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 10. COMMUNITY DEVELOPMENT Part V. Texas Department of Commerce Chapter 190. Procedures of the Board 10 TAC sec.190.3, sec.190.8 The Texas Department of Commerce adopts an amendment to sec.190.3 and new sec.190.8, concerning Procedures of the Board, without changes to the proposed text as published in the March 4, 1994, issue of the Texas Register (19 TexReg 1533). Section 190.3 clarifies that policy board members may submit items for inclusion in the policy board's meeting agenda. Section 190.8 describes how the public may petition the department for rules as authorized by Texas Government Code, sec.2001.21. The department is required to provide written notice to the petitioner of its decision to either initiate or deny a rulemaking proceeding. The rules are adopted under the authority of Texas Government Code, sec.481. 0044(a), which authorizes the policy board to adopt rules necessary for the administration of department programs; and Texas Civil Statutes, Article 4413(52), sec.5A (as amended by Senate Bill 405, sec.29, 73rd Legislature), which provides the policy board with the authority to adopt necessary rules for the implementation and management of the job training program. The rules are also adopted under the authority of the Administrative Procedure Act (Texas Government Code, Chapter 2001), which mandates the rulemaking procedures for state agencies. 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 May 13, 1994. TRD-9440907 Deborah C. Kastrin Executive Director Texas Department of Commerce Effective date: June 6, 1994 Proposal publication date: March 4, 1994 For further information, please call: (512) 320-9401 TITLE 22. EXAMINING BOARDS Part XII. Board of Vocational Nurse Examiners Chapter 231. Administration General Provisions 22 TAC sec.231.1 The Board of Vocational Nurse Examiners adopts an amendment to sec.231.1, concerning Definitions, without changes to the proposed text as published in the April 12, 1994, issue of the Texas Register (19 TexReg 2603). This amendment was adopted to more clearly demonstrate what is considered a complete application. No comments were received relative to the adoption of this amendment. The amendment is adopted under Texas Civil Statutes, Article 4528c, sec.5(f), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 13, 1994. TRD-9440891 Marjorie A. Bronk, R.N., M.S.H.P. Executive Director Board of Vocational Nurse Examiners Effective date: June 3, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 835-2071, Ext. 203 Chapter 233. Education Operation of a Vocational Nursing Program 22 TAC sec.233.21 The Board of Vocational Nurse Examiners adopts the repeal of sec.233.21, concerning entitled Operation of a Vocational Nursing Program, without changes to the proposed text as published in the April 12, 1994, issue of the Texas Register (19 TexReg 2604). The adoption of this repeal allows the Board to adopt a new sec.233.21 in a different format and incorporate portions of another rule. No comments were received relative to the repeal of this rule. The repeal is adopted under Texas Civil Statutes, Article 4528c, sec.5(f), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 13, 1994. TRD-9440889 Marjorie A. Bronk, R.N., M.S.H.P. Executive Director Board of Vocational Nurse Examiners Effective date: June 3, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 835-2071, Ext. 203 The Board of Vocational Nurse Examiners adopts new sec.233.21, concerning Operation of a Vocational Nursing Program, without changes to the proposed text as published in the April 12, 1994, issue of the Texas Register (19 TexReg 2604). The rule was adopted to make information more clear and concise. One comment was received opposing language that was in the previous rule and being included in the new format. The new section is adopted under Texas Civil Statutes, Article 4528c, sec.5(f), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 13, 1994. TRD-9440890 Marjorie A. Bronk, R.N., M.S.H.P. Executive Director Board of Vocational Nurse Examiners Effective date: June 3, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 835-2071, Ext. 203 Vocational Nurse Education 22 TAC sec.233.89 The Board of Vocational Nurse Examiners adopts the repeal of sec.233.89, concerning Vocational Nurse Education Records, without changes to the proposed text as published in the April 12, 1994, issue of the Texas Register (19 TexReg 2605). The rule was incorporated into sec.233.21. No comments were received relative to the adoption of this repeal. The repeal is adopted under Texas Civil Statutes, Article 4528c, sec.5(f), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 13, 1994. TRD-9440888 Marjorie A. Bronk, R.N., M.S.H.P. Executive Director Board of Vocational Nurse Examiners Effective date: June 3, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 835-2071, Extension 203 Chapter 235. Licensing Application for Licensure 22 TAC sec.sec.235.4, 235.9, 235.12 The Board of Vocational Nurse Examiners adopts new sec. sec.235.4, 235.9, and 235.12, concerning Application for Licensure, without changes to the proposed text as published in the April 12, 1994, issue of the Texas Register (19 TexReg 2605). The rules are adopted to comply with revisions of the Vocational Nurse Act effective September 1, 1993. No comments were received relative to the adoption of these rules. The new sections are adopted under Texas Civil Statutes, Article 4528c, sec.5(f), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 13, 1994. TRD-9440892 Marjorie A. Bronk, R.N., M.S.H.P. Executive Director Board of Vocational Nurse Examiners Effective date: June 3, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 835-2071, Ext. 203 Chapter 235. Licensing Application for Licensure 22 TAC sec.sec.235.7, 235.11, 235.13, 235.15, 235.16, 235.17, 235. 18 The Board of Vocational Nurse Examiners adopts the amendments to sec.sec.235.7, 235.11, 235.13, 235.15, 235.16, 235.17, and 235.18, concerning Application for Licensure. Section 235.7 is adopted with changes to the proposed text as published in the April 12, 1994, issue of the Texas Register (19 TexReg 2605). The section has been changed to read "...be allowed to retake the examination within one year of graduation, allowing three opportunities." Sections 235.11, 235.13, 235.15-235.18 are adopted without changes and will not be republished. These rules are adopted to clarify the examination process. No comments were received relative to the adoption of these rules. The amendments are adopted under Texas Civil Statutes, Article 4528c, sec.5(f), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. sec.235.7. Graduates of Vocational Nursing Programs. Applicants who fail the national examination must submit reexamination and testing service applications and fees. Applicants who fail the national examination will be allowed to retake the examination within one year of graduation, allowing three opportunities. Applicants who do not successfully pass the national examination within one year of graduation must repeat the entire curricula. 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 May 13, 1994. TRD-9440893 Marjorie A. Bronk, R.N., M.S.H.P. Executive Director Board of Vocational Nurse Examiners Effective date: June 3, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 835-2071, Ext. 203 22 TAC sec.sec.235.9, 235.10, 235.12 The Board of Vocational Nurse Examiners adopts the repeal of sec.sec.235.9, 235.10, and 235.12, concerning Application for Licensure, without changes to the proposed text as published in the April 12, 1994, issue of the Texas Register (19 TexReg 2606). The rules were repealed to allow for adoption of new rules under these rule numbers. No comments were received relative to the adoption of these repeals. The repeals are adopted under Texas Civil Statutes, Article 4528c, sec.5(f), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 13, 1994. TRD-9440894 Marjorie A. Bronk, R.N., M.S.H.P. Executive Director Board of Vocational Nurse Examiners Effective date: June 3, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 835-2071, Ext. 203 Issuance of Licenses 22 TAC sec.235.47, sec.235.48 The Board of Vocational Nurse Examiners adopts the repeal of sec.235.47 and sec.235.48, concerning Issuance of Licenses, without changes to the proposed text as published in the April 12, 1994, issue of the Texas Register (19 TexReg 2606). The adoption of these repeals allows for renumbering of rules and language changes. No comments were received relative to the adoption of these repeals. The repeals are adopted under Texas Civil Statutes, Article 4528c, sec.5(f), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 13, 1994. TRD-9440896 Marjorie A. Bronk, R.N., M.S.H.P. Executive Director Board of Vocational Nurse Examiners Effective date: June 3, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 835-2071, Ext. 203 22 TAC sec.sec.235.47-235.49 The Board of Vocational Nurse Examiners adopts new sec. sec.235.47-235.49, concerning Issuance of Licenses, without changes to the proposed text as published in the April 12, 1994, issue of the Texas Register (19 TexReg 2607). The rules adopted to incorporate specific guidelines and extensive language changes. No comments were received relative to the adoption of these rules. The new sections are adopted under Texas Civil Statutes, Article 4528c, sec.5(f), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 13, 1994. TRD-9440895 Marjorie A. Bronk, R.N., M.S.H.P. Executive Director Board of Vocational Nurse Examiners Effective date: June 3, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 835-2071, Ext. 203 Chapter 237. Continuing Education Continuing Education 22 TAC sec.237.15 The Board of Vocational Nurse Examiners adopts the amendment to sec.237.15, concerning Continuing Education, without changes to the proposed text as published in the April 12, 1994, issue of the Texas Register (19 TexReg 2607). The rule is adopted to comply with the revisions of the Vocational Nurse Act effective September 1, 1993. No comments were received relative to the adoption of this rule. The amendment is adopted under Texas Civil Statutes, Article 4528c, sec.5(f), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 13, 1994. TRD-9440897 Marjorie A. Bronk, R.N., M.S.H.P. Executive Director Board of Vocational Nurse Examiners Effective date: June 3, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 835-2071, Extension 203 Part XV. Texas State Board of Pharmacy Chapter 281. General Provision 22 TAC sec.281.74 The Texas State Board of Pharmacy adopts new sec.281.74 concerning Charges for Public Records, with one change to the proposed text as published in the March 29, 1994, issue of the Texas Register (19 TexReg 2166). The change is to correct an error in submission and changes to clause (B)(i) of paragraph (1) to read "0.10 per page." The rules implement the provisions of House Bill 1009 passed by the 73rd Texas Legislature which amended the Texas Open Records Act to require each state agency to specify, by rule, the charges the agency will make for copies of public records. This bill states that a state agency may establish a charge for a copy of a public record that is equal to the full cost to the agency in providing the copy. This bill also requires the General Services Commission (GSC) to specify by rule the methods and procedures that a state agency may use in determining the amounts that the agency should charge to recover the full cost to the agency in providing copies of public records. This section establishes the charges the agency will assess for copies of public records. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Pharmacy Act (Texas Civil Statutes,Article 4542a-1), sec.16(a), which gives the Board authority to adopt rules for the proper administration and enforcement of the Texas Pharmacy Act and House Bill 1009 -Chapter 428, Acts, 73rd Legislature, Regular Session (1993). sec.281.74. Charges for Public Records. In accordance with the Act, 73rd Legislature, Regular Session (1993), Chapter 428, sec.5, the following specifies the charges the Texas State Board of Pharmacy will make for copies of public records. These charges are based on the full cost to the agency for providing the copies. (1) Definitions. The following words and terms, when used in the section, shall have the following meanings, unless the context clearly indicates otherwise. (A) Standard-size copy-A printed impression on one side of a piece of paper that measures up to 8 1/2 by 14 inches. Each side of the paper on which an impression is made is counted as a single copy. A piece of paper printed on both sides is counted as two copies. (B) Copy charge-A charge for costs incurred in copying standard-size paper copies reproduced by an office machine copier or a computer printer. (C) Postage and shipping charge-A charge for costs incurred in sending information to a requestor, such as cost of postage, envelope, or long-distance phone call for facsimile transmission. (D) Personnel Charge-A charge imposed for costs incurred for personnel time expended in processing a request for public information. This charge may include the time any employee spends reading/reviewing the initial request for records, making copies of records, conducting a file search, conducting a computer search, preparing and reviewing the response to the records request (administrative oversight/review), and any other type of personnel time necessary to respond to the request. (E) Overhead Charge-A charge for direct and indirect costs incurred in addition to the personnel charge. This charge covers such costs as depreciation of capital assets, rent, maintenance and repair, and utilities. (F) Microfiche and microfilm charge-A charge for costs incurred for making a copy of microfiche or microfilm. (G) Remote document retrieval charge-A charge for costs incurred in obtaining information not in current use in remote storage locations. (H) Computer Resource Charge-A charge for costs incurred in obtaining information on computers based on the amortized cost of acquisition, lease, operation, and maintenance of computer resources. This charge may also include programming time if a request requires a programmer to enter data in order to execute an existing program or create a new program so that requested information may be accessed. (I) Readily Available Information-Information that is readily available may include any information that does not fall under the "Not Readily Available Information" defined as follows. (J) Not Readily Available Information-Information that is not readily available includes information that requires personnel to locate and retrieve a specific file, review the file to locate the record, and replace the file after the record has been located. Information that is not readily available also includes information that requires personnel review to determine if the information is what the requestor has asked for, or a review to determine if the records contain information confidential under the Texas Pharmacy Act or other law. Information that is not readily available includes, but is not limited to: (i) information in pharmacist licensing files; (ii) information in pharmacy licensing files; (iii) information in compliance files; (iv) information in adjudicative files; (v) information in personnel files; and (vi) information in the agency's computerized data base system. (2) Charges. (A) For one to 50 standard-size copies of readily available information, the charge shall be $0.10 per page. (B) For 51 pages or more of readily available information, or any quantity of not readily available information, the charge shall be the sum of the following: (i) $0.10 per page; (ii) personnel charge in an amount reflecting the average hourly cost for classified state employees as determined from time to time by the General Services Commission; (iii) overhead charge in an amount to be determined in accordance with the guidelines of the General Services Commission. (iv) microfiche and microfilm charge (if applicable) in an amount equal to the actual cost to the agency of the reproduction, or in accordance with General Services Commission Guidelines; (v) remote document retrieval charge (if applicable) in an amount equal to the actual cost to the agency of the retrieval or in accordance with General Services Commission Guidelines; (vi) computer resource charge (if applicable), including any programming time, in an amount equal to the cost to the agency, or in accordance with General Services Commission Guidelines; and (vii) actual cost of miscellaneous supplies (if applicable) in an amount equal to the actual cost to the agency. (C) If a request for information may result in charges exceeding $100, the agency may require the requestor to make a deposit in the anticipated approximate amount of the charges, which may be applied to the costs incurred in responding to the request. (D) If a particular request may involve considerable time and resources to process, the agency may advise the requesting party of what may be involved and provide an estimate of date of completion and the charges that may result. (E) The agency has the discretion to furnish public records without charge or at a reduced charge if the agency determines that a waiver or reduction is in the public interest. (F) Nothing herein shall prevent the agency from charging for its publications, such as the Texas State Board of Pharmacy Law Reference Manual, or portions thereof. 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 May 11, 1994. TRD-9440744 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: June 1, 1994 Proposal publication date: March 29, 1994 For further information, please call: (512) 832-0661 Chapter 283. Licensing Requirements 22 TAC sec.283.2, sec.283.4 The Texas State Board of Pharmacy adopts amendments to sec.283.2 and sec.283.4 concerning Definitions and Internship Requirements. Section 283.4 is adopted with changes to the proposed text as published in the March 29, 1994, issue of the Texas Register (19 TexReg 2167). The change to sec.283.4 is the relettering of the subparagraphs under paragraph (1) to eliminate the inclusion of two subparagraphs (C). The subparagraphs should now be relettered (A)-(K). Section 283.2 is adopted without changes and will not be republished. These rule amendments allow an out-of-state student in an approved out-of-state college of pharmacy program to be designated an intern while they are working in a Texas licensed facility and specify the requirements for an out-of-state college of pharmacy internship program to be an approved internship program in Texas. No comments were received on the amendments. The amendments are adopted under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1): sec.17(a), which gives the Board the authority to regulate the training, qualificitions, and employment of pharmacist-interns; and sec.16(a), which gives the Board the authority to adopt rules for the proper administration and enforcement of the Act. sec.283.4. Internship Requirements. (a)-(b) (No change.) (c) Colleges of Pharmacy Internship Programs. (1) Texas Colleges of Pharmacy Internship Programs. (A) The board shall review for approval Texas colleges of pharmacy internship programs on or before September 1 of each fiscal year. The purpose of the board review will be to determine if such internship programs demonstrate that the competencies listed in subsection (a) of this section are capable of being met by each student completing the internship. The board reserves the right to set conditions relating to the approval of such programs. (B) The Texas colleges of pharmacy shall determine through examinations that each student completing the college internship program meets the competencies listed in subsection (a) of this section. (C) A maximum of 500 hours of the total 1,500 hours internship experience requirement may be awarded to a student who is registered for and participates in a board-approved internship and who lacks more than 30 credit hours of work towards a professional degree in pharmacy. Such student may not perform the duties of a pharmacist-intern as described in sec.283.5 of this title (relating to Pharmacist-Intern Duties) except in a pharmacy under the operation and control of a university that has a college or school of pharmacy, provided such student is under the direct supervision of a pharmacist licensed and in good standing with the board, who is a member of the faculty or staff of the respective college or school of pharmacy. (D) A student who is registered for and participates in a board-approved internship program at a Texas college of pharmacy and who is lacking no more than 30 credit hours of work towards a professional degree in pharmacy may be designated as a pharmacist-intern and may perform the duties of a pharmacist- intern as described in sec.283.5 of this title (relating to Pharmacist-Intern Duties) in the presence of and under the direct supervision of a board-approved preceptor. Pharmacist-interns may perform the duties of a pharmacist-intern as described in sec.283.5 of this title (relating to Pharmacist-Intern Duties) only during times and in sites assigned by the respective colleges of pharmacy. (E) Internship experience shall be gained under a pharmacist licensed by the board and approved as a preceptor by the board. (F) All internship sites shall be approved by the board. Externship sites shall be pharmacies licensed and in good standing with the board. (G) Any individual having completed an internship program may no longer be designated a pharmacist-intern, except as provided in subsection (d) of this section. (H) Prior to taking the licensure examination any applicant participating in a Texas college-based internship shall complete the requirements of such internship. (I) Pharmacist-interns completing a board-approved Texas college-based structured internship divided equitably among community, institutional, and clinical pharmacy practice will be awarded 1,500 hours of internship experience. No credit shall be awarded for didactic experience. (J) If a Texas college of pharmacy determines through evaluation and examination that an individual student is competent in institutional practice, the college may petition the board to allow such student to substitute any or all of the institutional practice component of the internship with practical experience substantially related to the practice of pharmacy, such as practical experience in pharmaceutical manufacturing, nuclear pharmacy, or pharmacy administration. (K) If a Texas college of pharmacy determines through evaluation and examination that an individual student is competent in community practice, the college may petition the board to allow such student to substitute any or all of the community practice component of the internship with practical experience substantially related to the practice of pharmacy, such as practical experience in pharmaceutical manufacturing, nuclear pharmacy, or pharmacy administration. (2) Other Colleges of Pharmacy Internship Programs. (A) The board may designate as a pharmacist-intern a student enrolled in a College of Pharmacy not located in Texas if: (i) the