in the December 7, 1993, issue of the Texas Register (18 TexReg 9118). A public hearing was held on December 20, 1993. The hearing was held at the request of the Texas Osteopathic Medical Association, Texas Physical Therapy Association, and American Massage Therapists Association. The comments were neither for nor against the sections in their entirety; however they raised questions and concerns. The comment period was extended through January 7, 1994. Comments were received from the above associations and numerous individuals. The amendments and new section are adopted under Texas Civil Statutes, Article 4512k, sec.7, which provide the Texas Board of Health with the authority to adopt rules concerning the regulation and registration of massage therapists, massage instructors, massage schools, and massage establishments; and the Health and Safety Code, sec.12.001, which provides the Texas Board of Health with 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 sections implement the Texas Civil Statutes, Article 4512k, relating to massage therapists. sec.141.1. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Additional program -A program for compensation offering instruction related to massage therapy beyond the course of instruction required for registration. This does not include instruction of purely avocational or recreational subjects. Hydrotherapy-The use of generally accepted methods of external application of water for its mechanical, thermal, or chemical effect. Massage therapy -The manipulation of soft tissue. The term includes, but is not limited to effleurage (stroking), petrissage (kneading), tapotement (percussion), compression, vibration, friction, nerve strokes, and Swedish gymnastics, either by hand or with mechanical or electrical apparatus for the purpose of body massage. Massage therapy may include the use of oil, salt glows, heat lamps, hot and cold packs, or tub, shower, or cabinet baths. Equivalent terms for massage therapy are massage, therapeutic massage, massage technology, myo-therapy, body massage, body rub, or any derivation of those terms. Massage therapy is a health care service when the massage is for therapeutic purposes. The terms "therapy" and "therapeutic" do not include diagnosis, the treatment of illness or disease, or any service or procedure for which a license to practice medicine, chiropractic, physical therapy, or podiatry is required by law. Massage therapy does not constitute the practice of chiropractic. Massage therapy includes any discipline not otherwise licensed by the state which practices manipulation of soft tissue including reflexology, Rolfing, Tellington Touch on humans, and The Trager Method. Massage therapy does not include Therapeutic Touch and Rieki. Seminars and workshops-Continuing education programs of 55 clock hours or less in duration which serve to enhance an individual's career rather than to develop basic skills and fundamental knowledge required for entry into the field of massage therapy. This includes continuing professional education and organized review for the department's massage therapy examination. This does not include seminars and workshops for which no charge is made. State-approved educational institution-An institution which is approved by the Texas Education Agency or which is an institution of higher education as defined the Texas Codes Annotated, Texas Education Code, Chapter 51 or a higher education institution approved by a similar agency in another state. Swedish massage therapy techniques-The manipulation of soft tissue utilizing effleurage (stroking), petrissage (kneading), tapotement (pressure), compression, vibration, friction, nerve stroke, and Swedish gymnastics. sec.141.2. The Advisory Council. (a)-(f) (No change.) (g) Transaction of official business. (1)-(2) (No change.) (3) The latest edition of "Roberts Rules of Order" shall be the basis of parliamentary decision except where otherwise provided by these rules. (h)-(l) (No change.) (m) Tasks and charge. (1) The Advisory Council on Massage Therapy (council) shall recommend to the Texas Board of Health (board) rules to implement Texas Civil Statutes, Article 4512k (Act). (2) The council shall prescribe application forms and registration fees through the recommended rules. (3) The council shall keep a complete record of all registered massage therapists and shall annually prepare a roster showing the names and addresses of all registered massage therapists. (4) The council shall advise the Texas Board of Health (board) concerning rules relating to the definition of "unprofessional conduct." (5) The council shall advise the Texas Department of Health (department) concerning the course of instruction required for registration and examination guidelines. (6) These tasks shall be performed with the assistance of the department. (n) The council and the department shall not be bound in anyway by any statement or action on the part of any council member except when a statement or action is in pursuance of specific instructions of the council or department. sec.141.4. Massage Therapist Application Procedures. (a) (No change.) (b) General. (1) (No change.) (2) The Texas Department of Health (department) must receive all required application materials on or before the deadline prior to each examination set by written department policy in order to be able to take that examination. (3)-(4) (No change.) (c) (No change.) sec.141.8. Massage Therapist Determination of Eligibility. (a) -(b) (No change.) (c) An application for a registration shall be disapproved if the person has: (1)-(5) (No change.) (6) been convicted of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a registered massage therapist as set out in sec.141.19 of this title (relating to Registration of Persons with Criminal Backgrounds); (7) practiced or administered massage therapy at or for a sexually-oriented business; or (8) violated any provision of state law relating to the practice of massage therapy or to the practice of a health care profession. (d) (No change.) sec.141.11. General Requirements for Massage Schools and Massage Therapy Instructors. (a)-(b) (No change.) (c) Financial stability. (1)-(5) (No change.) (6) All financial statements must identify the name of the independent public accountant or certified public accountant who prepared the statements and be in accordance with generally accepted accounting principles. Reviews and compilations must be accompanied by the owner's or independent massage therapy instructor (MTI)'s affidavit that the statements are true and correct. (d) (No change.) (e) Additional programs. (1)-(5) (No change.) (6) An application shall include notification to the Texas Department of Health (department) of which portions of the additional program will or may be offered as a seminar or workshop. (A) (No change.) (B) If the seminar or workshop was approved as part of an additional program, the seminar or workshop is governed by the rules applicable to additional programs. Separately approved seminars or workshops are governed by sec.141.23 of this chapter (relating to Seminars and Workshops). (f) MTI. (1) Any individual teaching massage therapy in a massage school or independently must be a registered MTI. (2) The department shall designate each registered MTI as an independent MTI, a school-based MTI, or both based on the application filed with the department. (3) A registered MTI may teach all subjects within the initial program. (4) An MTI desiring to teach an initial or additional program independent of a massage school must be registered as a independent MTI and shall meet the same requirements of this chapter as required of massage schools. (5) An independent MTI may teach massage therapy in a registered massage school or independent of a massage school in accordance with this chapter. (6) A school-based MTI may only teach massage therapy at any registered massage school(s). (g)-(p) (No change.) sec.141.13. Minimum Standards for Operation of Massage Schools and Massage Therapy Instructors. (a) (No change.) (b) Each massage school and massage therapy instructor (MTI) shall comply with the following standards. (Each MTI shall comply with the standards as applicable to the MTI's type of instruction, i.e., within a massage school or independent of a school). (1) Personnel. (A) (No change.) (B) Instructors. (i) A registered MTI shall instruct the 125 hours of Swedish massage therapy in the required course of instruction and the massage therapy portion of any additional program or workshop or seminar. In order to become a registered MTI, a person shall be a registered massage therapist (not a temporary registration), and shall have: (I) a high school diploma, a general equivalency diploma or a transcript from an accredited college or university showing successful completion of at least 12 semester hours; and (II) attended a course on teaching adult learners or demonstrating competency in teaching adult learners. Courses attended may include an instructional certification program, a college level course in teaching adult learners, a continuing education course in teaching adult learners, or an additional program approved by the department in teaching the course of instruction. Demonstrated competency in teaching adult learners may be verified by a letter of reference. Teaching experience may include formal or informal teaching of varied subjects to adult learners. (ii) A