professional degree program of the college of pharmacy has been accredited by ACPE and meets the requirements of the board: (ii) the board reviews the school-based structured internship program and determines that the program or part of the program to be completed in Texas is substantially equivalent to the Texas colleges of pharmacy internship programs approved by the board under paragraph (1) of this subsection; (iii) during the time the student is working as a pharmacist-intern, the student is working in a pharmacy licensed in Texas under the supervision of a board approved preceptor; and (iv) the pharmacist-intern complies with the provisions of subsection (e) of this section and sec.283.5 of this title (relating to Pharmacist-Intern Duties). (B) Internship experience earned in the program specified in sub-paragraph (A) of this paragraph shall not be reported to the board but may be reported to the board of pharmacy in the state in which the out-of-state college of pharmacy is located. (C) Internship experience earned in the program described in sub-paragraph (A) may be applied toward the internship hours requirement specified in subsection (b) of this section only if approved and certified to the board by the board of pharmacy in the state in which the college of pharmacy is located. (d) -(e) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 11, 1994. TRD-9440743 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: June 1, 1994 Proposal publication date: March 29, 1994 For further information, please call: (512) 832-0661 Chapter 291. Pharmacies Community Pharmacy (Class A) 22 TAC sec.sec.291.31-291.36 The Texas State Board of Pharmacy adopts amendments to sec.sec.291.31-291.36 concerning Definitions, Personnel, Operational Standards, Records, Triplicate Prescription Requirements, and Class A Pharmacies Compounding Sterile Pharmaceuticals. Section 291.33 and sec.291.35 are adopted with changes to the proposed text as published in the March 29, 1994, issue of the Texas Register (19 TexReg 2168). The change to sec.291.33 was the addition of a new subparagraph (F) in 291.33(i)(3) in response to comments received. The change to sec.291.35 was non-substantive change to sec.291.35(h)(6) to clarify the reference to another section of the rules. Sections 291.31, 291.32, 291.34, and 291.36 are adopted without changes and will not be republished. These amendments implement recommendations from the Board's Ad Hoc Advisory Committee on Standards for Pharmacy Compounding which specify minimum standards for the compounding of non-sterile drug products in licensed pharmacies and make changes to the rules necessary to be consistent with changes made to the Texas Pharmacy Act, as amended by Senate Bill 472 passed by the 73rd Legislature. Two letters of comment were received. The Texas Federation of Drug Stores (TFDS) suggested that sec.291.33(i)(3)(E) be amended so that the extensive documentation and recordkeeping required under this paragraph not be required for single simple compounding processes such as mixing two oral liquid cough syrups. The Board agrees with this comment and has amended the paragraph by adding a new subparagraph (F) which requires a less extensive record for simple compounding processes. The Texas Pharmaceutical Association (TPA) made two suggestions regarding these rules. They suggested that "some form of clarification (in the regulation or through policy)" be adopted to indicate that the information requested to be placed on the back of the triplicate prescription in sec.291. 35(e)(2)(C) could be placed on a label or some other piece of paper stapled to or affixed to the back of the prescription form." The Board agreed that this was a reasonable request and stated that since the rule requires that the information be recorded on the prescription form, the policy of the Agency is that the information may be written on the actual form or placed on a label or other piece of paper affixed or stapled to the back of the form. TPA also suggested that the words ". . . but shall not solicit business by promoting to compound specific drug products," be removed from sec.291.33(2)(E). The Board disagreed with this comment because if this statement were removed pharmacists may believe that they can promote the compounding of specific products. This would be misleading to the pharmacist. Federal Policy and the Texas Pharmacy Act in the definition of "manufacturing" indicate that the promotion of specific products is a part of the manufacturing process and not a part of compounding within the practice of pharmacy. The amendments are adopted under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1): sec.4, which specifies that the purpose of the Texas Pharmacy Act is to protect the public partly through the effective control and regulation of the practice of pharmacy; sec.5(38), which defines the term "Practice of Pharmacy" to include responsibility for compounding and labeling of drugs and devices; and sec.16(a), which gives Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the Act. sec.291.33. Operational Standards. (a) Licensing requirements. (1)-(8) (No change.) (9) A Class A (Community) pharmacy engaged in the compounding of sterile pharmaceuticals shall comply with the provisions of sec.291.36 of this title (relating to Class A Pharmacies Compounding Sterile Pharmaceuticals). (b) Environment. (1) (No change.) (2) Special Requirements for Non-Sterile Compounding. (A) Pharmacies regularly engaging in compounding shall have a designated and adequate area for the safe and orderly compounding of drug products, including the placement of equipment and materials. Pharmacies involved in occasional compounding shall prepare an area prior to each compounding activity which is adequate for safe and orderly compounding. (B) Only personnel authorized by the responsible pharmacist shall be in the immediate vicinity of a drug compounding operation. (C) A sink with hot and cold running water exclusive of rest room facilities, shall be accessible to the compounding areas and be maintained in a sanitary condition. Supplies necessary for adequate washing shall be accessible in the immediate area of the sink and include: (i) soap or detergent; and (ii) air-driers or single-use towels. (D) If drug products which require special precautions to prevent contamination, such as penicillin, are involved in a compounding operation, appropriate measures, including dedication of equipment for such operations or the meticulous cleaning of contaminated equipment prior to its use for the preparation of other drug products, must be utilized in order to prevent cross- contamination. (3) Security. (A)-(B) (No change.) (c) Prescription Dispensing and Delivery. (1) (No change.) (2) Prospective Drug Use Review. (A)-(B) (No change.) (3) (No change.) (4) Labeling. At the time of delivery of the drug, the dispensing container shall bear a label with at least the following information: (A) -(J) (No change.) (K) if the pharmacist has selected a generically equivalent drug pursuant to the provisions of the Act, sec.40, the statement "Substituted for Brand Prescribed" or "Substituted for 'Brand Name'" where "Brand Name" is the actual name of the brand name product prescribed; (L) (No change.) (M) the name and strength of the actual drug product dispensed, unless otherwise directed by the prescribing practitioner. (i) The name shall be either: (I) (No change.) (II) if no brand name, then the generic name and name of the manufacturer or distributor of such generic drug. (The name of the manufacturer or distributor may be reduced to an abbreviation or initials, provided the abbreviation or initials are sufficient to identify the manufacturer or distributor. For combination drug products or non-sterile compounded drug products having no brand name, the principal active ingredients shall be indicated on the label). (ii) Except as provided in subparagraph (K) of this paragraph, the brand name of the prescribed drug shall not appear on the prescription container label unless it is the drug product actually dispensed. (d) Equipment and Supplies. (1) Class A pharmacies dispensing prescription drug orders shall have the following equipment and supplies: (A) typewriter or comparable equipment; (B) refrigerator; (C) adequate supply of child-resistant, light-resistant, and tight containers; (D) adequate supply of prescription, poison, and other applicable labels; (E) appropriate equipment necessary for the proper preparation of prescription drug orders; and (F) metric-apothecary weight and measure conversion charts; and (2) If the community pharmacy compounds prescription drug orders, the pharmacy shall: (A) have a Class A prescription balance, or analytical balance and weights which shall be properly maintained and inspected at least every three years by the appropriate authority as prescribed by local, state, or federal law or regulations; and (B) have equipment and utensils necessary for the proper compounding of prescription drug orders. Such equipment and utensils used in the compounding process shall be: (i) of appropriate design, appropriate capacity, and be operated within designed operational limits; (ii) of suitable composition so that surfaces that contact components, in- process material, or drug products shall not be reactive, additive, or absorptive so as to alter the safety, identity, strength, quality, or purity of the drug product beyond acceptable standards; (iii) cleaned and sanitized immediately prior to each use; and (iv) routinely inspected, calibrated (if necessary), or checked to ensure proper performance. (e) (No change.) (f) Drugs. (1)-(3) (No change.) (4) Drugs, Components, and Materials Used in Non-Sterile Compounding. (A) Drugs used in non-sterile compounding shall: (i) meet official compendia requirements; or (ii) be of a chemical grade in one of the following categories: (I) Chemically Pure (CP); (II) Analytical Reagent (AR); or (III) American Chemical Society (ACS); or (iii) in the professional judgement of the pharmacist, be of high quality and obtained from acceptable and reliable alternative sources. (B) All components shall be stored in properly labeled containers in a clean, dry area, under proper temperatures as defined in paragraph (1) of this subsection. (C) Drug product containers and closures shall not be reactive, additive, or absorptive so as to alter the safety, identity, strength, quality, or purity of the compounded drug product beyond the desired result. (D) Components, drug product containers, and closures shall be rotated so that the oldest stock is used first. (E) Container closure systems shall provide adequate protection against foreseeable external factors in storage and use that can cause deterioration or contamination of the compounded drug product. (g)-(h) (No change.) (i) Non-Sterile Compounding. (1) Purpose. The purpose of this subsection is to provide standards for the compounding of non-sterile drug products in licensed pharmacies for dispensing and/or administration to humans or animals. Licensed pharmacies compounding non- sterile drug products shall comply with the following paragraphs in addition to all other provisions of sec.sec.291.31-291.35 of this title (relating to Definitions, Personnel, Operational Standards, Records, and Triplicate Prescription Requirements). (2) General Requirements. (A) Non-sterile drug products may be compounded in licensed pharmacies: (i) when there exists a valid pharmacist/patient/prescriber relationship and upon the presentation of a valid prescription drug order; or (ii) in anticipation of future prescription drug orders based on routine, regularly observed prescribing patterns. (B) Non-sterile compounding in anticipation of future prescription drug orders must be based upon a history of receiving valid prescriptions issued within an established pharmacist/patient/prescriber relationship, provided, that in the pharmacist's professional judgement the quantity prepared is stable for the anticipated shelf time. (i) The pharmacist's professional judgement should be based on criteria such as: (I) physical and chemical properties of active ingredients; (II) use of preservatives and/or stabilizing agents; (III) dosage form; (IV) storage conditions; and (V) scientific, laboratory, or reference data. (ii) Documentation of the criteria used to determine the stability for the anticipated shelf time must be maintained with the non-sterile compounding record. (iii) Any product compounded in anticipation of future prescription drug orders shall be labeled. Such label shall contain: (I) name and strength of the compounded medication or list of the active ingredients and strengths; (II) facility's lot number; (III) "use by" date as determined by the pharmacist using appropriate documented criteria as outlined in subparagraph (B)(i) of this paragraph; and (IV) quantity or amount in the container. (C) Commercially available drug products may be compounded for individual patients under the provisions of subparagraph (A) of this paragraph provided the prescribing practitioner has requested that the drug product be compounded; (D) Drug products may be compounded for the exclusive use of the pharmacy where the products are compounded. Compounded drug products may not be distributed for resale, including distribution to pharmacies under common ownership or control, except that a practitioner may obtain compounded drug products for administration to patients, but not for dispensing. Products compounded for physician administration to patients shall be labeled. Such label shall contain: (i) the statement: "For Office Use Only;" (ii) name and strength of the compounded medication or list of the active ingredients and strengths; (iii) facility's control number; (iv) "use by" date as determined by the pharmacist using appropriate documented criteria as outlined in subparagraph (B)(i) of this paragraph; and (v) quantity or amount in the container. (E) Compounding pharmacies/pharmacists may advertise and promote the fact that they provide non-sterile prescription compounding services, but shall not solicit business by promoting to compound specific drug products. (3) Compounding Process. (A) Any person with an apparent illness or open lesion that may adversely affect the safety or quality of a drug product being compounded shall be excluded from direct contact with components, drug product containers, closures, any materials involved in the compounding process, and drug products until the condition is corrected. (B) Personnel engaged in the compounding of drug products shall wear clean clothing appropriate to the operation being performed. Protective apparel, such as coats/jackets, aprons, hair nets, gowns, hand or arm coverings, or masks shall be worn as necessary to protect personnel from chemical exposure and drug products from contamination. (C) At each step of the compounding process, the pharmacist shall ensure that components used in compounding are accurately weighed, measured, or subdivided as appropriate to conform to the formula being prepared. (D) The pharmacist shall establish and conduct quality control procedures to monitor the output of compounded drug products for uniformity and consistency such as capsule weight variations, adequacy of mixing, clarity, or pH of solutions. Such procedures shall be documented in the non-sterile compounding record. (E) Compounding records for all drugs compounded in anticipation of future prescription drug orders shall be maintained by the pharmacy electronically or manually as part of the prescription, formula record, formula book or compounding log and shall include: (i) the date of preparation; (ii) facility's lot number; (iii) manufacturer's lot number(s) and expiration date(s) for all components (If the original manufacturer's lot number(s) and expiration date(s) are not known, the pharmacy shall record the source of acquisition of the components.); (iv) a complete formula, including methodology and necessary equipment; (v) signature or initials of the pharmacist or supportive person performing the compounding; (vi) signature or initials of the pharmacist responsible for supervising supportive personnel and conducting in-process and finals checks of compounded products if supportive personnel perform the compounding function; (vii) the brand name(s) of the raw materials, or if no brand name the generic name(s) and the name(s) of the manufacturer(s) of the raw materials; (viii) the quantity in units of finished products or grams of raw materials; (ix) the package size and the number of units prepared; (x) documentation of performance of quality control procedures; and (xi) the criteria used to determine the "use by" date. (F) Compounding records for all drugs compounded pursuant to an individual prescription and not in anticipation of future prescription drug orders shall be maintained by the pharmacy electronically or manually as part of the prescription, formula record, formula book or compounding log and shall include: (i) the date of preparation; (ii) a complete formula which includes the brand name(s) of the raw materials, or if no brand name the generic name(s) and name(s) of the manufacturer(s) of the raw materials and the quantities of each; (iii) signature or initials of the pharmacist or supportive person performing the compounding; (iv) signature or initials of the pharmacist responsible for supervising supportive personnel and conducting in-process and finals checks of compounded products if supportive personnel perform the compounding function; (v) the quantity in units of finished products or grams of raw materials; (vi) the package size and the number of units prepared; and (vii) documentation of performance of quality control procedures. Documentation of the performance of quality control procedures is not required if the compounding process involves the mixing of two or more commercially available oral liquids or commercially available preparations when the final product is intended for external use. sec.291.35. Triplicate Prescription Requirement. (a)-(d) (No change.) (e) Partial dispensing of Schedule II controlled substances. (1) If unable to supply the full quantity called for in a written or emergency oral prescription for a Schedule II controlled substance, the pharmacist may partially dispense the prescription and complete the prescription under the following conditions. (A) The pharmacist notes the initial partial quantity dispensed on the face of the written prescription or emergency oral prescription. (B) The remaining portion of the prescription is dispensed within 72 hours of the first partial dispensing. No further quantity may be dispensed beyond 72 hours without a new prescription. (C) If the remaining portion of the prescription is not or cannot be dispensed within the 72-hour period, the pharmacist shall notify the prescribing practitioner. (2) A pharmacist may dispense a prescription for a Schedule II controlled substance in partial quantities to include individual dosage units, for a patient in a long-term facility (LTCF) or for a patient with a medical diagnosis documenting a terminal illness under the following conditions. (A) The pharmacist must record on the prescription whether the patient is "terminally ill" or an "LTCF patient." A prescription that is partially filled and does not contain the notation "terminally ill" or "LTCF patient" shall be deemed to have been filled in violation of the Texas Controlled Substances Act. (B) If there is any question about whether a patient may be classified as having a terminal illness, the pharmacist must contact the practitioner prior to partially filling the prescription. Both the pharmacist and the practitioner have a corresponding responsibility to assure that the controlled substance is for a terminally ill patient. (C) For each partial dispensing, the dispensing pharmacist shall record on the back of Copy 1 and Copy 2 of the prescription the: (i) date of the partial dispensing; (ii) quantity dispensed; (iii) remaining quantity authorized to be dispensed; and (iv) identification of the dispensing pharmacist. (D) Prior to any subsequent partial dispensing the pharmacist must determine that the additional partial dispensing is necessary. (E) The total quantity of the Schedule II controlled substances dispensed in all partial dispensings must not exceed the total quantity prescribed. (F) Schedule II prescriptions for patients in a long-term care facility or patients with a medical diagnosis documenting a terminal illness shall be valid for a period not to exceed 30 days from the issue date unless sooner terminated by discontinuance of the medication. (f) Exceptions to use of triplicate prescriptions. (1)-(2) (No change. ) (g) Pharmacist responsibilities. (1)-(3) (No change.) (4) Within 30 days from the date a pharmacist fills a triplicate prescription or no later than the 30th day after completion of a prescription dispensed under subsection (e)(2) of the section, the pharmacy is required to mail copy 1 of the form to the Texas Department of Public Safety, Triplicate Prescription Section, P.O. Box 4087, Austin, Texas 78773. (5) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 11, 1994. TRD-9440742 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: June 1, 1994 Proposal publication date: March 29, 1994 For further information, please call: (512) 832-0661 Home and Community Service Support Agency Pharmacy (Class F) 22 TAC sec.sec.291.111-291.115 The Texas State Board of Pharmacy adopts new sec.sec.291.111-291.115, concerning purpose, definitions, personnel, operational standards, and records in a Class F pharmacy, with changes to the proposed text as published in the March 29, 1994, issue of the Texas Register. These rules provide standards in the conduct and practice activities of a Class F pharmacy and implement the provisions of Senate Bill 472, passed by the 73rd Legislative Session, which created a new class of pharmacy, a Class F pharmacy. A public hearing for the purpose of receiving comment on the proposed rules was as held at 9:00 a.m. on May 3, 1993, at 1812 Centre Creek Drive, Room 203, Austin, Texas 78754. Six persons presented oral testimony at the public hearing and the Agency received five letters of written comment. The comments and the Board's response to these comments may be summarized as follows. The Texas Association of Home Care, Visiting Nurses Association, and three individuals commented that the rules as published do not fulfill the intent of the law because they limit the provision of the authorized drugs to nurses for "emergency administration" to patients. All of these individuals suggested that language regarding patient specific provision, which was originally submitted to the Board at their February 15, 1994, meeting, be added to the rules. The Texas Pharmaceutical Association, and one individual disagreed with these comments and suggested that the Board adopt the rules as proposed. The Board agreed with the comments that wanted patient specific provision allowed and has added language to the rules which allows the Class F Pharmacy to provide drugs to patients in accordance with a system of control and accountability supervised by the pharmacist-in-charge of the facility. The Texas Society of Hospital Pharmacists and one individual suggested that the Board should allow a Class A or Class C Pharmacy to operate as a Class F Pharmacy under the existing Pharmacy license and not require these entities to obtain a separate Class F license. The Board agrees with this concept and has asked staff to research the legality of the issue and if possible bring language back to the Board to amend the Class A and Class C Rules to allow these licensees to operate a Class F Pharmacy without obtaining an additional license. One individual disagreed with the requirement that a pharmacy license should be required for these few drugs. The Board disagreed with this comment. The Class F License was created by the 73rd Legislature to allow a home and community support services agency to be able to possess these drugs. One individual suggested that the Board should consider adding more drugs to the list of drugs this type of pharmacy can possess. The Board disagrees with this comment since the legislation which created the Class F license specifically limited the license to the drugs listed in the rules. One individual suggested that the rules should require a Class F Pharmacy to post the pharmacy license. The Board disagreed with this comment. The purpose for the posting of the pharmacy license is to notify the general public that the pharmacy is properly licensed. It is anticipated that the general public will not enter a Class F Pharmacy and that virtually all of the drugs provided by this type of pharmacy will be delivered to the patient's residence. The rules are adopted under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1): sec.17(b)(2), which gives the Board the authority to specify minimum standards for professional environment, technical equipment, and security in the prescription dispensing area; sec.17(b)(3), which gives the Board the authority to specify minimum standards for drug storage, maintenance of prescription drug records, and procedures for the delivery, and providing of prescription drugs or devices; sec.29(b)(6), which established the Class F pharmacy; Section 29(c)(6) which establishes the requirements for pharmacist supervision in a Class F pharmacy; sec.29(d), which gives the Board the authority to establish the standards that each pharmacy and its employees or personnel involved in the practice of pharmacy shall meet to qualify for the licensing or relicensing as a pharmacy in each classification; and sec.16(a), which gives the Board the authority to adopt rules for the proper administration and enforcement of the Act. sec.291.111. Purpose. The purpose of these sections is to provide standards in the conduct, practice activities, and operation of a pharmacy located in a facility that is licensed under the Health and Safety Code, Chapter 142, as a Home and Community Support Services Agency. A Class F Pharmacy license is issued for the purpose of dispensing, distributing, or administering to agency patients under physicians' orders the following dangerous drugs: sterile water for injection and irrigation, sterile saline for injection and irrigation, and heparin flush kits for intravenous flushes. sec.291.112. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Act-The Texas Pharmacy Act, Texas Civil Statutes, Article 4542a-1, as amended. Agency-A home and community support services agency that is licensed under Health and Safety Code, Chapter 142. Administer The direct application of a prescription drug by injection, inhalation, ingestion, or any other means to the body of a patient by: (A) a practitioner or an authorized agent under his supervision or other person authorized by law; or (B) the patient at the direction of a practitioner. Authorized dangerous drug-Any of the following dangerous drugs which are required to bear the legend "Caution: federal law prohibits dispensing without prescription:" (A) sterile water for injection or irrigation; (B) sterile saline for injection or irrigation; and (C) heparin flush kits for intravenous flushes. Board-The Texas State Board of Pharmacy. Continuous supervision -Supervision provided by the pharmacist-in-charge and/or another designated pharmacist, and consists of on-site and telephone supervision, routine inspection, and a policy and procedure manual. Controlled substance -A drug, immediate precursor, or other substance listed in Schedules I-V or Penalty Groups 1-4 of the Texas Controlled Substances Act, as amended or a drug, immediate precursor, or other substance included in Schedule I-V of the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended (Public Law 91-513). Dangerous drug -Any drug or device that is not included in Penalty Groups 1-4 of the Controlled Substances Act and that is unsafe for self-medication or any drug or device that bears or is required to bear the legend: (A) Caution: federal law prohibits dispensing without prescription; or (B) Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian. Deliver or delivery -The actual, constructive, or attempted transfer of a prescription drug or device or controlled substance from one person to another, whether or not for a consideration. Dispense-Preparing, packaging, compounding, or labeling for delivery a prescription drug or device in the course of professional practice to an ultimate user or his agent by or pursuant to the lawful order of a practitioner. Distribute-The delivery of a prescription drug or device other than by administering or dispensing. Pharmacist-A person licensed by the board to practice pharmacy. Pharmacist-in-charge-The pharmacist designated on a pharmacy license as the pharmacist who is responsible for a pharmacy's compliance with laws and rules pertaining to the practice of pharmacy. Practitioner- (A) a physician, dentist, podiatrist, veterinarian, or other person licensed or registered to distribute or dispense a prescription drug or device in the course of professional practice in this state; (B) a person licensed by another state in a health field in which, under Texas law, licensees in this state may legally prescribe dangerous drugs or a person practicing in another state and licensed by another state as a physician, dentist, veterinarian, or podiatrist, having a current Federal Drug Enforcement Administration registration number, and who may legally prescribe Schedule II -V controlled substances in such other state; or (C) a person licensed in the Dominion of Canada or the United Mexican States in a health field in which, under the laws of this state, a licensee may legally prescribe dangerous drugs; (D) does not include a person licensed under the Act. Provide-To supply one or more unit doses of an authorized dangerous drug to a patient. Standing delegation order-Written orders from a physician and designed for a patient population with specific diseases, disorders, health problems, or sets of symptoms, which provide authority for and a plan for use with patients presenting themselves prior to being examined or evaluated by a physician to assure that such acts are carried out correctly and are distinct from specific orders written for a particular patient. Standing medical order-Written orders, from a physician or the medical staff of an institution for patients which have been examined or evaluated by a physician and which are used as a guide in preparation for and carrying out medical and/or surgical procedures. Supportive personnel -Those individuals utilized in pharmacies whose responsibility it shall be to provide technical services that do not require professional judgment concerned with the preparation and distribution of drugs under the direct supervision of and responsible to a pharmacist. Texas Controlled Substances Act-The Texas Controlled Substances Act, Health and Safety Code, Chapter 481, as amended. sec.291.113. Personnel. (a) Pharmacist-in-charge. (1) General. (A) Each Class F pharmacy shall have one pharmacist-in-charge who is employed or under written agreement, at least on a consulting or part-time basis, but may be employed on a full time basis, if desired and who may be pharmacist-in-charge of more than one Class F pharmacy. (B) A written agreement shall exist between the agency and the pharmacist-in- charge, and a copy of the written agreement shall be made available to the board upon request. (2) Responsibilities. The pharmacist-in-charge shall have at a minimum, the responsibility for the following: (A) continuous supervision of registered nurses, licensed vocational nurses, physician assistants, supportive personnel, and assistants when such persons are carrying out the pharmacy related aspects of distribution; (B) documented periodic on-site visits to the Class F Pharmacy as specified in the rules either personally or by another designated pharmacist, to insure that the Class F Pharmacy is following set policies and procedures; (C) procurement and storage of drugs but he/she may receive input from other appropriate staff of the agency; (D) determining specifications of all drugs procured by the Class F Pharmacy; (E) maintenance of records of all transactions of the pharmacy as may be required by applicable law, and as may be necessary to maintain accurate control over and accountability for all authorized dangerous drugs; (F) development and periodic review of a policy and procedure manual for the pharmacy in conjunction with appropriate agency staff; and (G) meeting inspection and other requirements of the Texas Pharmacy Act and these sections. (b) Pharmacists. (1) The pharmacist-in-charge may be assisted by a sufficient number of additional pharmacists as may be required to operate the Class F pharmacy competently, safely, and adequately to meet the needs of the patients of the agency. (2) Such pharmacists shall assist the pharmacist-in-charge in meeting the responsibilities as outlined in subsection (a) of this section and in ordering, supervising, and accounting for authorized dangerous drugs. (3) All pharmacists shall be responsible for any delegated act performed by supportive personnel under his or her supervision. (c) Supportive personnel. (1) Qualifications. (A) Supportive personnel shall possess education and training necessary to carry out their responsibilities. (B) Supportive personnel shall be qualified to perform the pharmacy tasks assigned to them. (2) Duties. Duties include: (A) provision of authorized dangerous drugs to patients of the agency under the continuous supervision of a pharmacist according to standing delegation orders or standing medical orders and in accordance with written policies and procedures and completion of the label as specified in the rules; (B) distribution of authorized dangerous drugs to licensed nurses of the agency for administration to agency patients in accordance with written policies and procedures; (C) pre-labeling authorized dangerous drugs in original manufacturer containers under the supervision of a pharmacist with the pharmacist conducting the final check and affixing his or her signature to the appropriate quality control records; and (D) maintaining inventories of authorized dangerous drugs; (E) maintaining pharmacy records. (3) Absence of the pharmacist. The pharmacist-in-charge shall designate from among the supportive personnel a person acting within the scope of sec.sec.291.111-291.115 of this title (relating to Purpose, Definitions, Personnel, Operational Standards, and Records) to supervise the day to day pharmacy related operations of the Class F Pharmacy. sec.291.114. Operational Standards. (a) Licensing. (1) All Class F pharmacies shall be licensed by the board and renew such license annually with the board on a form provided by the board, following the procedures specified in sec.291.1 of this title (relating to Pharmacy License Application). (2) All Class F pharmacies shall provide a copy of their policy and procedure manual to the board with the initial license application. (3) The license form shall be signed by the pharmacist-in-charge of the Class F pharmacy. (4) The owner or managing officer of the agency shall sign the license form and shall agree to comply with the rules adopted by the board governing Class F pharmacies. (5) The license form shall be certified and state whether the Class F pharmacy is a sole ownership and give the name of the owner, or if a partnership, name all the managing partners, or if a corporation, name of all the managing officers. (6) A fee as specified in sec.291.6 of this title (relating to Pharmacy License Fees) will be charged for the issuance of a new license and for each renewal. (7) When a Class F pharmacy changes ownership, a new and separate license application must be filed with the board and the old license returned to the board's office. (8) A separate license is required for each principle place of business and only one pharmacy license may be issued to a specific location. (9) A Class F pharmacy shall notify the board in writing of any change in name or location within ten days. (10) A Class F pharmacy shall notify the board in writing within ten days of a change of the pharmacist-in-charge. (11) A Class F pharmacy shall notify the board in writing within ten days of permanent closing. (b) Environment. (1) General Requirements. (A) The Class F pharmacy shall have a designated area(s) for the storage of authorized dangerous drugs. (B) No person may operate a pharmacy which is unclean, unsanitary, or under any condition which endangers the health, safety, or welfare of the public. (C) The pharmacy shall comply with all federal, state, and local health laws and ordinances. (2) Security. (A) Only authorized personnel may have access to storage areas for authorized dangerous drugs. (B) All storage areas for authorized dangerous drugs shall be locked by key or combination, so as to prevent access by unauthorized personnel. (C) The pharmacist-in-charge shall be responsible for the security of all storage areas for authorized dangerous drugs including provisions for adequate safeguards against theft or diversion of authorized dangerous drugs, and records for such drugs. (D) The pharmacist-in-charge shall consult with agency personnel with respect to security of the pharmacy, including provisions for adequate safeguards against theft or diversion of authorized dangerous drugs, and records for such authorized dangerous drugs. (c) Equipment. If the Class F pharmacy pre-labels authorized dangerous drugs in original manufacturer container, the pharmacy shall maintain: (1) a typewriter or comparable equipment; and (2) an adequate supply of agency labels. (d) Library. A reference library shall be maintained which includes: (1) current copies of the following laws: (A) Texas Pharmacy Act and Rules; and (B) Texas Dangerous Drug Act and Rules; and (2) current patient information reference text or leaflets which provide patient information concerning the heparin or heparin flush kits. (e) Drugs. (1) Formulary. (A) The formulary shall be limited to the following dangerous drugs: (i) sterile water for injection or irrigation; (ii) sterile saline for injection or irrigation; and (iii) heparin flush kits. (B) The formulary shall not contain any other dangerous drugs or Schedule I-V controlled substances. (2) Storage. (A) Authorized dangerous drugs which bear the words: "Caution, federal law prohibits dispensing without prescription," shall be stored in secured storage areas. (B) All drugs shall be stored at the proper temperatures, as defined by the following terms: (i) cold Any temperature not exceeding 8 degrees Celsius (46 degrees Fahrenheit). A refrigerator is a cold place in which the temperature is maintained thermostatically between 2 degrees and 8 degrees Celsius (36 degrees and 46 degrees Fahrenheit). A freezer is a cold place in which the temperature is maintained thermostatically between -20 degrees and -10 degrees Celsius (-4 degrees and 14 degrees Fahrenheit); (ii) cool Any temperature between 8 degrees and 15 degrees Celsius (46 degrees and 59 degrees Fahrenheit). An article for which storage in a cool place is directed may, alternatively, be stored in a refrigerator, unless otherwise specified in the individual monograph; (iii) room temperature The temperature prevailing in a working area. Controlled room temperature is a temperature maintained thermostatically between 15 degrees and 30 degrees Celsius (59 degrees and 86 degrees Fahrenheit); (iv) warm Any temperature between 30 degrees and 40 degrees Celsius (86 degrees and 104 degrees Fahrenheit); (v) excessive heat Temperature above 40 degrees Celsius (104 degrees Fahrenheit); (vi) protection from freezing where, in addition to the risk of breakage of the container, freezing subjects a product to loss of strength or potency, or to destructive alteration of the dosage form, the container label bears an appropriate instruction to protect the product from freezing. (C) Any drug bearing an expiration date may not be distributed or administered beyond the expiration date of the drug. (D) Outdated drugs shall be removed from stock and shall be quarantined together until such drugs are disposed. (E) Controlled substances and dangerous drugs other than authorized dangerous drugs may not be stored at the Class F pharmacy. (3) Pre-Labeling of authorized dangerous drugs in original manufacturer's container. (A) Authorized dangerous drugs in an original manufacturer's container may be pre-labeled by: (i) a pharmacist in a pharmacy licensed by the board; or (ii) supportive personnel in a Class F Pharmacy, provided the authorized dangerous drugs and control records required by sec.291.115 of this title (relating to Records) are quarantined together until checked and released by a pharmacist. (B) The label shall bear: (i) the name and address of the agency; (ii) directions for use; (iii) name and strength of the drug(s)-if generic name, the name of the manufacturer or distributor of the drug(s); (iv) quantity; (v) lot number and expiration date; and (vi) appropriate ancillary label(s). (C) Records of pre-labeling shall be maintained according to sec.291.115 of this title (relating to Records) . (4) Distribution for Administration. (A) Patient Specific Provision. Authorized dangerous drugs may be provided to patients of the agency if: (i) authorized dangerous drugs are only provided to patients of the agency in accordance with the system of control and accountability for drugs which is developed and supervised by the pharmacist-in-charge; (ii) only authorized dangerous drugs are provided; (iii) authorized dangerous drugs are only provided in original manufacturer's containers that are appropriately pre-labeled as set out in paragraph (3) of this section; (iv) authorized drugs are only provided in accordance with standing delegation orders or standing medical orders; (v) the patient is provided with written information about heparin or heparin flush kits; (vi) records of provision are maintained according to sec.291.115 of this title (relating to Records); and (vii) at the time of provision, a licensed nurse or supportive person places the following information on the label: (I) patients name; (II) date of provision; and (III) practitioners name. (B) Distribution for Emergency Administration. Authorized dangerous drugs may be distributed to licensed nurses of the agency for emergency administration to patients of the agency provided: (i) authorized dangerous drugs are distributed in accordance with the system of control and accountability for drugs distributed by agency which is developed and supervised by the pharmacist-in-charge; (ii) only authorized dangerous drugs are distributed; (iii) authorized dangerous drugs are only distributed in original manufacturer's containers; (iv) such drugs are only distributed according to standing delegation orders or standing medical orders; if a quantity of the drug remains with the patient, a licensed nurse shall print on the label the following information: (I) patients name; (II) date of administration; and (III) practitioners name; (v) such drugs are stored under proper conditions as specified in the policy and procedure manual; (vi) the patient is provided with written information about heparin or heparin flush kits; and (vii) records of distribution for administration are maintained according to sec.291.115 of this title (relating to Records). (e) Policies and Procedures. (1) Written policies and procedures shall be developed and updated annually by the pharmacist-in-charge in conjunction with appropriate agency staff and implemented by the pharmacist-in-charge. (2) The policy and procedure manual shall include, but not be limited to, the following: (A) a current list of the names and addresses of the pharmacist-in-charge, pharmacist(s), supportive personnel designated to distribute authorized dangerous drugs, and the supportive personnel designated to supervise the day- to-day pharmacy related operations of the agency in the absence of the pharmacist; (B) functions of the pharmacist-in-charge, pharmacist(s) and supportive personnel; (C) a copy of written agreement between the pharmacist-in-charge and the agency; (D) date of last review/revision of policy and procedure manual; and (E) policies and procedures for: (i) security; (ii) sanitation; (iii) licensing; (iv) storage of drugs; (v) pre-labeling; (vi) distribution; (vii) patient information/training for heparin or heparin flush kits; (viii) supervision; (ix) drug destruction and returns; (x) drug procuring; (xi) receiving of drugs; (xii) delivery of authorized dangerous drugs; (xiii) record keeping; and (xiv) inspection. (f) Supervision. (1) The pharmacist-in-charge or other designated pharmacist shall be in contact with the agency on at least a monthly basis, either through written memos, documented telephonic conferences or on-site visits of the Class F Pharmacy. (2) The pharmacist-in-charge or other designated pharmacist shall personally visit the agency at least every six months to ensure that the agency is following set policies and procedures. sec.291.115. Records. (a) On-site Visits. A record of on-site visits of the Class F Pharmacy by the pharmacist-in-charge or other designated pharmacist shall be maintained and include the following information: (1) date of the visit; (2) pharmacist's evaluation of findings; (3) signature of the appropriate agency personnel receiving the pharmacist's evaluation of findings; (4) signature of the visiting pharmacist. (b) Invoices or Records of Receipt. (1) Each Class F Pharmacy shall maintain invoices and/or records of procurement in accordance with the requirements of the Texas Dangerous Drug Act and Rules and the Texas Pharmacy Act and Rules. (2) Invoices and records of receipt may be kept at a location other than the pharmacy. Any such records not kept at the pharmacy shall be available for inspection, upon request, within two business days. (c) Pre-Labeling. Records of pre-labeling of drugs in original manufacturer's containers shall include the following: (1) name of strength of the drug pre-labeled; (2) name of the manufacturer; (3) manufacturer's lot number; (4) manufacturer's expiration date; (5) quantity per package and number of packages; (6) date pre-labeled; (7) name of the supportive personnel affixing the label; and (8) the signature of the pharmacist who checks and releases the drug and the date of signing. (d) Patient Specific Provision. Records of authorized dangerous drugs provided to patients of the agency shall include; (1) patient name; (2) name of the person who provides the authorized dangerous drug; (3) date provided; (4) the name of the authorized dangerous drug and quantity provided; and (5) signature of the licensed nurse who received the drug for delivery to the patient. (e) Distribution for Emergency Administration. Records of authorized dangerous drugs distributed to licensed nurses of the agency for emergency administration to patients of the agency shall be maintained as follows. (1) Sign-out Record of Distribution to Licensed nurse. The record of distribution of an authorized dangerous drug to a licensed nurse shall include the following: (A) name of licensed nurse; (B) name of the person who distributed the authorized dangerous drug if different from the person listed in subparagraph (A) of this paragraph; (C) date distributed; and (D) the name of the authorized drug or device and quantity distributed. (2) Record of Emergency Administration to an Agency Patient. At the time of administration, the licensed nurse shall record the following information: (A) patient name; (B) name of the practitioner who ordered the drug; (C) name of the drug and strength; (D) date of administration and quantity administered; (E) signature of the individual administering the drug; and (F) quantity left at the patient's residence. 