registered MTI without the experience described in this clause shall only instruct when another registered MTI with such experience is present. An MTI with the following experience need not have another MTI present during instruction: (I) a minimum of two years of practice as a massage therapist. Completion of ten0 hours beyond the initial program at a proprietary school approved by the central education agency, at a state-approved educational institution, or in an additional program approved by the Texas Department of Health (department) may be substituted for six months experience with a maximum substitution of 200 hours for one year; or (II) an individual who holds a current license as a physician, chiropractor, physical therapist, registered nurse, occupational therapist, licensed vocational nurse, or athletic trainer is exempt from the requirement for two years of practice as a massage therapist. (iii) Qualified personnel may participate as instructors. The instructor shall have attended a course on teaching adult learners, or have demonstrated competency in teaching adult learners. Instructors other than an MTI shall have one of the following specific qualifications. (I) An instructor must hold a baccalaureate or higher degree from an accredited college or university, and: (-a-) the baccalaureate or higher degree or other coursework must include satisfactory completion of nine semester hours or 12 quarter hours in subjects related to the subject area to be taught; or (-b-) the instructor must have a minimum of one year of practical experience within the last ten years in the subject area to be taught. (II) An instructor must hold an associate degree from an accredited college, university, or recognized postsecondary institution, and: (-a-) the instructor must have a minimum of one year of practical experience within the last ten years in the subject area to be taught and the associate degree must include satisfactory completion of nine semester hours or 12 quarter credit hours in subjects related to the subject area to be taught; or (-b-) the instructor must have a minimum of two years of practical experience within the last ten years in the subject area to be taught. (III) An instructor must hold a high school diploma, general equivalency degree (GED), or proof of satisfactory completion of relevant subject(s) from a recognized postsecondary institution or practical experience of a minimum of two years within the last ten years in the subject area to be taught. (iv) Each instructor shall be evaluated by the school annually. The report of the evaluation shall be available for review by the department. (v) The school shall ensure continuity of instruction through the reasonable retention of qualified instructors. (C) Assistants. (i) A person who is not a registered MTI may assist in instruction if the person: (I) is a registered massage therapist (not a temporary registration); (II) has a high school diploma, a general equivalency diploma, or a transcript from an accredited college or university showing successful completion of at least 12 semester hours; and (II) is supervised (physical presence) by a registered MTI meeting the experience requirements in subparagraph (B)(ii) of this paragraph. (ii) No department approval or registration is required for an assistant. (iii) An assistant can not teach the 125 hours of massage therapy techniques or the 50-hour internship in the course of instruction but may assist the registered MTI teaching those hours. An assistant may teach other courses without a supervising MTI only if the assistant meets the qualifications for other instructors in subparagraph (B) (iii) of this paragraph. (2)-(4) (No change.) (5) Cancellation and refund policy. (A) General. Each school and independent MTI shall develop and implement a cancellation and refund policy as described in this paragraph. The policy must provide a full refund of all monies paid by a student if: (i)-(ii) (No change.) (B) Refunds. The policy must provide for the refund of the unused portion of tuition, fees, and other charges in the event the student, after expiration of the 72-hour cancellation privilege, fails to enter, withdraws from, or is terminated from the program at any time prior to completion. The policy must provide that: (i)-(iii) (No change.) (iv) if a student enters a program not more than 18 months in length and is terminated or withdraws, the school or independent MTI may retain $200 of tuition and the minimum refund of the remaining tuition will be: (I)-(VI) (No change. ) (v)-(viii) (No change.) (C) Computations. In all refund computations, leaves of absence, suspensions, school holidays, days when classes are not offered, and summer vacations shall not be counted as part of the elapsed time for purposes of calculating a student's refund. (D) Evidence of refund attempts. A massage school or independent MTI is considered to have made a good faith effort to consummate a refund if the student's file contains evidence of the following attempts: (i) certified mail to student's last known address; (ii) certified mail to the student's permanent address; and (iii) certified mail to the address of the student's parent(s), if different from the permanent address and if known. (E) Audit. If the department determines that the method used by the massage school or MTI to calculate refunds is not in compliance with this section and if the massage school or MTI does not provide the correct refund promptly, the massage school or MTI shall submit a report of an audit conducted by a certified public accountant or public accountant registered with the State Board of Public Accountancy of the refunds due former students. The audit opinion letter shall be accompanied by a schedule of student refunds due which shall disclose the following information for the previous four years for each former student: (i) the name, address(es), and social security number; (ii) the last date of attendance and date of termination; (iii) the amount of refund with principal and interest separately stated, date and check number of payment if payment has been made, and any balance due; and (iv) the reason for refund. (F) Disciplinary action. The department may revoke or suspend a massage school or an MTI's registration for a violation of this subsection; however, the department has no authority to recover a refund on behalf of a student. (6)-(7) (No change.) (8) Minimum progress and attendance standards. (A) Progress. Appropriate standards must be implemented to ascertain the progress of the students enrolled. Progress standards must meet the following requirements. (i)-(ii) (No change.) (iii) A massage school or MTI shall develop and implement a written policy relating to grading period. A grading period will not cover more than 25% of the required program hours. (iv) A student who is making unsatisfactory progress at the end of a grading period shall be placed on probation for the next grading period. If the student on probation achieves satisfactory progress for the subsequent grading period but has not achieved the required grades to achieve overall satisfactory progress for the program, the student may be continued on probation for one more grading period. (v) When a student is placed on probation, that student will be counseled prior to returning to class, and the date, action taken, and terms of the probation shall be clearly indicated on the appropriate permanent records. (vi) If the student on probation fails to achieve satisfactory progress for the first probationary grading period, the student's enrollment may be terminated. (vii) The enrollment of a student who fails to achieve overall satisfactory progress for the program at the end of two successive probationary grading periods shall be terminated. (viii) A student whose enrollment was terminated for unsatisfactory progress may reenter after a minimum of one grading period. (ix) The cancellation and refund policy required by this section shall apply to a student terminated under this paragraph. The effective date of termination for purposes of refunds shall be the last day of the last probationary grading period. (x) A student who returns after the enrollment was terminated for unsatisfactory progress shall be placed on probation for the next grading period. The student shall be advised of this action and the student's file documented accordingly. If the student does not maintain satisfactory progress during or at the end of this probationary period, that student will be terminated. (B) (No change.) (9)-(19) (No change.) sec.141.15. Massage Establishment Registration and Renewal. (a) -(b) (No change.) (c) An applicant must file a registration statement with the Texas Department of Health (department). The registration statement shall contain: (1)-(5) (No change.) (6) the number of the valid sales tax permit issued to the massage establishment, if a sales tax permit is required for the establishment; (7) the type of available or proposed facilities and services as follows: (A) (No change.) (B) the inspection report of the local fire marshal. If the document is not required, submit a letter from the county attorney or city official so stating. (C) (No change.) (8) (No change.) (d)-(l) (No change.) (m) Exempt organizations and exemption procedures are as follows. (1) The following establishments are specifically exempt from the provisions of the Texas Civil Statutes, Article 