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 May 11, 1994. TRD-9440741 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: June 1, 1994 Proposal publication date: March 29, 1994 For further information, please call: (512) 832-0661 Chapter 309. Generic Substitution 22 TAC sec.309.3, sec.309.5 The Texas State Board of Pharmacy adopts amendments to sec.309.3 and sec.309.5, concerning Prescription Drug Orders and Labeling Requirements, without changes to the proposed text as published in the March 29, 1994, issue of the Texas Register. These amendments make changes to the rules necessary to be consistent with changes made to the Texas Pharmacy Act, as amended by Senate Bill 472 passed by the 73rd Legislature. One letter of comment was received from Leo Houser, representing the Pharmaceutical Manufacturers Association. Mr. Houser expressed the concerns of PMA regarding the provisions of sec.309.3(a)(2)(B) which allow a pharmacist to dispense, with the patient's consent and notification to the practitioner, a dosage form different from that prescribed, such as a tablet instead of a capsule or liquid instead of tablets. PMA believes that adoption of the proposed rule would pose a potential danger to the patient; raise significant legal questions, and has the potential to increase the cost of medical care services to Texas consumers. The Board disagrees with the comments of PMA and believes that adoption of this rule would not cause the problems expressed by Mr. Houser because of the limitations placed upon this substitution. In fact, the language in this rule is simply a repeat of a provision already allowed by law in sec.40(d) of the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1). The Pharmacy Act was amended to include this provision during the 73rd Legislative Session. Section 40(g) and this Act and this rule outline the following very stringent criteria which must be met before a pharmacist may substitute a dosage form: the dosage form must be of the same drug product, i.e., made by the same manufacturer; the patient must agree or consent to the substitution; the product substituted must contain the identical amount of the active ingredient as the dosage prescribed for the patient and not alter the desired clinical outcomes; the pharmacist may not substitute if the product prescribed is an enteric- coated or time-release product; and the physician must be notified of the substitution of the dosage form. The intent of this legislation was to allow the pharmacist to change the dosage form in cases where a prescription was issued for a dosage form which the patient could not use, e.g., a prescription written for a tablet when the patient cannot swallow a tablet. The amendments are adopted under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1), sec.16(a), which gives Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 11, 1994. TRD-9440740 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: June 1, 1994 Proposal publication date: March 29, 1994 For further information, please call: (512) 832-0661 Part XVII. Texas State Board of Plumbing Examiners Chapter 361. Administration General Provisions 22 TAC sec.361.9 The Texas State Board of Plumbing Examiners adopts new sec.361.9, concerning charges for copies of public records, without changes to the proposed text as published in the April 1, 1994, issue of the Texas Register (19 TexReg 2257). The rule is justified to recover the costs for providing copies of public records in circumstances where such a practice would provide the most benefit to the state. The rule provides the following with regard to charges for copies of public records: that the Board may charge the amounts set forth in the General Services Commission's rules, that it may charge actual costs for particular items set forth in the proposed new section, or that the Administrator may waive or reduce these charges if he determines that the waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public. No comments were received regarding adoption of the rule. The new rule is adopted under Texas Civil Statutes, Article 6252-17a, as amended by House Bill 1009, 73rd Legislature, which require agencies to adopt rules specifying charges for copies of open records. 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 May 9, 1994. TRD-9440785 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: June 2, 1994 Proposal publication date: April 1, 1994 For further information, please call: (512) 458-2145 Chapter 363. Examinations 22 TAC sec.363.11 The Texas State Board of Plumbing Examiners adopts an amendment to sec.363. 11, concerning requirements for providers of medical gas piping installation training programs, with changes to the proposed text as published in the April 1, 1994, issue of the Texas Register (19 TexReg 2258). The changes make the training requirements more general and change the program from a two-year to a four-year program. The rule is justified to enhance public health, safety, and welfare by ensuring medical gas systems have been installed in such a manner as to prevent infection and/or to prevent an unintended cross-connection of breathable and lethal gases because the installers of medical gas piping have undergone quality medical gas training programs. The rule sets forth the following requirements for providers of medical gas piping installation training programs: approval criteria for instructors, the required course outline and minimum hours of training for prospective instructors, provider's notification to the Board of the time(s) and place(s) where medical gas piping training will occur, and self-monitoring by the approved providers. No comments were received regarding adoption of the rule. The rule is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. sec.363.11. Endorsement Training Programs. Medical gas piping installation training programs. (1) Any person wishing to offer a training program in medical gas piping installation to the public must meet criteria as prescribed by the board. Instructors shall be employed by a program that meets certification requirements of the Central Education Agency or is exempted from the Central Education Agency certification requirements under Texas Education Code (Proprietary Schools and Veterans Education), sec.32.12(a)(5). Such persons shall provide to the administrator lesson plans and instructor credentials. The Board shall provide a course outline and the required minimum hours. (2) Training programs in medical gas piping installation shall be reviewed at least annually by the board to ensure that programs have been provided equitably across the State of Texas. (3) Periodically, the board shall review training programs in medical gas piping installation for quality in content and instruction. The board shall also respond to complaints regarding approved programs. (4) Prior to the effective date of the law, September 1, 1993, the board shall accept as certification those training and testing programs in medical gas piping installation that meet board criteria. (5) Instructors in medical gas piping installation will be required to successfully complete a board approved program. Instructors will be required to pass the board examination as well as successfully complete a board approved program of 160 clock hours which meets the following generic criteria. The Board will allow credit for approved courses. (A) 40 hours to provide the instructor with the basic educational techniques and instructional strategies necessary to plan and conduct effective training programs; (B) 40 hours to provide the instructor with the basic techniques and strategies necessary to analyze, select, develop, and organize instructional material for effective training programs; (C) 40 hours to provide the instructor with the basic principles, techniques, theories, and strategies to establish and maintain effective relationships with students, co-workers, and other personnel in the classroom, industry, and community; (D) 40 hours to provide the instructor with the basic principles, techniques, theories, and strategies to communicate effectively with the use of instructional media; and (E) to maintain his/her status as an approved instructor of medical gas piping installation training, the instructor shall undergo one of the aforementioned training programs every 12 months such that the entire training (160 hours) is complete within four years. (6) Each approved provider must notify the Board 30 days before conducting classes; the notice shall contain the time(s) and place(s) where the classes will occur. (7) Each approved provider will perform self-monitoring and reporting as required by the Board. 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 May 9, 1994. TRD-9440786 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: June 2, 1994 Proposal publication date: April 1, 1994 For further information, please call: (512) 458-2145 Chapter 365. Licensing 22 TAC sec.365.14 The Texas State Board of Plumbing Examiners adopts an amendment to sec.365. 14, concerning requirements for providers of continuing education programs, with changes to the proposed text as published in the April 1, 1994, issue of the Texas Register (19 TexReg 2259). The changes make the training requirements more general and change the program from a two-year to a four-year program. The rule is justified to enhance public health, safety, and welfare by ensuring each person has access to clean water because of plumbing installed and maintained by well-trained and competent plumbers who have undergone continuing education programs. The rule sets forth the following for providers of continuing education programs: approval criteria for instructors, the required course outline and minimum hours of training for prospective instructors, provider's notification to the Board of the time(s) and place(s) where continuing education programs will occur, and self-monitoring by the approved providers. No comments were received regarding adoption of the rule. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. sec.365.14. Continuing Education Programs. (a) Any person wishing to offer continuing education in plumbing to the public must meet criteria as prescribed by the board. Such persons shall provide to the board instructor credentials for board approval. The board will approve a course and textbook. The board shall provide a course outline and the required minimum hours. (b) Instructors must be licensees of the board, attend an instructor certification each year conducted by the board, be certified by the Central Education Agency, and be employed by a program that meets certification requirements of the Central Education Agency or is exempted from the Central Education Agency certification requirements under Texas Education Code (Proprietary Schools and Veterans Education, sec.32.12(a)(5). (c) Instructors will be required to successfully complete a board approved program of 160 clock hours which meets the following generic criteria. The board will allow credit for approved courses. (1) 40 hours to provide the instructor with the basic educational techniques and instructional strategies necessary to plan and conduct effective training programs; (2) 40 hours to provide the instructor with the basic techniques and strategies necessary to analyze, select, develop, and organize instructional material for effective training programs; (3) 40 hours to provide the instructor with the basic principles, techniques, theories, and strategies to establish and maintain effective relationships with students, co-workers, and other personnel in the classroom, industry, and community; (4) 40 hours to provide the instructor with the basic principles, techniques, theories, and strategies to communicate effectively with the use of instructional media; and (5) to maintain his/her status as an approved instructor of continuing education, the instructor shall undergo one of the aforementioned training programs every 12 months such that the entire training (160 hours) is complete within four years. (d) Continuing education program shall be reviewed annually by the board to ensure that programs have been provided equitably across the State of Texas. (e) Periodically, the board shall review continuing education programs for quality in content and instruction. The board shall also respond to complaints regarding approved programs. (f) Each approved provider must notify the Board 30 days before conducting classes; the notice shall contain the time(s) and place(s) where the classes will occur. (g) Each approved provider will perform self-monitoring and reporting as required by the Board. 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 May 9, 1994. TRD-9440787 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: June 2, 1994 Proposal publication date: April 1, 1994 For further information, please call: (512) 458-2145 Chapter 367. Enforcement 22 TAC sec.367.2 The Texas State Board of Plumbing Examiners adopts an amendment to sec.367. 2, concerning licensed plumbers' standards of conduct, without changes to the proposed text as published in the April 1, 1994, issue of the Texas Register (19 TexReg 2260). The rule is justified to enhance public health, safety, and welfare by ensuring each person has access to clean water because of plumbing installed and maintained by well-trained and competent plumbers as a result of their compliance with the Board's rules, regulations, and orders. The rule requires that a licensed plumber shall comply fully with all orders of the Texas State Board of Plumbing Examiners. No comments were received regarding adoption of the rule. The rule is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 9, 1994. TRD-9440784 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: June 2, 1994 Proposal publication date: April 1, 1994 For further information, please call: (512) 458-2145 22 TAC sec.367.3 The Texas State Board of Plumbing Examiners adopts an amendment to sec.367. 3, concerning the use of a master plumber's license in contracting for plumbing work, with changes to the proposed text as published in the April 1, 1994, issue of the Texas Register (19 TexReg 2260). The change clarifies that if the other conditions are met, a master plumber may use his/her license for more than one entity. The rule will enhance public assurance that contracted plumbing work is performed with the direct participation of a master plumber. The requirement that licensed plumbers be continuously on the job to supervise non-licensed personnel is not a new requirement. The rule delineates what a master plumber and a firm, company, or corporation may and may not do with regard to using the master plumber's license in conjunction with contracting for plumbing work by the master plumber and the firm, company, or corporation. One comment was received from Don Nelson, Chief Examiner/Field Department (Texas State Board of Plumbing Examiners). He supported the rule as proposed and noted that since the Board was created, the Board has required that non-licensed personnel who are doing work for licensed plumbers must be continually supervised on the job site by licensed plumbers. The rule is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. sec.367.3. Requirement for Plumbing Companies. A company offering to do plumbing work must secure the services of at least one person holding a current master plumber's license. The master plumber shall not allow any person, firm, company, or corporation to use his or her master plumber's license for any purpose unless the master plumber is a bona fide employee of the person, firm, company, or corporation or is the owner of or has a substantial financial interest in the firm, company, or corporation that will use the master plumber's license. The master plumber's license shall be used only by such a person, company, firm, or corporation. The master plumber shall be knowledgeable of and responsible for all permits, contracts, and agreements to perform plumbing work secured and plumbing work performed under his or her master plumber's license. All work performed under the master plumber's license shall be within the sight of and under the direct control and on-the-job supervision of a licensed plumber that is a bona fide employee of the person, or bona fide employee, owner of or has a substantial financial interest in the firm, company, or corporation using the master plumber's license. 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 May 9, 1994. TRD-9440788 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: June 2, 1994 Proposal publication date: April 1, 1994 For further information, please call: (512) 458-2145 TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 401. System Administration Subchapter B. Interagency Agreements 25 TAC sec.401.57 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.401.57 without changes to the proposed text as published in the Texas Register on January 7, 1994 (19 TexReg 144-150). The memorandum of understanding (MOU) that is adopted by reference as Exhibit N is adopted with changes. The MOU outlines training requirements for identifying and reporting abuse, neglect, and unprofessional or unethical conduct in health care facilities. Senate Bill 210 (73rd Texas Legislature) requires TXMHMR, the Texas Commission on Alcohol and Drug Abuse (TCADA), and the Texas Department of Health (TDH) to adopt the memorandum by rule. Section I of the MOU is revised to use the term "health care facility" to refer to the entities to which the MOU applies. New Section II of the MOU incorporates definitions for the terms used throughout the document. Section III (formerly Section II) is revised to delete terms specific to types of training that may be utilized (e.g., instruction, information, etc.). The section is further revised to clarify that in addition to the minimum requirements for information included in the training program, additional training concerning patient care and the prevention of abuse or neglect or illegal, unprofessional, and unethical conduct may be used to fulfill the eight-hour requirement. The section is also revised to clarify that although full-time employees are subject to the eight-hour requirement, administrators may vary the amount and type of training required for part-time employees, provided that the minimum information requirements of the training program are met. The requirement that facilities maintain training records for ten years is reduced to five years in Section IV of the MOU (formerly Section III). The section is also revised to delete the provision that training curriculum be included with each individual training record. The provision is replaced by a requirement that a copy of the curriculum be maintained by the facility. Language is also added concerning training on the Code of Ethics for various disciplines. Written comment on the proposal was received from eight organizations, including: Texas Mental Health Association, Austin; Advocacy, Inc., Austin; Shoal Creek Hospital, Austin; Woods Psychiatric Institute, Abilene; Tri-County Mental Health and Mental Retardation Services, Conroe; CPC Oak Bend Hospital, Fort Worth; Timberlawn Mental Health System, Dallas; and Bexar County Hospital District, San Antonio. All commenters offered recommendations for changes. A commenter noted that when considered in terms of all psychiatric inpatient settings, the inservice requirement creates a tremendous health care cost. The commenter requested that the department utilize the minimum standards of training to get maximum results. The department responds that changes made in response to comment received concerning the proposed training requirements have enhanced efforts to attain the goal of maximum results. A commenter recommended that the training address what is required if incidents do occur, including reporting and investigating requirements. The department responds that the minimum requirements for the training program include training on requirements and procedures for reporting such incidents. A commenter recommended that the training emphasis needed to be on teaching staff how to provide a therapeutic environment, which is likely to prevent the occurrence of abuse or neglect. Another commenter noted that the eight topics specified are necessary, but seem to ignore issues leading to patient abuse or neglect. The department responds that language has been added to clarify that in addition to the eight required topics, the eight-hour requirement can be met through training in a variety of areas designed to improve patient care or prevent abuse or neglect or illegal, unprofessional, and unethical conduct. These include, but are not limited to, courses related to the prevention of aggressive behavior, crisis intervention, CEU, CNE, and CME courses, some aspects of employee orientation, and sensitivity training. A commenter asked whether the requirements of the memorandum applied to outpatient services. Another commenter recommended that the term "health care facility" be used throughout the document to reference the entities to which the MOU applies, with definitions provided for those entities. The department responds that the provisions of Senate Bill 210 apply only to the specified categories of inpatient facilities. As requested, the term "health care facilities" has been used throughout the document, with appropriate definitions added as requested. A number of commenters expressed concern about the requirement that each employee or health care professional associated with a health care facility receive eight hours of training in the required topics. Several commenters suggested that the amount was excessive. Others suggested that the amount of