4512k (Act), regulating massage establishments: (A) (No change.) (B) a registered massage therapist who practices as a solo practitioner in that therapist's legal name or uses an assumed name if the person's legal name or massage therapy registration number is used in any advertisement or presentation of the assumed name; (C)-(F) (No change. ) (G) the office of a physician, chiropractor, physical therapist, or member of another similar licensed profession as determined by the department where the professional is practicing within the scope of the license. This exemption applies where the professional uses a registered massage therapist to practice massage therapy in the professional's office or where the professional has authority to delegate tasks under the professional's licensing law; (H)-(I) (No change.) (J) a registered massage therapy school in compliance with the Act; (K) a beauty shop in compliance with Texas Civil Statues, Article 8451a; or (L) a barber shop in compliance with Texas Civil Statues, Article 8407a. (2)-(3) (No change.) (4) The commissioner of health or his/her designee will make the final decision and provide written notification of his decision to the applicant and the administrator. (n)-(p) (No change.) sec.141.17. Advertising. (a)-(c) (No change.) (d) A registrant shall not use advertising that is false, misleading, or deceptive or that is not readily subject to verification. (1) False, misleading, or deceptive advertising or advertising that is not readily subject to verification includes advertising that: (A) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading; (B) makes a representation likely to create an unjustified expectation about the results of a health care service or procedure; (C) compares a health care professional's services with another health care professional's services unless the comparison can be factually substantiated; (D) contains a testimonial; (E) causes confusion or misunderstanding as to the credentials, education, or registration of a health care professional; (F) advertises or represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided if the deductibles or copayments are required; (G) advertises or represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required; (H) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient; or (I) advertises or represents in the use of professional name, a title or professional identification that is expressly or commonly reserved to or used by another profession or professional. (2) A "health care professional" as used in this subsection includes a registered massage therapist, temporary massage therapist, or any other person licensed, certified, or registered by the state in a health-related profession. (e) When an assumed name is used in a person's practice as a massage therapist or massage establishment, the legal name or registration number of the massage therapist must be listed in conjunction with the assumed name. An assumed name used by a massage therapist must not be false, deceptive, or misleading. sec.141.18. Unprofessional Conduct. (a)-(d) (No change.) (e) On the written request of a client, a client's guardian, or a client's parent if the client is a minor, a registrant shall provide, in plain language, a written explanation of the charges for massage services previously made on a bill or statement for the client. This requirement applies even if the charges are to be paid by a third party. (f) A registrant may not persistently or flagrantly overcharge or overtreat a client. (g) A registrant shall be subject to disciplinary action by the Texas Department of Health (department) if the registrant is issued a public letter of reprimand, is assessed a civil penalty by a court, or has an administrative penalty imposed by the attorney general's office under the Crime Victims Compensation Act, Texas Civil Statues, Article 8309-1. (h) The following disclosure shall be provided. (1) A registrant shall notify each client of the name, mailing address, and telephone number of the department for the purpose of directing complaints to the department by providing notification: (A) on each written contract for services of a registrant; (B) on a sign prominently displayed in the primary place of business of each registrant; (C) in a bill for service provided by a registrant to a client or third party; or (D) by other written and documented method. (2) The registrant may use a different notification method listed in paragraph (1) for each client. sec.141.23. Seminars and Workshops. (a) A seminar or workshop may only be offered by a registered massage school or independent massage therapy instructor (MTI). This section applies to activities separately approved as a seminar or workshop and not as part of an approved additional program. Activities included in the single registration fee for a convention of a professional association or its state equivalent are not considered seminars or workshops except for sessions at the convention for which there is a separate charge and which involve massage therapy. (b) A registered massage school or independent MTI must submit a seminar and workshop application for approval of each seminar or workshop which has not previously been approved as part of any additional program. (c) A seminar and workshop sponsor which is not yet registered shall submit to the department the application form, appropriate fee, and the application documentation required for registration as a massage school or independent MTI in sec.141.11 of this title (relating to General Requirements for Massage Schools and Massage Therapy Instructors) and sec.141.13 of this title (relating to Minimum Standards for Operation of Massage Schools and Massage Therapy Instructors) except as those requirements are modified by this section. (d) The following modification of sec.141.13 of this title apply to seminars and workshops. (1) Location. (A) A massage school or independent MTI with a permanent location shall submit: (i) a certificate of occupancy and current fire inspection certificate. If the documents are not required by the local political subdivision, submit a letter from the county attorney or city official so stating; (ii) a rental or lease agreement for the physical site of the seminar or workshop if the site is not owned by the applicant; if owned, a statement to that effect; (iii) a rental or lease agreement for any equipment not owned by the applicant; if all equipment is owned, a statement to that effect; (iv) a description and floor plan of the site, including room numbers, dimensions of rooms, pupil capacities, and uses of rooms; and (v) an inventory of furniture, equipment and instructional aids. (B) A massage school or independent MTI shall submit a rental or lease agreement for the meeting room stating capacity, furniture, and equipment furnished for the seminar and workshop. (C) No further location approval is required. (2) Admission requirements. The massage school or independent MTI shall submit specific justification for its entry requirements for each seminar and workshop. (3) Minimum Standard Exemptions. A massage school or independent MTI offering only seminars and workshops does not need to maintain or provide: (A) a progress evaluation system; (B) an attendance policy; (C) a leave of absence policy; (D) student records and transcripts permanently; (E) a grievance policy; (F) documentation of previous education and training; (G) pre-enrollment information, receipt, and acknowledge set out in sec.141.13(b)(2)(D)-(F) of this title (relating to Minimum Standards for Operation of Massage Schools and Massage Therapy Instructors). (4) Cancellation and refund policy. The cancellation and refund policy shall provide for a ten% refund of all tuition and fees paid if the participant cancels at least four weeks before the first day of the seminar or workshop. Refunds for cancellation made in less than four weeks shall be determined by the massage school or independent MTI and provided in the application and on all advertising materials. (e) A seminar or workshop shall be of such quality, content, and length that it reasonably and adequately imparts to a student the necessary skills or knowledge required for the stated objective. (f) A seminar and workshop may give only a final examination at the end of the program to determine whether the participant has the knowledge to warrant a certificate of completion. (g) An application shall be approved or disapproved as in sec.141.16 of this title (relating to Determination of Eligibility of Massage Therapy Instructors, Massage Schools, and Massage Establishments). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 5, 1993. TRD-9438676 Susan K. Steeg General Counsel Texas Department of Health Effective date: April 26, 1994 Proposal publication date: November 9, 1994 For further information, please call: (512) 458-7236 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part II. Texas Parks and Wildlife Department Chapter 53. Finance License Fees and Boat and Motor Fees 31 TAC sec.53.8 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing held March 24, 1994, adopted sec.53.8, concerning License Fees and Motor Boat Fees, without changes to the proposed text as published in the February 18, 1994, issue of the Texas Register (19 TexReg 1169). The rule provides a means by which fishermen can retain a trophy-sized tarpon while setting the fee at a level necessary to protect tarpon stocks. The tarpon tag fee and duplicate tarpon tag fee, as adopted, would serve both to regulate the take of tarpon and to allow lawful possession of trophy-sized tarpon. An angler in possession of a valid tarpon tag, or duplicate tarpon tag, could retain a single tarpon, per license year, of 80 inches or greater total length. Currently, tarpon of all sizes may not be retained. Nine individuals commented in opposition to the proposal for a $100 tarpon tag. In each case, those individuals commenting believed that the fee of $100 was excessive. No associations or groups spoke in favor of or against the proposed section. Prior to proposal of the $100 fee for tarpon tags, the department scoped both coastal sportfishermen and tarpon fishing guides in efforts to determine a reasonable price for a trophy-sized tarpon tag. The consensus of these groups that the tag should be set at $100 to allow take of tarpon under a tagging system while minimizing stock depletion. The amendment is adopted under the Parks and Wildlife Code, sec.46.0045, which authorizes the Commission to establish fees for initial and duplicate tags issued under authority of Parks and Wildlife Code, Chapter 46, Subchapter A. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 6, 1994. TRD-9438691 Paul M. Shinkawa Director, Legal Services Texas Parks and Wildlife Department Effective date: September 1, 1994 Proposal publication date: February 18, 1994 For further information, please call: 1 (800) 792-1112, Ext. 4433 or (512) 389- 4433 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 75. Investigations Criminal Conviction Checks of Employees in Certain Facilities Serving the Elderly or Disabled 40 TAC sec.75.1001, sec.75.1002 The Texas Department of Human Services (DHS) adopts the repeal of sec.75. 1001 and sec.75.1002, concerning the basis and facilities requirements for criminal conviction checks of employees in certain facilities serving the elderly or persons with disabilities, in its Investigations rule chapter, without changes to the proposed text as published in the November 9, 1993, issue of the Texas Register (18 TexReg 8174). The justification for the repeals is to enable DHS to adopt new Chapter 76, Criminal History Check of Employees in Facilities for Care of the Aged and Persons with Disabilities. DHS is adopting the new sections in this issue of the Texas Register. The repeals will function by complying with the Health and Safety Code, Title 4, Chapter 250, which requires that persons convicted of certain crimes may not be employed in most facilities and agencies providing care to the aged and persons with disabilities. Effective September 1, 1993, DHS assumed responsibility for conducting background checks on persons who would be employed in activities requiring direct contact with consumers of the facility. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs, and the Health and Safety Code, Title 4, Chapter 250, which requires the department to perform criminal history checks on persons employed by certain types of facilities. The repeals implement the Health and Safety Code, Title 4, Chapter 250. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 6, 1994. TRD-9438687 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: May 1, 1994 Proposal publication date: November 9, 1993 For further information, please call: (512) 450-3765 Chapter 76. Criminal History Check of Employees in Facilities for Care of the Aged and Persons with Disabilities Policy and Procedures 40 TAC sec.sec.76.101-76.108 The Texas Department of Human Services (DHS) adopts new sec.sec.76.101-76. 108, concerning criminal history check of employees in facilities for care of the aged and persons with disabilities. New sec.sec.76.101, 76.102, and 76.107 are adopted with changes to the proposed text as published in the November 9, 1993, issue of the Texas Register (18 TexReg 8174). New sec.sec.76.103-76. 106 and 76.108 are adopted without changes to the proposed text, and will not be republished. The justification for the new sections is to comply with the Health and Safety Code, Title 4, Chapter 250, which bars persons from employment in most facilities and agencies providing care to the aged and persons with disabilities if those persons have been convicted of certain crimes. Effective September 1, 1993, DHS assumed responsibility for conducting background checks on persons who would be employed in activities requiring direct contact with consumers of the facility. The new sections will function by providing an effective means of screening potential employees of facilities serving the aged and persons with disabilities to ensure they are not barred from employment because of certain criminal offenses. During the public comment period, DHS received comments from Pine Tree Lodge Personal Care Facility; EduCare Community Living Corporation-Texas; Legal Aid Society of Central Texas; Texas Health Care Association; Texas Association for Home Care, and North Central Texas Home Care. The comments and DHS's responses follow. Comment. One commenter stated his belief that the 60-day waiting period during which an applicant's criminal history is researched by the Texas Department of Public Safety is too long and will result in emergency, temporary hiring for most vacancies. Response. DHS believes that 60 days is a reasonable estimate of the time that will be required to complete processing of an applicant's criminal history investigation through the entirety of the state's system. Because of this length of time, DHS added the emergency hiring provision in sec.76.101. If the applicant signs a written statement stating that he has no barrable criminal convictions, the applicant may be hired on a temporary basis until the facility receives notification of the applicant's criminal history. DHS believes this will protect facility residents while permitting facilities to fill vacancies immediately. Comment. One commenter recommended that the 60-day time period for a reply, as stated in sec.76.104, should be reduced to 45 days. The commenter stated that the 60-day time frame may not pose a hardship on existing programs, but it is burdensome on new programs during start-up. Response. See the response to the first comment. DHS believes any constraints imposed by the 60-day time period are no different for an established provider needing to hire on an emergency basis and one just starting a program. Once again, the provisions stated in sec.76.101 allow for emergency hiring on a temporary basis. Comment. One commenter stated that some form of written findings from the criminal history check should be provided to give the potential employer closure. Response. DHS agrees and is developing an automated response system which will offer closure to the requesting employer. Comment. One commenter asked whether employers may obtain criminal history information directly from the Texas Department of Public Safety (DPS) to meet the criminal history check requirement. Response. Yes, although DHS does not recommend this. A private citizen's "walk- up" request is more expensive, and the employer must still share the results with DHS when they are received, if a barrable or potentially barrable conviction is found. Comment. One commenter stated that the main incongruity in the statute is that it applies to nurse aides and to other unlicensed persons, but the Nurse Aide Registry can be used only for nurse aides. The commenter stated that the Nurse Aide Registry should be used to offer a convenient and effective means of retaining a record of criminal history checks on nurse aides. Response. The Nurse Aide Registry is created by federal statute and may not be used for any purpose other than that authorized by the statute. It is applicable only to nurse aides, employed by nursing facilities and involves only offenses committed in nursing facilities. Chapter 250 covers all unlicensed employees in various long term care facilities, and it covers Texas offenses without regard to where they are committed. Therefore, DHS does not view the use of the Nurse Aide Registry to be appropriate for the Criminal History Check system. Comment. One commenter noted that once a criminal history check is run and any administrative review completed, the registry can reflect whether the aide is "unemployable" or whether, instead, a particular conviction, falling under the list of convictions which might bar employment, has been considered by the review panel and determined not to bar employment. This decision can then be recorded in the registry so that the process of check and review does not have to be repeated each time the nurse aide changes jobs. The use of the registry in this manner has three advantages: 1) it prevents those nurse aides already determined to be barred from ever working one more day in a facility; 2) nurse aides with a conviction already reviewed and determined not to bar employment do not have to go through the whole process again regarding the same conviction; 3) the department's review panel does not have to repeat it. Response. The statute does not limit an employee to one and only one administrative review of a conviction. An applicant may be found to be unemployable by an administrative review panel in one review and later found to be employable, if sufficient time and an adequate work history is developed in the meanwhile to demonstrate rehabilitation. Therefore, maintaining