training required should be allowed to vary depending on the responsibilities of the employee. Most questioned the application of the training requirement to consultant or temporary health care professionals who serve at the health care facility on a limited basis (e.g., one or two days a week, courtesy consults). The department responds that as mandated by the 73rd Legislature, each full- time employee or health care professional associated with a health care facility is required to receive eight hours of training. Revisions to Section III of the MOU clarify that the requirement may be met utilizing a variety of types of training, and also clarify that the training may include a variety of topics in addition to the eight specified in the MOU. Realistically, the eight hour figure shouldn't be difficult to achieve since so many topics can be used to meet it. In response to concerns regarding the need for such extensive training for certain part-time employees, such as pool employees, consultants, and physicians providing courtesy consults, the agencies developing the MOU offer language allowing administrators to reduce the amount of time spent in training for part- time employees. The MOU includes criteria administrators should consider in determining whether or not eight hours of training is necessary. The MOU also specifies that regardless of the amount of training provided, the required topics must be addressed in any training program. The department notes, however, that all full- time employees are required to receive eight hours of training. Several commenters questioned the need for eight hours of training on an annual basis, noting that refresher training could be accomplished just as effectively in six, four, or two hours. The department responds that although refresher training in the eight required topics may be accomplished in fewer than eight hours, additional training in topics designed to improve patient care or prevent abuse or neglect or illegal, unprofessional, or unethical conduct should be used to complete the eight hours. The intention is that employees continue to learn about topics that will help prevent incidents from occurring. Concerning the subject of sexual exploitation, a commenter noted that standards are needed that require health care professionals to learn about boundaries. The department agrees, and recommends that health care facilities developing curricula for their training programs consider including this as part of the program. A commenter asked whether the portion of training on the prevention and management of aggressive behavior (PMAB) concerning patients rights/patient abuse could be utilized to meet some of the training requirements. The department responds that language has been revised in Section III of the MOU to clarify that this type of training may be utilized to meet the training requirement. A commenter noted that part of training should focus on how to prevent abuse and neglect, including training on how to interact in a therapeutic manner. The commenter also recommended that the training focus on identifying systemic problems and situations in which the staffing ratio, program or work environment is not therapeutic and therefore contributes to the occurrence of abuse, neglect, and unethical conduct. The department agrees and has included language in Section III of the MOU concerning training for employees in the prevention of abuse or neglect. The department encourages health care facilities to include training concerning a variety of topics, including, but not limited to, systemic issues and sensitivity training. Another commenter recommended including sensitivity training and awareness of the importance of reporting abuse and neglect in the training program. The commenter also suggested including training in the importance of preventive measures. Again, the department agrees, and has included language in Section III of the MOU concerning training for employees in the prevention of abuse or neglect. Concerning reporting requirements, a commenter noted that training should be provided through an interactive process. The commenter suggested that there should be measurable outcomes which are more substantive than a signature on an attendance sheet. The commenter noted that the accountability should not come through a signed document but through the demonstration of behaviors and concepts that indicate the message of the training has been integrated. The department agrees. Clearly, the intent of the training requirement is to ensure that employees and associated health care professionals of health care facilities are aware of issues related to abuse and neglect and illegal, unprofessional, and unethical conduct, and act and react in a way that avoids such incidents. The signed document is merely a concrete means of determining whether the training was provided. Several commenters noted that the requirement that training records be maintained for ten years seemed a bit excessive. The department agrees, and has reduced the length of time to five years. These sections are adopted under the Texas Health and Safety Code, sec.532. 015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. sec.401.57. Training Requirements for Identifying Abuse, Neglect, and Unprofessional or Unethical Conduct in Health Care Facilities. (a) TDMHMR adopts by reference as Exhibit N a joint memorandum of understanding (MOU) with TDH and TCADA concerning training requirements for identifying abuse, neglect, and unprofessional or unethical conduct in health care facilities. (b) Copies of the MOU are filed in the Office of Policy Development, TDMHMR, 909 West 45th Street, Austin, Texas 78756, and may be reviewed during regular business hours. 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 May 13, 1994. TRD-9440874 Ann K. Utley Chairman Texas Mental Health and Mental Retardation Board Effective date: ? Proposal publication date: January 7, 1994 For further information, please call: (512) 206-4516 Subchapter I. Certification of Community Residential Programs -Mental Retardation 25 TAC sec.sec.401.551-401.565 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.sec.401.551-401.565, concerning certification of community residential programs-mental retardation, without changes to the proposed text as published in the March 29, 1994, issue of the Texas Register (19 TexReg 2182). The repeal of the sections is adopted contemporaneously with the adoption of the new sections which replace them, new Chapter 401, Subchapter I, also concerning certification of community residential programs -mental retardation. When originally adopted in 1988, the subchapter established a new certification process for community residential programs. As a result, a number of provisions dealt with programs which were in operation prior to the effective date of the subchapter; others included specific target dates for compliance. The new subchapter deletes those "grandfather" provisions and target dates and updates the process. No public comment was received concerning adoption of the repeals. The repeals are adopted under the Texas Health and Safety Code, sec.532.015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 13, 1994. TRD-9440876 Ann K. Utley Chairman Texas Mental Health and Mental Retardation Board Effective date: June 3, 1994 Proposal publication date: March 29, 1994 For further information, please call: (512) 206-4516 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.401.551-401.565, concerning Certification of Community Residential Programs-Mental Retardation. Sections 401.551, 401.553, 401.556, 401.558, and 401.561 are adopted with changes to the proposed text as published in the March 29, 1994, issue of the Texas Register (19 TexReg 2183). Sections 401.552, 401.554, 401.555, 401.557, 401.559, 401.560, and 401. 562-401.565 are adopted without changes and will not be republished. The new sections are adopted contemporaneously with the adoption of the repeal of the subchapter they would replace, also known as Chapter 401, Subchapter I, relating to certification of community residential programs-mental retardation. When originally adopted in 1988, the subchapter established a new certification process for community residential programs. As a result, a number of provisions dealt with programs which were in operation prior to the effective date of the subchapter; others included specific target dates for compliance. The new subchapter deletes those "grandfather" provisions and target dates and updates the process. The term "alternate certification" is replaced with "alternative certification" throughout the subchapter. Section 401.551 is revised to delete reference to supported living programs. The definition of community residential programs is revised in sec.401.553 to include reference to programs which have overnight staff on the premises and to delete reference to boarding homes. The definition of supported living is deleted. Section 401.556 is revised to clarify that the determination of whether or not a program is "qualified" is based on compliance with criteria outlined in the "Provisional Checklist" (Exhibit B). Section 401.588 is revised to clarify actions to be taken when a program which has alternative certification status irrevocably loses the alternate certification. Language addressing the need for notification no later than two working days following such a loss is added. Section 401.561(c) is revised to delete reference to a plan for re-attaining the conditions of an alternative certification. Language addressing the possibility of additional requirements imposed by the TXMHMR Assistant Deputy Commissioner is added. Section 401.561(e) is revised to clarify that the parent of a minor or legal guardian of an adult should be notified and to clarify the conditions which would require such notification. Written comments on the proposed subchapter were received from four organizations: The ARC of Texas, Austin; Parent Association for the Retarded of Texas (PART), Dallas; Mental Health and Mental Retardation Authority of Harris County, Houston; and Dallas County Mental Health and Mental Retardation, Dallas. A commenter noted that the Texas Department of Mental Health and Mental Retardation should certify or license every facility (from state schools to foster homes) in which people with mental retardation live because of the unique needs of people with mental retardation. The commenter noted that while a foster home might be a perfectly good setting for "normal" children, it might be totally incapable of meeting the unique needs of a child with mental retardation. The department responds that the legislature gives certain agencies the authority to license/certify particular facilities, and this legislative mandate precludes TXMHMR from imposing a dual certification situation. However, the MRA serves as an additional check and balance by appraising the appropriateness of the location prior to placement and monitoring the appropriateness on an ongoing basis. Concerning the definition of "community residential program," a commenter wondered whether the reference to the exclusion of boarding homes meant that they were licensed by another agency. The department responds that boarding homes (now referred to as "personal care homes") are licensed by the Texas Department of Human Services. Reference to boarding homes has been deleted from the definition for purposes of clarity. Two commenters took issue with the definition of supported living, noting that most supported living programs offer services and supports that enable the individual to live in his own home or apartment. One commenter suggested that it seems unnecessary and impractical for the state to certify an individual's home. Another commenter stated that it seemed questionable to automatically require certification in supervised apartments where consumers are generally independent and receive decreasing habilitative services and increasing support services. The department responds that the intent of including certain supported living situations in the certification process was to capture those programs which have overnight staff on the premises. It was not intended to require certification for more independent living situations. However, the addition has proved more confusing than clarifying, and the definition has been deleted. Reference to programs which have overnight staff on the premises is added to the definition of community residential programs. In addition, the purpose of the subchapter is revised to delete reference to supported living programs. Another commenter recommended a revision to the first sentence of the definition of supported living. The department appreciates the recommendation, but the definition has been deleted. A commenter suggested that the term "client" in several references in sec.401.555 be replaced with the term "consumer." The department responds in several cases, the term "client" is part of the specific title of a subchapter of the Texas Administrative Code and cannot be changed. The general principle is to eliminate use of the term "client" as the subchapters are revised. Concerning sec.401.556(1), a commenter recommended requiring submission of the initial application form no later than 30 days prior to the date on which the program will begin serving individuals. The commenter suggested the new 7 day timeline did not provide adequate time to ensure the program is in compliance. The department responds that the change was made in response to a request from the field, and is a workable timeframe. The subchapter offers 7 days before the targeted opening date as the absolute latest the application may be submitted- but programs are encouraged to submit their applications earlier if at all possible. Also concerning sec.401.556(1), a commenter requested the addition of specific timelines on the part of the TXMHMR Certification Section upon receipt of the provisional application packet. The commenter noted that without such timelines, there is the potential for unnecessary time delays or rushed corrections in order to complete the process without delaying admissions. The department responds that seven days prior to scheduled opening is the absolute latest an application should be submitted. Staff of the Certification Section will work with those who wait until the last minute to avoid delays, but encourage submission prior to that point. The same commenter wondered when the training referenced in sec.401.556(1) would be provided, and wondered who would provide it. The department responds that training is provided on an annual basis, and is provided by the local MRA. A commenter asked that the terms "suitable" and "qualified" as used in sec.401.556(2) be defined. The department responds that language referring to compliance with criteria outlined in the "Provisional Checklist" (Exhibit B) is included as clarification. The same commenter requested clarification of the term, "not substantially comply" as used in sec.401.557(2) The department responds that the phrase refers to the compliance requirements outlined in sec.401.557(1). Concerning sec.401.558(b), a commenter noted that the section could be interpreted to imply that if a community residential program with alternative certification is not certified "on-site" by the certifying agency, then the plan of improvement must be submitted to TXMHMR. The commenter noted that this didn't seem appropriate, and suggested rewording. The department responds that the language was intended to apply to irrevocable loss of the alternative certification. Language is added clarifying the intent. The same commenter suggested that four working days would be a more appropriate timeframe for the notification referred to in sec.401.558(b). The department responds that in the event of irrevocable loss of alternative certification, the situation might be potentially dangerous for the persons served. Notification should occur no later than two working days following the loss, and language has been added to clarify the need for notification sooner, if possible. A commenter asked for information concerning the frequency of on-site visits by the Certification Section during the provisional certification. The department responds that one on-site visit is generally made, although more may be merited by conditions found at the site. Concerning sec.401.559(a), a commenter wondered whether an applicant had to apply for certification renewal with a new application or simply a letter indicating intent to renew. The department responds that as outlined in sec.401. 559(b), the applicant submits a current application and the items described on the "Renewal Checklist." A commenter noted that while other timeframe requirements within the rule were reduced, the requirement in sec.401.559(a) concerning applications for renewal of certifications extended the timeframe from 45 days prior to the anniversary date to 60. The commenter questioned the justification for this change. The department responds that the additional time is required to allow sufficient time for the advance scheduling of an on-site visit and other administrative duties. The 60 day lead time has been standard procedure for the last several years; this change simply brings the rule into line with what actually happens. A commenter suggested inclusion of a clause for emergency situations in sec.401.560. The commenter cited a situation where a consumer has to be moved to or from a foster home because of extenuating circumstances. The department responds that the certification process relates to the program, not the individual. Unless the situation relates to the opening or closing of a residential program, it does not affect the certification process. A clause for emergency situations is not necessary. Regarding sec.401.561(c), a commenter noted that as written, the section seemed to require that plans of improvement generated in response to surveys done by entities providing alternative certification be submitted to and approved by TXMHMR. The commenter recommended that the section be revised to specify the intent of the rule. The department responds that the section has been revised to clarify actions to be taken. Concerning sec.401.561(e), a commenter asked whether a program which fails to obtain or maintain certification would be required to close. The department responds that the decision would be made by Mental Retardation program staff. The same commenter asked what the MRA's responsibility to parents, guardians, and consumers would be in the event a program were forced to close. The department responds that the MRA would have the responsibilities outlined in Chapter 402, Subchapter I (concerning Movement of Individuals with Mental Retardation from Department Facilities). Another commenter suggested the conditions which would require notification of the parent/guardian were not clearly defined in sec.401.561(e). The department responds that the paragraph is revised to clarify intent. The same commenter also recommended that the rule specify that parents of consumers who are legally competent adults should only be notified if the adult has given informed consent. The department responds that language has been added clarifying that only the parent of a minor or the legal guardian of an adult will receive automatic notification. These sections are adopted under the Texas Health and Safety Code, sec.532. 015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. sec.401.551. Purpose. The purpose of this subchapter is to provide the procedures by which community residential programs serving individuals with mental retardation are certified by the Texas Department of Mental Health and Mental Retardation. sec.401.553. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Alternative certification status-The certification status which is accorded community residential programs operating under auspices of a TXMHMR facility or CMHMRC which are certified, licensed, or accredited as designated in sec.401.588 of this title (relating to Alternative Certification Status). Applicant-A person or organization that completes the application and application packet for certification. Assistant deputy commissioner-The assistant deputy commissioner for mental retardation services assigned to the mental retardation authority. Certification officer -The staff person designated by the mental retardation authority to assist the department in the certification of community residential programs in the local service area. Certification section -The section within the Office of Standards and Quality Assurance, Texas Department of Mental Health and Mental Retardation, which is designated as the authority on the certification of community residential programs for individuals with mental retardation, and which reviews programs, determines compliance with certification requirements, and approves, denies, suspends, or revokes certification. Community center -A community mental health and mental retardation center as established in the Texas Health and Safety Code, sec.534. 001, et seq (formerly the Texas Mental Health and Mental Retardation Act, Texas Civil Statutes, Article 5547-203). Community residential program-Any residence in the community providing supervision and habilitation services for one to 15 individuals with mental retardation and which is funded by the Texas Department of Mental Health and Mental Retardation. The term includes programs with overnight staff on the premises. Department-The Texas Department of Mental Health and Mental Retardation. Designee-The entity or entities designated by the department to perform the monitoring and evaluation requirements of this subchapter, which may be staff of the mental retardation authority serving the local service area. Exceptions process -The process whereby the timeframe in completing the plan of improvement is extended. Extension process -The process whereby the anniversary date is extended for a period of time, up to two months. Facility-Any state school or state center providing mental retardation services under the jurisdiction of the Texas Department of Mental Health and Mental Retardation. Mental retardation authority (MRA)-The entity designated by the department to plan, facilitate, coordinate, and provide such services to individuals with mental retardation as are required to be performed at the local level by state law and by the department. Operator-The agency, organization, or individual directly responsible for the overall management of the facility. Service provider -A person who provides direct services to individuals in a residential setting. Substantial compliance -90% compliance with each standard. sec.401.556. Initial Application Process and Provisional Certification. Initial application process. All correspondence with reference to certification to operate a community residential program for individuals with mental retardation should be directed to the CMRS/Certification Section, Office of Standards and Quality Assurance, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711. (1) All applicants for new community residential programs shall make application for certification using the forms referred to in sec.401.563 of this title (relating to Exhibits) as Exhibits A and B. Application should be made at the earliest time feasible, but in no case later than seven days prior to the date on which the program begins serving individuals with mental retardation. Upon completing the requirements described on the provisional checklist, the applicant shall submit the fully completed application and provisional checklist materials to the certification officer of the MRA serving the local service area, who shall forward a copy of the materials to the Certification Section. Training for new providers regarding the certification process will be provided by the local MRA. (2) If the certification officer finds that the premises are suitable and the applicant is qualified (in keeping with requirements outlined in the "Provisional Checklist," which is referred to in sec.401.563 of this title (concerning Exhibits) as Exhibit B) to operate a community residential program in accordance with the requirements of this subchapter, the certification officer shall recommend provisional certification. A recommendation by the certification officer must include the signature endorsement of the director of quality assurance of the MRA that the program meets provisional certification requirements. The application, supplementary materials, and endorsements shall be forwarded to the Certification Section. (3) The application and supplementary materials shall be reviewed by the Certification Section. If provisional certification is granted, it shall issue to the applicant a letter granting provisional certification for a period not to exceed nine months. A copy of the letter shall be sent to the certification officer, the assistant deputy commissioner, and the MRA director of quality assurance. (4) If provisional certification is not granted, the Certification Section shall send the applicant a letter stating the reason(s) that the application has been denied. A copy of the letter shall be sent to the certification officer of the MRA, the assistant deputy commissioner, and the MRA director of quality assurance. (5) During the nine month period of provisional certification, the Certification Section shall make on-site visit(s) to the premises to determine whether full certification should be granted. sec.401.588. Alternative Certification Status. (a) Community residential programs under auspices of the TXMHMR facility or CMHMRC which are certified, licensed, or accredited by other agencies do not require additional certification by the department if the certification, licensure, or accreditation is: (1) licensure by the Department of Human Services as a foster family home for children; (2) certification by the Texas Department of Human Services as an ICF/MR program; (3) certification by the Texas Department of Mental Health and Mental Retardation as a Home and Community-Based Services 1915(c) waiver program; or (4) accreditation by the Accreditation Council on Services for People with Disabilities. (b) The community residential program provider must notify the certification officer within two working days of irrevocable loss of the certification, licensure, or accreditation on which the alternative certification status is based. Upon notification, the certification officer shall be responsible for reporting the change to the department within two working days. If the program provider desires to receive or continue receiving funds from TXMHMR, an application for certification must be made to initiate the certification process unless the MRA is directed otherwise by the assigned assistant deputy commissioner and the alternate plan is approved by the Certification Section. sec.401.561. Denial, Suspension, and Revocation of Certification. (a) The department shall have the authority to immediately deny, suspend, or revoke the certification of a community residential program if the department finds that the program: (1) violates or continues to violate applicable laws, rules, or standards; or (2) operates the program in a way that is harmful to the health, safety, care, or rights of one or more individuals. (b) When denial, suspension, or revocation of a certification occurs: (1) because a program does not substantially comply with each of the requisite standards, a plan of improvement shall be submitted for approval to the Certification Section and deficiencies corrected within 30 days of the date on the letter accompanying finalized deficiencies, unless an exception has been granted. Review by the Certification Section or designee, including on-site inspection, as appropriate, will occur in order to determine compliance with the plan of improvement; or (2) because a program does not meet at least 75% of the program standards, a plan of improvement shall be submitted for approval to the Certification Section and shall be implemented within 60 days, as described above, unless an exception has been granted. Review by the Certification Section or designee, including on- site inspection, as appropriate, will occur in order to determine compliance with the plan of improvement. (c) In the event that a program that has alternative certification loses the certification, licensure, or accreditation on which the alternative certification is based, an application for certification will be submitted unless the MRA is otherwise directed by the assistant deputy commissioner, and the alternate plan is approved by the Certification Section. (d) The denial, suspension, or revocation of a certification maintained pursuant to a contract for services may be appealed following the procedures described in Chapter 403, Subchapter O of this title (relating to Administrative Hearings of the Department in Contested Cases). (e) The MRA shall notify the parent of minors served or the legal guardian of adults served if all approved plans of improvement have failed to bring the program into compliance and, as a result, the program fails to obtain or maintain certification. 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 May 13, 1994. TRD-9440875 Ann K. Utley Chairman Texas Mental Health and Mental Retardation Board Effective date: June 3, 1994 Proposal publication date: March 29, 1994 For further information, please call: (512) 206-4516 Chapter 405. Client (Patient) Care Subchapter FF. Consent to Treatment with Psychoactive Medication 25 TAC sec.405.803, sec.405.808 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts amendments to sec.405.803 and sec.405.808, concerning Consent to Treatment with Psychoactive Medication, with changes to the proposed text as published in the December 3, 1993, issue of the Texas Register (18 TexReg 8855). The amendments clarify the process for administering psychoactive medication to patients committed to state hospitals and state centers under provisions other than those found in the Texas Mental Health Code (i.e., Code of Criminal Procedure, Family Code). The definition of "mental health facility" is revised in sec.405.803 to clarify that the subchapter does not apply to state schools but does apply to the mental health component of state centers. The term "TXMHMR facility" is redesignated as "TXMHMR mental health facility." Corresponding changes are made throughout sec.405.808. Also throughout sec.405.808, the term "objects" is replaced with the term "refuses" to reflect language utilized throughout the subchapter. The term "client" is replaced with "patient." The term "clinical director" is replaced with "chief physician." Section 405.808(b)(6) is revised to clarify that the consultant psychiatrist's examination must take place within six days of the physician's determination. Section 405.808(b)(8) is revised to clarify that psychoactive medication which is initiated during the first 14 days of an individual's commitment but which is refused by the individual or the individual's legally authorized representative after the 14-day period may continue to be administered until the appropriate review processes have been conducted. If medication is then determined not to be the most appropriate treatment, it shall be discontinued in keeping with procedures outlined in the subchapter. Section 405.808(b)(9) is added to address situations in which an individual (or an individual's legally authorized representative) who consented to administration of medication later withdraws that consent. A reference to the Code of Criminal Procedure is deleted from sec.405.808(b) (9) and replaced with the phrase, "provisions other than the Texas Mental Health Code" to reflect that these provisions may also apply to patients committed under other law, including the Family Code. Public comment was received from Michael J. Churgin, Raybourne Thompson Centennial Professor of Law, University of Texas at Austin. The commenter suggested that the proposed amendments reflected a lack of respect for the autonomy of individuals not committed under the Mental Health Code. The commenter also suggested the amendments were contrary to developments in the last decade under Texas law and the United States Constitution, and recommended they not be adopted. The department responds that Senate Bill 207 established a procedure for petitioning the court for an order to administer medication to an individual regardless of the individual's refusal. However, the procedure is available only for patients committed under the Texas Mental Health Code. Until legislation is enacted which creates a process for judicial review of the administration of medication to patients committed under other provisions, the amendments are necessary. The amendments are adopted under the Texas Health and Safety Code, sec.532. 015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. sec.405.803. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Mental health facility-All state hospitals, the mental health component of state centers, and other facilities which provide inpatient mental health services. TXMHMR mental health facilities-All state hospitals and state centers. sec.405.808. Patients Committed Under Texas Statutes. (a) Patients Committed to Mental Health Facilities Under Provisions of the Texas Mental Health Code. Psychoactive medications will not be administered to patients committed to a mental health facility under a temporary or extended order for mental health services without the informed consent of the patient except: (1)-(3) (No change.) (b) Patients Committed to TXMHMR Mental Health Facilities Under Provisions Other Than Those Found in the Texas Mental Health Code (i.e., Code of Criminal Procedures, Family Code). The decision to administer medications to a patient committed to a TXMHMR mental health facility under provisions other than those found in the Texas Mental Health Code is within the discretion of the treating physician during the first 14 days of the patient's commitment. If, following the initial 14-day period, a committed patient or the patient's legally authorized representative refuses the administration of psychoactive medication, the following review procedure will be initiated. (1) The chief physician of the facility or chief physician designee who does not work on the patient's unit will, within six calendar days of the patient's refusal or that of his or her legally authorized representative, personally examine the patient; interview the patient and the patient's legally authorized representative, if the representative is available; review the patient's records; discuss the case with the treating physician; and make a determination concerning the appropriateness of treatment with psychoactive medication. (2) Except as limited by paragraphs (6) and (7) of this subsection, psychoactive medications may be administered if the chief physician or chief physician designee determines that the administration of such medication is medically appropriate treatment. In making this determination, the chief physician or chief physician designee will consider the following factors: (A) the accuracy of the diagnosis; (B) indications for the medication; (C) probable benefits and risks of the medication; and (D) the existence and value of alternative forms of treatment, if any. (3) In addition, the chief physician or chief physician designee will make a determination as to whether the patient's ability to understand the consequences of the decision to refuse the administration of such medication is impaired as a result of the patient's mental illness. (4) If, at any time, the chief physician or chief physician designee determines that the administration of a psychoactive medication is not medically appropriate treatment, the administration of such medication will be discontinued within a reasonable period of time following that determination if the patient or his legally authorized representative continues to refuse the medication. The period of time within which the medication must be discontinued will be based on the condition of the patient and the type and dosage of medication being administered. (5) If psychoactive medication is administered pursuant to a determination under paragraph (2) of this subsection, the chief physician or chief physician designee will personally monitor the patient's progress on a monthly basis to determine whether the administration of psychoactive medication continues to be medically appropriate treatment. (6) If the chief physician or chief physician designee determines that the administration of psychoactive medication is medically appropriate treatment but also determines that the patient's ability to understand the consequences of the decision to refuse the administration of such medication has not been impaired as a result of the patient's mental illness, the head of the facility will ensure that a consultant psychiatrist not employed by the TXMHMR will, within six calendar days of the physician's determination, personally examine the patient; interview the patient and the patient's legally authorized representative, if the representative is available; review the patient's records; discuss the case with the treating physician and with the chief physician or chief physician designee; and make a determination concerning the appropriateness of treatment with psychoactive medication. The provisions of this section will also apply to those situations in which the decision to refuse the medication was made by the committed patient's legally authorized representative. (7) If the consultant psychiatrist determines that treatment with psychoactive medication is medically appropriate treatment, such medication may be administered, and the chief physician or chief physician designee will monitor the patient's progress as described in paragraph (5) of this section. (8) After the first 14 days of a commitment under provisions other than those found in the Texas Mental Health Code, psychoactive medication shall not be initiated without consent of the individual or the individual's legally authorized representative until the appropriate review procedures set out in this section have been completed and documented. If psychoactive medication was initiated during the first 14 days, and the individual or the individual's legally authorized representative refuses the medication after the first 14 days, the medication may be continued until the review process set out in paragraphs (1)-(6) of this subsection has been conducted. (9) If psychoactive medication has been administered to a patient with consent and the patient or the patient's legal guardian later refuses the medication, administration of the medication may be continued until the review process set out in paragraphs (1)-(6) of this subsection has been conducted. (10) Nothing in this section is intended to preclude the administration of psychoactive medication to any patient in an emergency situation as provided for in sec.405.812 of this title (relating to Emergencies). 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 May 13, 1994. TRD-9440877 Ann K. Utley Chairman Texas Mental Health and Mental Retardation Board Effective date: June 3, 1994 Proposal publication date: December 3, 1993 For further information, please call: (512) 206-4516 Chapter 409. Medicaid Programs Subchapter I. Rehabilitative Services for Persons with Mental Illness 25 TAC sec.409.356 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts an amendment to sec.409.356, concerning rehabilitative services for persons with mental illness, without changes to the proposed text as published in the March 22, 1994, issue of the Texas Register (19 TexReg 2048). The amendment keeps reimbursement rates for rehabilitation services consistent with amendments to the State Medicaid Plan. The rules and state plan remove the 62.5% limitation of allowable expenses on reimbursement for rehabilitation services. The proposed amendments were approved by the Medical Care Advisory Committee on March 10, 1994. A public hearing was held on April 11, 1994. No comments were received concerning adoption of the rule. The rule is adopted under the Texas Health and Safety Code, Title 7, sec.532. 015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers; and under the provisions of Texas Civil Statutes, Article 4413(502) sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 May 13, 1994. TRD-9440871 Ann K. Utley Chairman Texas Mental Health and Mental Retardation Board Effective date: June 3, 1994 Proposal publication date: March 22, 1994 For further information, please call: (512) 206-4516 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 3. Life, Accident and Health Insurance and Annuities Subchapter V. Order of Benefit Determination for Insured Dependent Children in a Coordination of Benefits Provision 28 TAC sec.3.3501, sec.3.3502 The Texas Department of Insurance adopts the repeal of sec.3.3501 and sec.3.3502, concerning an order of benefit determination for dependent children, without changes to the proposed text as published in the November 26, 1993, issue of the Texas Register (18 TexReg 8758). The repeal of these sections is necessary in order to allow for the adoption of a new Subchapter V, which will provide for uniformity of coordination of benefits determinations for group and group-type policies, contracts, certificates and forms filed in accordance with Insurance Code, Article 3.42, and establish guidelines for coordination of benefit provisions for small- employer health benefit plans in accordance with Insurance Code, Article 26.08. Provision for the order of benefit determination for insured dependent children, authorized and required by Insurance Code, Article 3.42(i), is included in the newly adopted sections. The repealed sections will remain in effect for the purpose of their applicability to policies issued prior to January 15, 1994. No comments were received regarding adoption of the repeal. The repeal of the sections is adopted under the Insurance Code, Articles 3. 42, 26.08, and l.03A, and the Government Code, sec.2001.004, et seq. Insurance Code, Article 3.42, contains filing requirements for policies, contracts, certificates and forms subject to that statute and specifically authorizes the board to adopt reasonable rules and regulations as necessary to implement and accomplish the provisions of that statute. Article 3.42(i) requires that any coordination of benefits provisions approved for use in this state must provide for the order of benefit determination for insured dependent children. The sections to be repealed contained that order of benefit determination and the new sections adopted to replace these existing sections will also contain that order of benefit determination. Article 26.08 provides that small employer health benefit plan coordination of benefit provisions must follow guidelines established by the commissioner. The repeal of these rules is necessary, in part, to allow for the adoption of those guidelines in the new sections. Article 1.03A provides the commissioner with the authorization to adopt rules and regulations for the conduct and execution of the duties and functions by the department. The Government Code, sec.2001.004 et seq. (Administrative Procedure Act) authorizes and requires each state agency to adopt rules of practice setting forth the nature and requirements of available procedures and prescribes the manner for adoption of rules by a state administrative agency. 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 May 13, 1994 TRD-9440900 D.J. Powers Legal Counsel to the Commissioner Texas Department of Insurance Effective date: June 3, 1994 Proposal publication date: November 26, 1993 For further information, please call: (512) 463-6327 Subchapter V. Group Coordination of Benefits 28 TAC sec.sec.3.3501-3.3511 The Texas Department of Insurance adopts new sec.sec.3.3501-3.3511, concerning group coordination of benefits. Sections 3.3504, 3.3507, 3.3509, 3. 