a registry containing the results of administrative reviews of criminal history checks would not be usable in a subsequent employment review since the circumstances surrounding that situation may produce a different finding than in the first instance. As required by federal regulation, the nurse aide is entitled to a due process hearing under DHS rules (sec.sec.79.1001-79.1007 of this title). These hearings do not involve a review of criminal history convictions. Comment. One commenter stated that a nurse aide who is listed as "unemployable" in the Nurse Aide Registry may not be hired under any circumstance after a review panel's final finding. The applicant has had his opportunity for review of the accuracy of the conviction record and an opportunity for discretionary review by the review panel. Response. A nurse aide may be found to be unemployable under the provisions of the Nurse Aide Registry without a criminal conviction and, therefore, would remain employable in other long term care facilities besides a nursing facility. Comment. One commenter stated that if the suggestion is accepted that the department keep and make reference to records of its final findings, unlicensed personnel other than nurse aides may also be barred prior to being hired. Response. The proposed rules do require a pre-employment criminal history check, subject to the emergency hire provisions. Comment. One commenter stated that since the check must be run on all applicants, the only operative language in the "emergency provisions" is the 72- hour time period. The commenter noted that the statute is silent as to the time period for submitting all other applications for criminal history checks and suggested that the 72-hour period be the time period for submitting all applications for criminal history checks. Response. The rules permit employment prior to receipt of results of a criminal history check of any employee, providing that the request for the criminal history check is submitted within 72 hours of employment and that the applicant has furnished a written statement stating the applicant has not been convicted of an offense which would bar employment. Comment. One commenter stated that the proposed rules imply that the facility must wait to start the person on the job by using the term "pre- employment" check and by establishing a "presumption of employability" if no negative results are received in 60 days. Neither of these has support in the statute. After pre-employment checks of the registry and department records of final findings, a person may be hired and employed while the criminal history check is run. There is no need for a presumption of employability after 60 days because the applicant may be presumed by the facility to be employable until the facility is notified otherwise by a final finding. Response. DHS believes that sec.250.002 bars persons from employment in positions involving direct contact with consumers in a facility until the results of a criminal history check can be obtained, unless a person is hired in an emergency as that term is defined in the rules. Comment. One commenter stated that the expansion of the bill to cover other unlicensed personnel makes it necessary to assure that no one, neither nurse aides nor other licensed personnel, is fired because a facility mistakenly believes it is required to discharge a current employee as soon as it is notified of the preliminary findings of the criminal history check by DPS. Response. The new rules do not require notification of, nor is DHS intending to notify, an employer of a finding of unemployability until after an applicant has exhausted the administrative remedies provided by Chapter 250 and the new rules. Comment. One commenter stated that the proposed rules refer to "employees" where the statute excludes employees "licensed under another law of this state" and also switches between use of the terms "employees" and "applicants" inappropriately. Response. The commenter has pointed to the inappropriate use of the term "employee" to refer to persons obtaining a pre-employment criminal history check. To avoid any confusion this may cause, DHS is adopting the second sentence of sec.76.102(a) with a change substituting "person" for "employee." Comment. One commenter suggested adding language to sec.76.102 to clarify that an applicant for a nurse aide position may not be hired by a facility if the facility determines that the applicant is listed in the nurse aide registry as "unemployable." Response. DHS agrees and is adopting the section with the requested clarification. Comment. One commenter suggested adding to sec.76.102 a statement to the effect that an applicant may not be hired by a facility for a position which involves direct contact with a consumer until the facility determines if DHS has record of a prior final finding barring employment based on a conviction. The commenter suggested adding a statement that if DHS notifies the facility that the applicant has a prior final finding barring employment, the applicant may not be hired. Response. DHS declines to add the suggested language because DHS does not maintain a registry of criminal convictions nor the results of administrative review hearings conducted under the Health and Safety Code, Chapter 250. Moreover, DHS believes that under the statute the applicant would be entitled to an administrative review upon a subsequent application for employment due to a change in the applicant's circumstances concerning rehabilitation. Comment. One commenter suggested adding to sec.76.103 a statement to the effect that a facility must apply for a criminal history check for anyone hired for employment whose position involves direct contact with consumers and who is not licensed under another state law. Response. DHS believes this requirement is explicit in the statute and is therefore unnecessary in the rules. Comment. One commenter suggested adding to sec.76.103 a statement to the effect that the application for a criminal history check must be filed within 72 hours of employment and must be filed on forms provided by DHS. Response. The statutory requirement for submission of a request for criminal history check within 72 hours only applies to cases of emergency hire; otherwise, the criminal history check must be completed prior to employment. Comment. One commenter suggested adding to sec.76.104 a statement to the effect that DHS will notify the facility and person affected if a criminal history check has revealed a conviction which bars or which may potentially bar employment. The notification will indicate that it is a preliminary finding pending an opportunity for administrative review. The notice will advise the person affected of the manner of requesting an administrative review. A preliminary finding does not prevent the hire of an applicant or require the discharge of an employee. Response. This rule is not needed since this is covered by the statute (sec.250.004) which prescribes when notice must be sent, what the notice is, and the effect of the notice. Comment. One commenter suggested adding to sec.76.105(b) a statement to the effect that if the person affected fails to request an administrative review in a timely manner, the preliminary finding becomes final and DHS will notify the facility and the person affected of the final finding barring employment. Response. This rule is not needed since this is covered by the statute (sec.250.004(c)(3)) which contains provisions for failure to request an administrative review. Comment. One commenter suggested adding to sec.76.107(b) a statement to the effect that a request for personal appearance must be made within 10 days of date of receipt of the notice of opportunity. If a person affected fails to request the opportunity for a personal appearance in a timely manner, the finding of the panel becomes final. The commenter also recommended inclusion of a statement to the effect that, after consideration of any personal appearance that has been made, DHS must notify the facility and the person affected of its final finding. Response. DHS agrees with the suggestion and has added the suggested language, except that, in the second recommended statement, the words "the panel's" have been substituted for "its." Comment. One commenter suggested adding to sec.76.109 a statement to the effect that DHS will notify the facility and the person affected of any final finding. A final finding bars employment and is effective when received. Response. This rule is not needed since this is covered by the statute (sec.250.006) which contains provisions for notification. Comment. One commenter observed that initially there will be only one administrative review panel, and it will be located in the Austin area. These rules address employment of individuals who make minimum wage or not much more. These individuals are not able to afford a trip to Austin. There are also individuals who, for the most part, may not have the ability to write a clear defense of their case. At the very least, this rule needs to include statewide regional administrative review panels, and this needs to be made clear in the rules. Response. DHS believes that this issue is not appropriate to be addressed in rule language since it is an internal organization issue. However, DHS does agree that travel is a concern for those few persons who choose to present a second, in-person, argument