3510 and 3.3511 are adopted with changes to the proposed text as published in the November 26, 1993, issue of the Texas Register (18 TexReg 8759). Sections 3.3501-3.3503, 3.3505, 3.3506 and 3.3508 are adopted without changes, and will not be republished. The new sections are necessary to provide for uniformity of coordination of benefits determinations for group and group-type policies, contracts, certificates and forms filed under Insurance Code, Article 3.42, and establish guidelines for coordination of benefit provisions for small-employer health benefit plans in accordance with Insurance Code, Article 26.08. Provision for the order of benefit determination for insured dependent children, authorized and required by Insurance Code, Article 3.42(i), is included in these new sections. Section 3.3504(a) has been changed by adding quotation marks to the term "allowable expense" to maintain consistentcy throughout the subchapter. The second sentence of sec.3.3507(a) has been changed to correct an inadvertent error by changing "(a)" to "(b)." The first sentence of sec.3.3509(a) has been changed to correct an inadvertent error to read "a plan" instead of "this plan." Section 3.3509(b) has been changed to correct an inadvertent error by changing "this COB provision" to "a COB provision" and "this COB provision" to "the COB provision." Section 3.3509(b) (1) has been changed to clarify the subsection by changing "this plan" to "a secondary plan" in the first sentence and "this plan" to "the plan" in the second sentence. Section 3.3509(b)(2) has been changed by deleting the words "may be omitted" to "does not apply" to clarify the intended meaning of the subsection. The second sentence of sec.3.3510(b)(1) has been changed to correct an inadvertent error by changing "subsection" to "subchapter." Section 3.3511(a) has been changed by changing the applicability date of the subchapter to June 15, 1994. The sections will function to establish an order in which plans pay their claims; provide the authority for the orderly transfer of information needed to pay claims promptly; reduce duplication of benefits by permitting a reduction of the benefits paid by a plan when the plan, pursuant to rules established by these sections, does not have to pay its benefits first; reduce claims payment delays; and make all contracts that contain a coordination of benefits provision consistent with these rules. A commenter stated that school accident-only plans, which are normally "At school" or "24-hour" coverage plans, should be applicable to coordination of benefits. The commenter expressed that it is bad public policy for insureds to be able to profit from their childrens' accidents and, that if it is not possible to make such benefits applicable, then at least school insurance should be made secondary. The department does not agree that school accident-only plans should be applicable to coordination of benefits and does not believe that, in the absence of coordination of benefits, insureds would be able to profit from their childrens' accidents. School accident-only type coverages do not provide major medical type coverage or comprehensive health benefits; most commonly pay benefits only for injuries resulting from accidents which occur at school- sponsored functions; typically pay benefits which are "excess" or "always secondary" to any and all other plans; and currently provide a low-cost option for schools and families. Therefore, coordination of benefits for school accident-only type coverages is unnecessary. Golden Rule Life Insurance Company made comments neither in favor of or opposed to the adoption of the rules.. The new sections are adopted under the Insurance Code, Articles 3.42, 26.08, and 1.03A. The Insurance Code, Article 3.42 contains filing requirements for policies, contracts, certificates and forms subject to that statute and specifically authorizes the board to adopt reasonable rules and regulations as necessary to implement and accomplish the provisions of that statute. Article 3.42(i) requires that any coordination of benefits provisions approved for use in this state must provide for the order of benefit determination for insured dependent children. These adopted sections include the required order of benefit determination for insured dependent children. Article 26.08 provides that small- employer health benefit plan coordination of benefit provisions must follow guidelines established by the commissioner. The Insurance Code, Article 1.03A provides the commissioner with the authorization to adopt rules and regulations for the conduct and execution of the duties and functions by the department. sec.3.3504. Allowable Expenses. (a) If an insurer chooses to include a coordination of benefits (COB) provision, "allowable expense" shall have the definition given in sec.3.3503 of this title (relating to Definitions). (b) Notwithstanding the definition of "allowable expense," items of expense under coverages such as dental care, vision care, prescription drug or hearing- aid programs may be excluded from the definition of "allowable expense." A plan which provides benefits only for any such items of expense may limit its definition of "allowable expenses" to like items of expense. (c) When a plan provides benefits in the form of service, the reasonable cash value of each service will be considered as both an "allowable expense" and a benefit paid. (d) The difference between the cost of a private hospital room and the cost of a semi-private hospital room is not considered an "allowable expense" under this section unless the covered person's stay in a private hospital room is medically necessary in terms of generally accepted medical practice. (e) When COB is restricted in its use to specific coverage in a contract (for example, major medical or dental), the definition of "allowable expense" must include the corresponding expenses or services to which COB applies. (f) When benefits are reduced under a primary plan because a covered person does not comply with the plan provisions, the amount of such reduction will not be considered an "allowable expense." Examples of such provisions are those related to second surgical opinions or precertification of admissions or services. (1) Only benefit reductions based upon provisions similar in purpose to those described in this subsection and which are contained in the primary plan may be excluded from "allowable expenses." (2) This provision shall not be used by a secondary plan to refuse to pay benefits because an HMO member has elected to have health care services provided by a non-HMO provider and the HMO, pursuant to its contract, is not obligated to pay for providing those services. (3) This section does not allow a secondary plan to exclude expenses that are applied towards the satisfaction of the deductible, copayments or coinsurance amounts required by the primary plan, except for the benefit reductions expressly described in this section. sec.3.3507. Prototype COB Contract Provisions and Prohibited Provisions. (a) Form COB TX incorporated by reference in these rules contains a prototype form of coordination of benefits provision for use in group or group-type contracts. The use of this prototype and its provisions is subject to the provisions of subsections (b)-(d) of this section and the provisions of sec.3.3508 of this title (relating to Rules for Coordination of Benefits and the Order of Benefits). (b) A group or group-type contract's COB provision does not have to use the words and format shown in the prototype Form No. COB TX. Changes may be made to fit the language and style of the rest of the group or group-type contract or to reflect the difference among plans which provide services, which pay benefits for expenses incurred, and which indemnify. No other substantive changes are allowed. (c) A group or group-type contract may not reduce benefits on the basis that: (1) another plan exists; (2) a person is or could have been covered under another plan; or (3) a person has elected an option under another plan providing a lower level of benefits than another option which could have been elected. (d) No contract may contain a provision that its benefits are "excess" or "always secondary" to any plan as defined in this regulation, except in accord with the rules permitted by this regulation. sec.3.3509. Procedure to be Followed by Secondary Plan. (a) When it is determined, pursuant to sec.3.3508 of this title (relating to Rules for Coordination of Benefits and Order of Benefits), that a plan is a secondary plan, it may reduce its benefits so that the total benefits paid or provided by all plans during a claim determination period are not more than total allowable expenses. The amount by which the secondary plan's benefits have been reduced shall be used by the secondary plan to pay allowable expenses, not otherwise paid, which were incurred during the claim determination period by the person for whom the claim is made. As each claim is submitted, the secondary plan determines its obligation to pay for allowable expenses based on all claims which were submitted up to that point in time during the claim determination period. (b) The benefits of the secondary plan will be reduced when the sum of the benefits that would be payable for the allowable expenses under the secondary plan in the absence of a COB provision and the benefits that would be payable for the allowable expenses under the other plans, in the absence of provisions with a purpose like that of the COB provision, whether or not claim is made, exceeds those allowable expenses in a claim determination period. In that case, the benefits of the secondary plan will be reduced so that they and the benefits payable under the other plans do not total more than those allowable expenses. (1) When the benefits of a secondary plan are reduced as described in this subsection, each benefit is reduced in proportion. It is then charged against any applicable benefit limit of the plan. (2) Paragraph (1) of this subsection does not apply if the plan provides only one benefit, or may be altered to suit the coverage provided. sec.3.3510. Miscellaneous Provisions. (a) A secondary plan which provides benefits in the form of services may recover the reasonable cash value of providing the services from the primary plan, to the extent that benefits for the services are covered by the primary plan and have not already been paid or provided by the primary plan. Nothing in this provision shall be interpreted to require a plan to reimburse a covered person in cash for the value of services provided by a plan which provides benefits in the form of services. (b) This subsection concerns excess and other nonconforming provisions. (1) Some plans have order of benefit determination rules not consistent with this subchapter which declare that the plan's coverage is "excess" to all others, or "always secondary." This occurs because certain plans may not be subject to insurance regulation, or because some group or group-type contracts have not yet been conformed with this subchapter. (2) A plan with order of benefit determination rules which comply with this subchapter (complying plan) may coordinate its benefits with a plan which is "excess" or "always secondary" or which uses order of benefit determination rules which are inconsistent with those contained in this regulation (noncomplying plan) on the following basis: (A) If the complying plan is the primary plan, it shall pay or provide its benefits on a primary basis; (B) If the complying plan is the secondary plan, it shall, nevertheless, pay or provide its benefits first, but the amount of the benefits payable shall be determined as if the complying plan were the secondary plan. In such a situation, such payment shall be the limit of the complying plan's liability; and (C) If the noncomplying plan does not provide the information needed by the complying plan to determine its benefits within a reasonable time after it is requested to do so, the complying plan shall assume that the benefits of the noncomplying plan are identical to its own, and shall pay its benefits accordingly. However, the complying plan must adjust any payments it makes based on such assumption whenever information becomes available as to the actual benefits of the noncomplying plan. (3) If the noncomplying plan reduces its benefits so that the employee, subscriber, or member receives less in benefits than he or she would have received had the coordination of benefits occurred in compliance with the provisions of this subchapter, then the complying plan shall advance to or on behalf of the employee, subscriber or member an amount equal to such difference. However, in no event shall the complying plan advance more than the complying plan would have paid had it been the primary plan less any amount it previously paid. In consideration of such advance, the complying plan shall be subrogated to all rights of the employee, subscriber or member against the noncomplying plan, in accordance with applicable subrogation provisions. Such advance by the complying plan shall also be without prejudice to any claim it may have against the noncomplying plan in the absence of such subrogation. (c) With respect to allowable expenses, a term such as "usual and customary," "usual and prevailing," or "reasonable and customary, " may be substituted for the term "necessary, reasonable and customary." Terms such as "medical care" or "dental care" may be substituted for "health care" to describe the coverages to which the COB provisions apply. (d) The COB concept clearly differs from that of subrogation. Provisions for one may be included in health care benefits contracts without compelling the inclusion or exclusion of the other. sec.3.3511. Effective Date; Compliance by Existing Contracts. (a) This subchapter is applicable to every group or group-type contract which provides health care benefits and which is issued on or after June 15, 1994. (b) A group or group-type contract which provides health care benefits and was issued before the effective date of this subchapter shall be brought into compliance with this subchapter on the next anniversary date or renewal date of the group contract, or the expiration of any applicable collective bargaining contract pursuant to which it was written. (c) A group contract that was delivered, issued for delivery, or renewed before the effective date of this subchapter is governed by the law including the prior regulations which were found at sec.3.3501 and sec.3.3502 of this title (relating to the Order of Benefit Determination for Insured Dependent Children in a Coordination of Benefits Provision) in effect immediately before the effective date of this subchapter, and that law is continued in effect for this purpose. 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 May 13, 1994 TRD-9440899 D.J. Powers Legal Counsel to the Commissioner Texas Department of Insurance Effective date: June 3, 1994 Proposal publication date: November 26, 1993 For further information, please call: (512) 463-6327 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 325. Certificate of Competency 30 TAC sec.sec.325.2, 325.3, 325.5, 325.6, 325.11, 325.15 The Texas Natural Resource Conservation Commission (Commission) adopts amendments to sec.sec.325.2, 325.3, 325.5, 325.6, 325.11, and 325.15. Section 325.5 and sec.325.11 with changes to the proposed text as published in the January 7, 1994, issue of the Texas Register (19 TexReg 162). Sections 325.2, 325.3, 325.6, and 325.15 are adopted without changes and will not be republished. The amendments concern the evaluation of work experience towards wastewater operator certification, the payment of an application fee instead of an issuance fee for certification, options for enforcement actions taken by the executive director and commission, and the payment of an application fee for perpetual certification. The amendments are adopted in order to implement certain provisions of sec.26.0301 the Texas Water Code, sec.26.0301, which went into effect September 1, 1987. The amendments are adopted in order to delineate eligibility requirements and procedures for those applying for wastewater operator certificates of competency. Five different groups and individuals submitted comments on the proposed rules. These commenters reflected Water Utilities Associations. Most of the comments were favorable to the proposed amendments. All suggested changes to the proposed amendments have been considered and have been incorporated into the rules where appropriate. There were two categories of comment: those who felt that the proposed amendments did not properly address the importance of personnel involved in the area of wastewater collection; and those who would like sec.325.11(e) clarified. Additionally, staff commented on the effective date of sec.325.5(c). Commenters included: The Armadillo Country Water Utility Association, The Southwest Texas Regional Short School of the Texas Water Utilities Association, The Hot Wells District of the Texas Water Utilities Association, Water and Wastewater Treatment, and The Texas Water Utilities Association. Three commenters expressed concern that the commission did not indicate in sec.325.2 the importance of wastewater collection operators by neither creating a third level of collection system operator certification nor establishing a wastewater collection system operator certification program parallel to the water distribution certification. The commission agrees that these statements have merit; however, it is not yet prepared to create this level of certification for wastewater collection system operators. Commission staff expressed concern that sec.325.5(c) should have an effective date of September 1, 1994. The commission agrees, and adopts September 1, 1994 as the effective date. Two commenters expressed concern that sec.325.11(e) was too vague and needed very specific language. The commission agrees that more specific language is needed and adopts the proposed changes of the commenters. The amended sections are adopted under the Texas Water Code, sec.5.103 and sec.5.105, which provide authorization for the Commission to adopt any rules necessary to carry out its powers and duties and to establish policies of the Commission. sec.325.5. Applications and Fees. (a) Applications for certificates of competency for wastewater treatment plant and collection system operators shall be made to the executive director, who is authorized by the commission to issue the certificates of competency for the commission. Applications shall be completed in full, and the applicant shall be mailed notification of any deficiencies by the executive director. All deficiencies shall be corrected within 60 days of notification, or the examination will be considered invalid and must be repeated. (b) (No change.) (c) Effective September 1, 1994, applications for new, renewed, or upgraded certificates shall be accompanied by a fee in the form of a personal check, cashier's check, or money order. Cash cannot be accepted for payment of fees. All fees shall be made payable to the Texas Natural Resource Conservation Commission and are nonrefundable. (d) Fees are $20 annually, and the fee for the entire term of the certificate must be paid prior to issuance. A two-year certificate requires a fee of $40, a three-year certificate requires a fee of $60, a five-year certificate requires a fee of $100, and an eight-year certificate requires a fee of $160. (e) Applications for new and upgraded certificates are valid for a period of one year from their date of receipt at the commission. After an initial failure, examinations may be repeated two times without payment of another fee. Another application and fee must be submitted after a third failure or after one year of submission of the application, whichever occurs first. sec.325.11. Sanctions. (a) If the executive director believes that good cause exists to bring enforcement action against an operator or wastewater treatment facility operations company, he may initiate any of the following corrective measures. (1) Reprimand-If after a thorough investigation of the circumstances surrounding the violations, the executive director finds that the operator or wastewater treatment facility operations company was responsible for contributing to the severity of the violations but that formal suspension or revocation proceedings are not warranted, he may reprimand the operator or company in writing by certified mail. The operator or company has an opportunity to consult with the executive director and his staff and present evidence which might refute the allegations. (2) Probation-Alternatively, the executive director may place the operator or company on probation for a period of time not longer than one year, if after investigation, he finds that the operator or company committed an offense that does not warrant suspension or revocation of the certificate but was more serious in nature than an offense deserving of a reprimand. Such probationary status shall serve as a warning to the operator or company and any further violations or offenses shall warrant suspension or revocation proceedings. Notification and rebuttal procedures shall be the same as for suspension or revocation, but the commission shall not be required to hold a formal hearing. (3) The commission may suspend or revoke the certificate of competency if the commission finds that the holder of the certificate was responsible for causing, allowing or permitting a substantial violation of any disposal permit for a wastewater treatment facility, or for falsifying reports or laboratory test results, or for falsifying any information in documents submitted under this chapter, or for other good cause. (b) (No change.) (c) A certificate of competency shall be suspended for a period of one year; however, depending upon the seriousness of the offense(s), the time of suspension may be decreased or increased. Suspension means that the certificate is no longer valid and that the operator is no longer authorized to operate any treatment or collection facilities until the period of suspension is complete. No re-testing is required. A certificate is revoked automatically upon a second suspension. At the request of the certificate holder, or for good cause shown, the certificate may be suspended indefinitely by the commission. (d) The holder of a certificate of competency which has been revoked may reapply for a certificate of competency pursuant to this chapter as if applying for the first time, after a period of at least one year from the date of revocation. If a certificate is revoked a second time, the revocation will be permanent. Re-testing is required in order to become re- certified after revocation. (e) Operators are responsible for performing adequate process control of wastewater treatment facilities as described in commission approved operator training manuals and according to commission guidance documents. Operator performance that results in permit violations may subject the operator to administrative penalties or other sanctions as described in this section. 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 May 13, 1994. TRD-9440910 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 6, 1994 Proposal publication date: January 7, 1994 For further information, please call: (512) 463-8069 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part II. Texas Parks and Wildlife Department Chapter 65. Wildlife Subchapter H. Public Hunting Lands Hunting and Fishing Proclamation 31 TAC sec.sec.65.190-65.194, 65.198 The Texas Parks and Wildlife Commission, in a regularly scheduled public hearing on March 24, 1994, adopted sec.sec.65.190-65.194 and sec.65.198 concerning Public Hunting Lands Hunting. Section 65.193 was adopted with changes to the proposed text as published in the February 18, 1994, issue of the Texas Register (19 TexReg 1195). Sections 65.190-65.192, 65.194, and 65.198 were adopted without changes and will not be republished. The changes to sec.65.193 were as follows: Section 65.193(s)(1)(B)(ii) was changed to establish a general season for taking exotic mammals on the Alazan Bayou Wildlife Management area; sec.65. 