regarding evidence of mitigating circumstances or rehabilitation. DHS's long-term intent is to establish review panels specific to particular regions of the state. Plans for this are underway. Because planning for these regional panels is dependent on workload, it is prudent to delay their creation until adequate data is gathered to indicate appropriate regional locations. When regional review panels are instituted, applicants will be directed to the panel within their region, or, if the workload does not support the need for a panel in a particular region, they will be directed to the panel which is geographically nearest. Comment. One commenter stated that the rules need to clearly state that they apply only to unlicensed applicants. Response. DHS believes that this is unnecessary, since the statute specifies that it is directed only to applicants not licensed under other authority. Comment. One commenter noted that the law provides for two groups of crimes: one that absolutely bars applicants from employment and one that potentially bars applicants from employment. This distinction needs to be made clear in the rules, and the crimes need to be listed by name in each group, not simply as Penal Code cites. Response. DHS believes that this is unnecessary, since the statute specifies types of criminal convictions that constitute a bar to employment and which are considered to be potentially a bar. Comment. One commenter stated that the rules must include a statement that, under the authorizing statute, employers are indemnified against any legal action that may flow from the fact that they employed a person who does not reveal a conviction but who the check later reveals has been convicted of a crime that bars or potentially bars them from employment. Response. Chapter 250 does not require nor does it grant authority to DHS to issue guaranties or indemnifications to any employer or facility covered by the statute. Comment. One commenter noted that sec.76.101 (the definition of "emergency requiring immediate employment") requires a person employed on an emergency basis to supply the facility with an affidavit stating they have no relevant criminal convictions. It must be made clear whether the affidavit called for refers to a formal sworn and notarized affidavit or simply a signed statement. The commenter requested that DHS supply providers with a model affidavit form in order to standardize this provision. Response. The affidavit referred to is simply a written statement made by the applicant to the potential employer. It must state that the applicant has no convictions which would bar his employment under the Health and Safety Code, sec.250.005. However, this statement, which must be retained by the facility, does constitute a government record, and falsification of these records is subject to the criminal penalties called for in the Texas Penal Code, sec.37.10. DHS declines to prescribe a standardized form for use by all providers; however, DHS is adopting sec.76.101 (definition of "emergency requiring immediate employment") with changes to substitute a written statement for the affidavit. Comment. One commenter stated that the rules must include an explanation that the burden of appealing employability is on the applicant rather than the employer. Response. DHS believes that sec.76.105 as proposed clearly states that it is the applicant's responsibility to request a review. Comment. One commenter requested that the notice of criminal employability be sent to the employee as well as the employer. Response. DHS agrees that this is appropriate, and steps have been taken to assure that this occurs. This is a process action, however, and is not appropriate for inclusion in the rules. Comment. Two commenters recommended that DHS not require the sworn affidavit, since an affidavit is not required by the law. One commenter requested that agencies be allowed to continue as they have since 1989 to make employees aware that their name will be submitted for a criminal history check and that continued employment is based upon satisfactory results. It will be acceptable to require the applicant to sign a statement that they have not been convicted of the applicable crimes. However, the statement should not have to be notarized. Response. See response to previous comment concerning the requirement that persons employed on an emergency basis must supply the facility with a written statement. Comment. Two commenters requested that in sec.76.101 (definition of "emergency requiring immediate employment") DHS delete the word "ratio." This leaves it up to the agency to define its own emergency by allowing the agency to decide the number of staff it needs. Response. DHS agrees and has deleted the word "ratio" from the definition. In addition to changes resulting from public comments, DHS is adopting sec.76.107(a) with an editorial clarification consisting of deletion of paragraph (2), which is covered in sec.76.107(b). The new sections are adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs, and the Health and Safety Code, Title 4, Chapter 250, which requires the department to perform criminal history checks on persons employed by certain types of facilities. The new sections implement the Health and Safety Code, Title 4, Chapter 250. sec.76.101. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Board-The Board of the Texas Department of Human Services. Department-The Texas Department of Human Services (DHS). Direct Contact with a Consumer-Any contact with a resident or client or a family member or visitor of a resident or client in a facility covered by this chapter. Emergency requiring immediate employment-The urgent need to hire an individual as a result of a survey deficiency on staffing and/or the potential of the facility to fall below their desired staffing, thus putting the client's health and safety at risk. A person to be employed under these circumstances must furnish the employer with a written statement which affirms that the applicant has not been convicted of an offense under the Health and Safety Code, sec.250.005, subject to the criminal penalties of the Texas Penal Code, sec.37.10. Facilities-The following facilities and applicants, included in the requirement of criminal history checks: (A) nursing homes, custodial care homes, or other institutions licensed under the Health and Safety Code, Chapter 242; (B) personal care facilities licensed under the Health and Safety Code, Chapter 247; (C) adult day care facilities or adult day health care facilities licensed under Human Resources Code, Chapter 103; (D) facilities for persons with mental retardation licensed or certified by the Texas Department of Health or DHS; (E) intermediate care facilities for persons with mental retardation certified for participation in the Medicaid program under the Social Security Act, Title XIX; (F) adult foster care providers contracting with DHS. sec.76.102. Pre-employment History Check. (a) Employees in facilities for the care of the aged and disabled who come into direct contact with consumers must have a pre-employment criminal history check performed by the Texas Department of Human Services. A person who has a criminal conviction which bars employment or a person who fails to obtain a clearance of a conviction which potentially bars employment may not be employed in a facility in a capacity which involves direct contact with a consumer in the facility. An applicant for the position of nurse aide may not be hired if the applicant is listed in the nurse aide registry as "unemployable." (b) Applicants to provide adult foster care are subject to criminal history checks before enrollment in the adult foster care program. sec.76.107. Personal Appearance. (a) If the review panel determines that the documentation required in sec.76.106 of this title (relating to Standards for Review) is insufficient to demonstrate that the applicant would be unlikely to be a threat to the consumers or property of the consumers in a facility, the applicant must be provided the opportunity to appear before the panel in person to offer additional information. This notice of opportunity must be included in the findings notice by the review panel. (b) If the applicant fails to request the opportunity for a personal appearance in a timely manner, the finding of the panel becomes final. A request for personal appearance must be made within ten days of the date of receipt of the notice of opportunity. After consideration of any personal appearance that has been made, DHS must notify the facility and the person affected of the panel's final finding. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 6, 1994. TRD-9438686 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: May 1, 1994 Proposal publication date: November 9, 1993 For further information, please call: (512) 450-3765 Part XVI. Council on Sex Offender Treatment Chapter 510. Sex Offender Treatment Provider Registry 40 TAC sec.sec.510.1-510.9 The Council on Sex Offender Treatment adopts amendments and new sections of sec.sec.510.1-510.9, concerning the Sex Offender Treatment Provider Registry. Sections 510.1-510.4 and 510.6-510.9 are adopted with changes to the proposed text as published in the January 14, 1994, issue of the Texas Register (19 TexReg 260). Section 510.5 is adopted without changes to the proposed text and will not be republished. The Council on Sex Offender Treatment is amending these rules and adding new sections to clearly define new criteria for inclusion in the Registry; renewal to the Registry; fees; availability of applications to the Registry; documentation requirements; revocation; judicial review of exclusion from Registry and Registry inclusion based on preexisting status. These rules will function in accordance with the acts of the 73rd Legislature, Regular Session, which directs the Council on Sex Offender Treatment "to develop procedures and eligibility requirements for inclusion in the registry, including, if appropriate, those related to clinical practice experience and assessment, continuing education, and supervision." Comments on the proposed rules were received from 12 persons at a public hearing. Comments focused on the lack of public understanding of the difference between a practice act and a title act; request for inclusion of Advanced Nurse Practitioners, Licensed Chemical Dependency Counselors and Certified Alcohol and Drug Addiction Counselors in the list of qualifying licensure/certifications for the Registry; and inclusion of a trainee-level classification of sex offender treatment providers in the Registry. Comments regarding this rule were received by the Texas Association on Sex Offender Treatment, the Texas Nurses Association and the Houston Association of Psychiatric Nurses. The Council on Sex Offender Treatment agrees with comments by the Texas Nurses Association and the Houston Association of Psychiatric Nurses that Advanced Nurse Practitioners should be eligible for inclusion in the Registry because these professionals hold masters degrees and therefore have a broad base of academic and clinical training. The Council has added these professionals to the list of qualifying licensure based on public testimony. The Council disagrees with the comments by the Texas Association on Sex Offender Treatment that Licensed Chemical Dependency Counselors and Certified Alcohol and Drug Addiction Counselors should be eligible for inclusion in the Registry because those professionals are not required to hold masters degrees and are required to have training only in the specific area of chemical dependency treatment. These professionals are not required to have a broad base of training in mental health. The Council disagrees with comments from the Texas Association on Sex Offender Treatment, the Texas Nurses Association and the Houston Association on Psychiatric Nurses and individual providers statewide that a third, "trainee level" category should be added to the rules for reasons of liability. The Council also disagrees with comments by the Texas Association on Sex Offender Treatment that additional hours of continuing education training should be required. The Council feels the proposed number of training hours is sufficient. The Council's enabling statute is a title act, not a practice act. Therefore, the Council only restricts the use of the title "Sex Offender Treatment Provider" unless the person is listed in the Registry. The Council may not restrict the practice of sex offender treatment by any other licensed mental health professional. The amendments and new rules are adopted under Texas Civil Statutes, Article 4413(51), sec.13 and sec.15, which provide the Council on Sex Offender Treatment with the authority to establish and maintain a registry, develop procedures and eligibility requirements, and set a reasonable fee for registration. Cross Reference to Statute: sec.510.1-Texas Civil Statutes, Article 4413(51); sec.510.2-Texas Civil Statutes, Article 4413(51) and Code of Criminal Procedure, Article 42.12; sec. sec.510.3-510.9-Texas Civil Statutes, Article 4413(51). sec.510.1. Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. Council-The Council on Sex Offender Treatment. Registry-A database of persons maintained by the Council, who have met the Council's criteria in the treatment of sex offenders, and who, provide mental health or medical services for the rehabilitation of sex offenders. Rehabilitation service -A mental health treatment or medical intervention program designed to treat or remedy a sex offender's mental or medical problem that may relate or contribute to the sex offender's criminal or paraphiliac problem. Sex Offender-A person who: (A) is convicted of committing or adjudicated to have committed a sex crime under the laws of a state or under federal law; (B) is awarded deferred adjudication for a sex crime under the laws of a state or under federal law; (C) admits to having violated the law of a state or federal law with regard to sexual conduct; (D) experiences or evidences a paraphiliac disorder as defined by the current version of the Diagnostic and Statistical Manual of the American Psychiatric Association. Sex Offender Treatment Provider-A person, licensed or certified to practice, who provides mental health or medical services for rehabilitation of sex offenders, including a Physician, Psychiatrist, Psychologist, Psychological Associate, Licensed Professional Counselor, Licensed Marriage and Family Therapist, Licensed Master Social Worker-Advanced Clinical Practitioner, or Advanced Nurse Practitioner recognized as a Psychiatric Clinical Nurse Specialist or Psychiatric Mental Health Nurse Practitioner. sec.510.2. Registry Criteria. The Council shall establish a database of Sex Offender Treatment Providers whose experience in the rehabilitation of sex offenders may vary. The Council shall recognize the experience and training of treatment providers in either one of two categories. These may be "Registered Sex Offender Treatment Provider" or "Affiliate Sex Offender Treatment Provider." (1) Registered Sex Offender Treatment Provider (RSOTP). To be eligible as a Registered Sex Offender Treatment Provider, the applicant must meet all of the following criteria: (A) be licensed or certified to practice as a Physician, Psychiatrist, Psychologist, Psychological Associate, Licensed Professional Counselor, Licensed Marriage and Family Therapist, Licensed Master Social Worker-Advanced Clinical Practitioner, or Advanced Nurse Practitioner recognized as a Psychiatric Clinical Nurse Specialist or Psychiatric Mental Health Nurse Practitioner, and who provides mental health or medical services for the rehabilitation of sex offenders; and (B) satisfy the experience and training criteria required below: (i) possess a minimum of 1,000 hours of clinical experience in the area of assessment and treatment of sex offenders, obtained within a consecutive seven- year period, and provide two reference letters from professionals who can attest to the applicant's clinical work in sex offender treatment; and (ii) possess a minimum of 40 hours of documented continuing education training in the specific area of sex offender treatment and evaluation. Of the initial 40 hours training required; 30 hours or 75% must be in sex offender rehabilitation training. Ten hours or 25% may be in victim training; and (C) submit a complete and accurate description of their treatment program on a form prescribed by the Council; and (D) comply with the following. Persons making initial application or renewing their eligibility for the Registry: (i) must not have been convicted of a felony, or of any misdemeanor involving a sex offense, nor have received deferred adjudication for a sex offense; and area of assessment and treatment of sex offenders, obtained within a consecutive seven-year period, and provide two reference letters from professionals who can attest to the applicant's clinical work in sex offender treatment; and (ii) possess a minimum of 40 hours of documented continuing education training in the specific area of sex offender treatment and evaluation. Of the initial 40 hours training required; 30 hours or 75% must be in sex offender rehabilitation training. Ten hours or 25% may be in victim training; and (C) submit a complete and accurate description of their treatment program on a form prescribed by the Council; and (D) comply with the following. Persons making initial application or renewing their eligibility for the Registry: (i) must not have been convicted of a felony, or of any misdemeanor involving a sex offense, nor have received deferred adjudication for a sex offense; and (ii) must not have had licensure revoked, canceled, suspended, or placed on probationary status by any professional licensing body; and (iii) must not have been determined by any professional licensing or certifying body to have engaged in unprofessional or unethical conduct; and (iv) must not have been determined by the Council to have engaged in deceit or fraud in connection with the delivery of services or documentation of Registry requirements or Registry eligibility; and (v) must submit themselves to a criminal history background check. An applicant may be required to submit a complete set of fingerprints with the application documents, or other information necessary to conduct a criminal history background check to be submitted to the Texas Department of Public Safety or to another law enforcement agency. If fingerprints are requested, the fingerprints must be taken by a peace officer or a person authorized by the Council and must be placed on a form prescribed by the Texas Department of Public Safety; and (vi) must not have violated any rule adopted by the Council; (E) submit an application fee defined in sec.510.4 of this title (relating to Fees); and (F) submit a copy of their professional license stating that they are currently licensed to practice as a clinical mental health professional and/or physician, and in good standing; and (G) attest to the accuracy of their application statement before a Notary Public. (2) Affiliate Sex Offender Treatment Provider (ASOTP). To be eligible as an Affiliate Sex Offender Treatment Provider, the applicant must meet all of the following criteria: (A) be licensed or certified to practice as a Physician, Psychiatrist, Psychologist, Psychological Associate, Licensed Professional Counselor, Licensed Marriage and Family Therapist, Licensed Master Social Worker-Advanced Clinical Practitioner, or Advanced Nurse Practitioner recognized as a Psychiatric Clinical Nurse Specialist or Psychiatric Mental Health Nurse Practitioner, who provides mental health or medical services for the rehabilitation of sex offenders; and (B) satisfy the experience and training required as follows: (i) possess a minimum of 250 hours of clinical experience in the areas of assessment and treatment of sex offenders, provide two reference letters from professionals who know of the applicants clinical work in sex offender treatment; and (ii) be supervised by a Registered Sex Offender Treatment Provider; and (iii) possess a minimum of 40 hours of documented continuing education training in the specific area of sex offender treatment and evaluation. Of the initial 40 hours training required; 30 hours or 75% must be in sex offender rehabilitation training. Ten hours or 25%, may be in victim training; and (C) submit a complete and accurate description of their treatment program on a form prescribed by the Council; and (D) comply with the following. Persons making initial application or renewing their eligibility for the Registry: (i) must not have been convicted of a felony, or of any misdemeanor involving a sex offense, nor have received deferred adjudication for a sex offense; and (ii) must not have had licensure revoked, canceled, suspended, or placed on probationary status by any professional licensing body; and (iii) must not have been determined by any professional licensing body to have engaged in unprofessional or unethical conduct; and (iv) must not have been determined by the Council to have engaged in deceit or fraud in connection with the delivery of services or documentation of Registry requirements or Registry eligibility; and (v) must submit themselves to a criminal history background check. An applicant may be required to submit a complete set of fingerprints with the application documents, or other information necessary to conduct a criminal history background check to be submitted to the Texas Department of Public Safety or to another law enforcement agency. If fingerprints are requested, the fingerprints must be taken by a peace officer or a person authorized by the Council and must be placed on a form prescribed by the Texas Department of Public Safety; and (vi) must not have violated any rule adopted by the Council; and (G) submit an application fee defined in sec.510.4 of this title; and (H) submit a copy of their professional license stating that they are currently licensed or certified to practice as a clinical mental health professional and in good standing; and (I) attest to the accuracy of their application statements before a Notary Public. (3) Supervision. The Affiliate Sex Offender Treatment Provider will be required to be supervised. Supervision will include the following. (A) The Affiliate Sex Offender Treatment Provider providing any offender treatment is required to be under the supervision of a Registered Sex Offender Treatment Provider and must provide annual documentation of that supervision; and (B) The Affiliate Sex Offender Treatment Provider must receive face to face supervision at least one hour per month, or if providing more than 20 hours of direct clinical sex offender treatment work per month, the Affiliate Sex Offender Treatment Provider must receive one hour of supervision per every 20 hours of sex offender treatment provided; and (C) The Registered Sex Offender Treatment Provider will be required to submit to the Council on an annual basis the names of the persons they have supervised. sec.510.3. Registry Renewal. In order to maintain eligibility for the Registry, a renewing applicant must comply with the following: (1) a Registered Sex Offender Treatment Provider or an Affiliate Sex Offender Treatment Provider must submit every two years a minimum of 24 hours of continuing education documentation in sex offender treatment, beginning September, 1993. Of these hours, six must be victim related training; (2) all renewing applicants must submit renewal fees defined in sec.510.4 of this title (relating to Fees). sec.510.4. Fees. All applicants must submit a non-refundable application fee according to the following. (1) A Registered Sex Offender Treatment Provider or an Affiliate Sex Offender Treatment Provider must submit a non-refundable application fee of $100. To renew, a Registered Sex Offender Treatment Provider or an Affiliate Sex Offender Treatment Provider must submit an annual renewal fee of $50. (2) Additional fees in an amount not to exceed $23, will be charged for FBI and DPS criminal background investigation. sec.510.6. Documentation of Experience and Training. In determining the acceptability of the treatment provider's experience and/or training, the Council will require documentation of experience and/or training regarding the quality, scope and nature of the applicant's work in sex offender treatment and rehabilitation. This will include reference letters from professionals who can attest to the applicant's work in sex offender treatment. sec.510.7. Revoke, Refuse or Refuse to Renew. The Council shall have the right to revoke a Registry listing, refuse to accept a Registry listing, and/or refuse to renew a Registry listing upon proof that the treatment provider has violated any of the following: (1) been convicted of any felony or a misdemeanor involving a sexual offense, nor have received deferred adjudication for a sexual offense; or (2) had licensure revoked, canceled, suspended, or placed on probationary status by any professional licensing body; or (3) been determined by any professional licensing body to have engaged in unprofessional or unethical conduct; or (4) been determined by the Council to have engaged in deceit or fraud in connection with the delivery of services, supervision, or documentation of Registry requirements or Registry eligibility; or (5) violated any rule adopted by the Council. sec.510.8. Judicial Review of Exclusion From Registry. A person excluded from the Registry may appeal the Council's decision to exclude the person from the Registry by filing a petition for judicial review in the manner provided by the Government Code, Chapter 268, Article 1, sec.2001. sec.510.9. Registry Inclusion Based on Pre-existing Status. The Council on Sex Offender Treatment shall review the status of a provider who is transferred to the Registry under the criteria established heretofore, and may change the provider's status after evaluating the provider's compliance with Council standards for inclusion in the Registry. The Council on Sex Offender Treatment shall give a provider proper notice and a reasonable opportunity to meet Registry standards before changing the provider's status under this section. Individuals will be included in the appropriate categories of Registered Sex Offender Treatment Provider or Affiliate Sex Offender Treatment Provider, provided they have met the following criteria: (1) were listed in the 1993 Registry; and (2) individuals who have less than 1, 000 hours of clinical experience will be classified as an Affiliate Sex Offender Treatment Provider. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 4, 1994. TRD-9438588 Eliza May Executive Director Council on Sex Offender Treatment Effective date: April 26, 1994 Proposal publication date: January 14, 1994 For further information, please call: (512) 463-2323 40 TAC sec.sec.510.2, 510.3, 510.6-510.9 The Council on Sex Offender Treatment adopts the repeal of sec.sec.510.2, 510. 3, 510.6-510.9, concerning the Sex Offender Treatment Provider Registry. The Council is repealing these rules to replace them with new rules which will clearly define new criteria for inclusion in the Registry; renewal to the Registry; fees; availability of applications to the Registry; documentation requirements; revocation; judicial review of exclusion from Registry and Registry inclusion based on preexisting status. The repeal of this rule will function to allow new rules to be adopted. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 4413(51), sec.13 and sec.15, which provide the Council of Sex Offender Treatment with the authority to establish and maintain a registry, develop procedures and eligibility requirements, and set a reasonable fee for registration. Cross-Reference to Statute: sec.510.1-Texas Civil Statutes, Article 4413(51); sec.510.2-Texas Civil Statutes, Article 4413(51), and Code of Criminal Procedure, Article 42.12; sec.510.3 -Texas Civil Statutes, Article 4413 (51). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 4, 1994. TRD-9438587 Eliza May Executive Director Council on Sex Offender Treatment Effective date: April 26, 1994 Proposal publication date: January 14, 1994 For further information, please call: (512) 463-2323