193(s)(1)(L)(ii) specifies that muzzleloading firearms are the only type of firearm which may be possessed when hunting during the general season for exotic mammals on the Alazan Bayou Wildlife Management Area; sec.65.193(s)(27) (A)(i) was changed to alter the method of conducting archery deer hunts from an annual public hunting permit to specially drawn permits; and sec.65.193(s) (34)(A) was changed to withdraw a proposal to establish a season for alligators on the Sheldon Wildlife Management Area. The amendments were necessary to add new areas, add new definitions and revise existing definitions, enhance public-use provisions, provide for more effective enforcement of regulations, and better assure the proper management of wildlife resources. The rules provide harvest of wildlife resources consistent with recognized wildlife management areas. Public hearings regarding proposed changes in the Public Hunting Lands Proclamation were held in 68 counties. In addition, the agency received telephone calls and letters concerning these proposals. A total of 217 respondents commented regarding the proposed reinstatement of trapping activities. All of those commenting were in favor of reinstatement; however, 95% were opposed to the accompanying restrictions on trapping. A total of 52 persons commented on the proposed change in requirements for the wearing of hunter orange, with 87% expressing opposition. Those opposed were primarily archery deer hunters who would be required to wear hunter orange during October in areas where firearm hunts for squirrel were concurrently being conducted. A total of 30 people commented on the provision to allow existing duck blinds on Caddo Lake State Park and Wildlife Management Area to continue to be repaired and maintained. Most of the comments expressed a desire to maintain preferential rights to the use of permanent blinds. The agency disagrees with the comments and no changes were made as a result of the comments. The Texas Trappers and Fur Hunters and National Audubon Society spoke in opposition to adoption of the proposed rules. No groups or associations commented in favor of adoption of the rules. The amendments are adopted under the Parks and Wildlife Code, Chapter 81, Subchapter E, which provides the Parks and Wildlife Commission with authority to regulate seasons, numbers, means, methods, and conditions for taking wildlife resources on wildlife management areas; with respect to designated state parks, the Commission is acting under the authority of the Parks and Wildlife Code, Chapter 12, Subchapter A, which provides that a tract of land purchased primarily for a purpose authorized by the code may be used for any authorized function of the Department if the Commission determines that multiple use is the best utilization of the land's resources, and Chapter 62, Subchapter D, which provides authority, as sound biological management practices warrant, to prescribe seasons, number, size, kind, and sex and the means and method of taking any wildlife. sec.65.193. Open Seasons, Bag and Possession Limits, and Means and Methods; General Rules. (a) It is unlawful to take wildlife resources at any time other than during the open seasons provided in this subchapter, by means or methods not prescribed in these rules, or to take more than the daily bag limits, or to have in possession more than the possession limits, as provided in this subchapter. (b) Open seasons are given by their opening and closing dates, both days inclusive, and include all days between the opening and closing dates unless otherwise specified. (c) Specific days, times, and compartments for taking wildlife resources within the open seasons, as provided, will be established by the Executive Director in the interest of sound conservation practices. (d) It is an offense to remove a wildlife resource, or any portion thereof, from public hunting lands, except during the specific days and time period provided for taking the specified wildlife resource. A wounded or lost animal must be recovered and taken into possession during the authorized hunt period in order for any portion thereof to be claimed by the hunter. (e) Except for hunting predators and furbearers and fishing, it is an offense to hunt wildlife resources during the hours between one-half hour after sunset and one-half hour before sunrise. (f) The Executive Director may close to public use an area or a portion of an area to protect sensitive sites, or may restrict bag limits, cancel hunts or close the season on specific species in certain areas to avoid depletion of wildlife resources. (g) The Executive Director may adjust hunt dates and bag limits within the framework established by the Commission to promote the proper management of wildlife resources. (h) The Executive Director may designate units of public hunting lands acquired under short-term lease agreement, for application of Commission approved regulations governing hunting, fishing, and other public use. (i) The Executive Director may designate an area or a portion of an area as a limited-use zone in which hunting and the use of firearms and archery equipment is either prohibited, restricted to specified means and methods, or limited to certain periods of time. (j) The Executive Director may establish additional restrictions on camping consistent with the type of public use activity authorized and the environmental protection of the area. (k) The Executive Director may permit recreational activities on public hunting lands which are compatible with sound resource management practices and public health and safety. (l) Open seasons, shooting hours, means and methods, and bag and possession limits for taking deer, javelina, pronghorn antelope, desert bighorn sheep, squirrel, turkey, pheasant, and quail and fishing when listed as a legal species or activity are as provided for that county by the Statewide Hunting and Fishing Proclamation, except as otherwise specified for a specific area. (m) Open season, shooting hours, and means and methods for taking exotic mammals when listed as a legal species are as provided for taking deer within that county by the Statewide Hunting and Fishing Proclamation, except as otherwise specified for a specific area. Exotic mammals of either sex may be taken and there is no bag or possession limit, except as otherwise established for designated exotic mammals. (n) Open seasons, shooting hours, means, methods, special requirements, and bag and possession limits for taking mourning dove, white-winged dove, rail, gallinule, and teal duck during the Early Teal Season when listed as a legal species are as provided for that locale by the Early Season Migratory Game Bird Proclamation, except as further restricted for a specific area. (o) Open seasons, shooting hours, means, methods, special requirements, and bag and possession limits for taking waterfowl (outside of the Early Teal Season), sandhill crane, woodcock, and snipe when listed as a legal species are as provided for that locale by the Late Season Migratory Game Bird Proclamation, except as further restricted for a specific area. (p) Open seasons, means and methods, and bag and possession limits for taking furbearing animals when listed as a legal species are as provided by the Statewide Furbearing Animal and Trapping Proclamation, except as otherwise specified for a specific area. (q) Open seasons, shooting hours, and means and methods for taking predatory animals when listed as additional legal species on special or regular hunting permits correspond to the open season, shooting hours, and means and methods provided for taking the featured hunt species. Predatory animal of either sex may be taken and there is no bag or possession limit. (r) Open seasons, general rules, license requirements, means and methods, hide tag requirements, and bag limits for taking alligator when listed as a legal species are as provided by the Alligator Proclamation, except as further restricted for a specific area. (s) Open Seasons, Bag and Possession Limits, Means and Methods, and Special Regulations for Legal Species and Legal Activities on Specific Areas. (1) Alazan Bayou Wildlife Management Area. (A) Deer: Archery-during the periods of October 1-October 31 and from the first Saturday in November through the first Sunday in January; one deer (either sex during October and the first full weekend in November and buck-only thereafter) ; by annual public hunting permit. (B) Exotic mammal: (i) Archery-during the period from October 1-January 15; no bag or possession limit; by annual public hunting permit. (ii) General-during the period from January 16-March 15; no bag or possession limit; by annual public hunting permit. (C) Squirrel-by annual public hunting permit. (D) Quail-by annual public hunting permit. (E) Mourning doves-by annual public hunting permit. (F) Waterfowl-shooting hours end at noon; by annual public hunting permit. (G) Woodcock-by annual public hunting permit. (H) Gallinules-by annual public hunting permit. (I) Snipe-by annual public hunting permit. (J) Rabbits and Hares-to correspond with dates and shooting hours and means and methods designated for game animal, game bird or exotic mammal hunts; no bag or possession limits; by annual public hunting permit. (K) Fishing-during the period from March 1-August 31; by annual public hunting permit. (L) Special regulations: (i) It is an offense to possess a rifle or handgun of greater size than .22- caliber rimfire while hunting during the season designated for squirrel. (ii) It is an offense to possess a firearm other than a muzzleloading firearm while hunting during the general season designated for exotic mammals. (2) Aquilla Wildlife Management Area. (A) Deer: Archery-to correspond with hunt dates established by the Statewide Hunting and Fishing Proclamation for taking deer in Hill County during the archery-only season and the general season; one deer (buck-only); by annual public hunting permit. (B) Exotic mammal: Concurrent seasons-to correspond with hunt dates, shooting hours, and means and methods designated for taking deer; no bag or possession limit; by annual public hunting permit. (C) Squirrel-by annual public hunting permit. (D) Turkey-during the spring season established by the Statewide Hunting and Fishing Proclamation for taking turkey in Hill County; one turkey (gobbler only); by annual public hunting permit. (E) Quail-by annual public hunting permit. (F) Mourning dove-by annual public hunting permit. (G) Sandhill crane-by annual public hunting permit. (H) Waterfowl-season closed within that portion of the area designated by signs as a waterfowl sanctuary; by annual public hunting permit. (I) Snipe-by annual public hunting permit. (J) Rabbits and hares-no bag or possession limits; by annual public hunting permit. (K) Fishing-no permit required. (L) Special regulations-It is an offense to use any device other than shotguns with non-toxic shot or no larger than #4 lead shot or bow and arrow for hunting (Non-toxic shot requirements for hunting waterfowl remain in effect.) (3) Atkinson Island Wildlife Management Area-Special Regulations: (A) It is an offense to take wildlife resources other than fish. (B) It is an offense to park a boat on the area in any place except the nonvegetated beach zone. (C) It is an offense for a person to allow a dog, cat, or any animal to enter the area unleashed and not under the person's physical control. (4) Black Gap Wildlife Management Area. (A) Deer: (i) Archery-on designated days during the period from September 1-January 31; one deer (buck-only); by annual public hunting permit. (ii) General-during the period from October 1-February 15; one deer as specified on the permit; by special permit. (B) Javelina: (i) Archery: Concurrent seasons-to correspond with dates and shooting hours designated for archery-only deer hunts; one javelina (either-sex); by annual public hunting permit. (ii) General-during the period from September 1-March 31; one javelina (either-sex); by special permit. (C) Quail-on designated days; by annual public hunting permit. (D) Mourning dove-on designated days; by annual public hunting permit. (E) Rabbits and hares-to correspond with hunt dates and shooting hours designated for quail and mourning dove; no bag or possession limit; by annual public hunting permit. (F) Fishing and river related public use. Impoundments are closed to fishing. Fishing in and public access to the Rio Grande River is permitted year-round, except on days when hunts are being conducted by special permit; annual public hunting permit required, except public users who enter and exit the area by boat are not required to possess an annual public hunting permit. Public users are required to use Maravillas Canyon and Horse Canyon roads only while going to and from the Rio Grande River. From the point where the Maravillas Canyon Road enters the Rio Grande Valley downstream to the area boundary, a river-related public-user who does not possess an annual public hunting permit commits an offense if the public user does not stay within the area between the road and the river or within 300 yards of the river from the aforementioned point upstream to the area boundary. (G) Special regulations-It is an offense if a public user fails to perform on- site registration at the area headquarters, except fishermen who enter and exit the area by boat are not required to perform on-site registration. (5) Caddo Lake State Park and Wildlife Management Area. (A) Seasons and bag limits for taking wildlife resources are as provided for Marion and Harrison counties. (B) Special regulations: (i) The requirement of an Annual Public Hunting Permit or a Limited Public Use Permit is waived. (ii) Existing permanent duck blinds which were in place on October 16, 1992, may be repaired and maintained; however it is a violation to construct a new permanent duck blind or to repair or maintain a permanent duck blind which was initially constructed after October 16, 1992. (iii) It is an offense to establish a temporary duck blind less than 300 yards from an existing duck blind. (iv) It is an offense to discharge a firearm within that portion of the area designated by signs as a Limited Use Zone. (6) Candy Abshier Wildlife Management Area-Special Regulations: (A) It is an offense to take wildlife resources other than fish. (B) It is an offense to park or operate motor vehicles in an area other than the designated parking area. (C) It is an offense to enter a restricted area, except as authorized in writing by the Department. (D) It is an offense for a person to allow a dog, cat, or any animal to enter the area unleashed and not under the person's physical control. (7) Cedar Creek Islands Wildlife Management Area (Big Island, Bird Island, and Telfair Island Units)-Special Regulations: (A) It is an offense to take wildlife resources other than fish. (B) It is an offense to enter a restricted zone, except as authorized in writing by the Department. (C) It is an offense to park a boat on the area in any place except the nonvegetated beach zone. (D) It is an offense for a person to allow a dog, cat, or any animal to enter the area unleashed and not under the person's physical control. (8) Chaparral Wildlife Management Area. (A) Deer: (i) Archery-during the period from September 1-January 31; one deer (either- sex); by special permit. (ii) General-during the period from October 1-February 15; one deer as specified on the permit; by special permit. (B) Exotic mammal: Concurrent seasons-to correspond with hunt dates, shooting hours, means and methods, and permit requirements for taking deer, javelina, and coyote; no bag or possession limit. (C) Javelina: (i) Archery: Concurrent seasons -to correspond with dates and shooting hours designated for archery-only deer hunts; one javelina (either-sex); by special permit. (ii) General-during the period of September 1-March 31; one javelina (either- sex); by special permit. (D) Quail-on designated days during the period from October-February; by regular permit. (E) Mourning dove-on designated days by regular permit. (F) Rabbits and hares-to correspond with hunt dates and shooting hours designated for quail and mourning dove; no bag or possession limit; by regular permit. (G) Coyote-during the period from September 1-August 31; no bag or possession limit; by regular permit. (H) Fishing-no open season. (9) Cooper Wildlife Management Area. (A) Deer: (i) Archery-on designated days, one deer (either sex during the archery-only deer season established for Delta and Hopkins counties and buck-only otherwise); by annual public hunting permit. (ii) General-during the period from October 1-February 15; one deer as specified on the permit; by special permit. (B) Exotic mammal: Concurrent seasons-to correspond with hunt dates, shooting hours, means and methods, and permit requirements designated for deer; no bag or possession limits. (C) Squirrel-on designated days; by annual public hunting permit. (D) Quail-on designated days; by annual public hunting permit. (E) Mourning dove-on designated days; by annual public hunting permit. (F) Waterfowl-on designated days during the waterfowl seasons established for Delta and Hopkins counties; shooting hours end at noon; by annual public hunting permit. (G) Woodcock-on designated days; by annual public hunting permit. (H) Snipe-on dates and shooting hours which correspond to those designated for waterfowl hunts; by annual public hunting permit. (I) Rabbits and hares-on designated days; by annual public hunting permit. (J) Fishing-no permit required. (K) Special regulations-It is an offense to use any device other than shotguns with non-toxic shot or no larger than size #4 lead shot or bow and arrow for hunting, except that lawful firearms, including shotguns using only slugs, are the only legal firearm for taking deer or exotic mammals during the general season (Non-toxic shot requirements for hunting waterfowl remain in effect). (10) Dam B Wildlife Management Area. (A) Deer: (i) Archery-one deer (either-sex); by annual public hunting permit. (ii) General-one deer (buck-only); by annual public hunting permit. (B) Exotic mammal: Concurrent seasons-to correspond with hunt dates, shooting hours, and means and methods designated for deer; no bag or possession limit; by annual public hunting permit. (C) Squirrel-by annual public hunting permit. (D) Quail-by annual public hunting permit. (E) Mourning doves-by annual public hunting permit. (F) Waterfowl-by annual public hunting permit. (G) Woodcock-by annual public hunting permit. (H) King and clapper rail-by annual public hunting permit. (I) Sora and Virginia rails-by annual public hunting permit. (J) Gallinules-by annual public hunting permit. (K) Snipe-by annual public hunting permit. (L) Rabbits and hares-no closed season; no bag or possession limits; by annual public hunting permit. (M) Furbearing Animals-during the period from September 1-March 31; by annual public hunting permit. (N) Coyotes-during the period from September 1-March 31; no bag or possession limit; by annual public hunting permit. (O) Fishing-no permit required. (P) Special regulations: (i) Camping is by permit only; permits may be obtained at the U.S. Corps of Engineers office at the reservoir site. (ii) The use of airboats is an offense. (iii) It is an offense to use any device other than shotguns with non-toxic shot or no larger than size #4 lead shot or bow and arrow for hunting, except that lawful firearms, including shotguns using only slugs, are the only legal firearms for taking deer or exotic mammals during the general season (Non-toxic shot requirements for hunting waterfowl remain in effect). (iv) Dogs may be used in hunting coyotes and furbearers. (11) Designated Units of the Las Palomas Wildlife Management Area. (A) Chachalaca-on designated days by annual public hunting permit. (B) Mourning dove-on designated days by annual public hunting permit. (C) White-winged dove-on designated days by regular permit, except on the Ocotillo Unit where an annual public hunting permit is required. (D) Fishing-no open season, except on the Ocotillo Unit where an annual public hunting permit is required. (E) Special regulations: (i) It is an offense to park other than in designated parking areas, except on the Ocotillo Unit where parking is also permitted immediately adjacent to designated roads and on the shoulder of Farm Road 170 provided that the vehicle is pulled completely off of the road so as not to block traffic or create a safety hazard. (ii) It is an offense if a person hunting on the Ocotillo Unit fails to perform on-site registration. (iii) The taking of wildlife resources on the Kiskadee Unit is an offense. (iv) It is an offense for a person to enter the Kiskadee Unit during the period from May 1-August 31 unless authorized in writing by the Department. (v) It is an offense for a person to allow a dog, cat, or other animal to enter the Kiskadee Unit unleashed and not under the person's physical control. (12) Designated Units of Public Hunting Lands under Short-Term Lease. (A) Deer: (i) Archery: (I) During the period from September 1-January 31; one deer as specified on the permit; by special permit. (II) On designated days during the period from September 1-January 31; one deer as specified by permit; by annual hunting permit. (ii) General: (I) During the period from October 1-February 15; one deer as specified on the permit; by special permit. (II) On designated days during the period from October 1-February 15; one deer as specified on the permit; by annual public hunting permit. (B) Exotic animals: (i) Archery: (I) During the period from September 1-August 31; no bag or possession limit; by special permit (II) On designated days during the period from September 1-August 31; no bag or possession limit; by annual hunting permit. (ii) General: (I) During the period from September 1-August 31; no bag or possession limit; by special permit. (II) On designated days during the period from September 1-August 31; no bag or possession limit; by annual public hunting permit. (C) Javelina: (i) Archery: (I) During the period from September 1-March 31; one javelina (either sex); by special permit. (II) On designated days during the period from September 1-March 31; one javelina (either sex); by annual public hunting permit. (ii) General: (I) During the period from September 1-March 31; one javelina (either sex); by special permit. (II) On designated days during the period from September 1-March 31; one javelina (either sex); by annual public hunting permit. (D) Squirrel: (i) On designated days by regular permit. (ii) On designated days by annual public hunting permit. (E) Turkey-during the months of April and May; one gobbler; by special permit. (F) Quail: (i) On designated days by regular permit. (ii) On designated days by annual public hunting permit. (G) Mourning dove: (i) On designated days by regular permit. (ii) On designated days by annual public hunting permit. (H) White-winged dove: (i) On designated days by regular permit. (ii) On designated days by annual public hunting permit. (I) Waterfowl: (i) On designated days by regular permit; shooting hours end at noon. (ii) On designated days by annual public hunting permit; shooting hours end at noon. (J) Sandhill crane: (i) On designated days by regular permit; shooting hours end at noon. (ii) On designated days by annual public hunting permit; shooting hours end at noon. (K) Snipe: (i) On designated days by regular permit; shooting hours end at noon. (ii) On designated days by annual public hunting permit; shooting hours end at noon. (L) Rails: (i) On designated days by regular permit; shooting hours end at noon. (ii) On designated days by annual public hunting permit; shooting hours end at noon. (M) Gallinule: (i) On designated days by regular permit; shooting hours end at noon. (ii) On designated days by annual public hunting permit; shooting hours end at noon. (N) Woodcock: (i) On designated days by regular permit. (ii) On designated days by annual public hunting permit. (O) Fishing-on designated days by annual public hunting permit; restricted to daylight hours. (P) Special regulations: (i) It is an offense if a public user fails to perform on-site registration. (ii) The use of airboats is an offense. (iii) It is an offense to use any device other than shotguns with nontoxic shot no larger than size #4 lead shot or bow and arrow for hunting, except that lawful firearms, including shotguns using only slugs, are the only legal firearms for taking deer or exotic mammals during the general season (nontoxic shot requirements for hunting waterfowl remain in effect). (iv) It is an offense to possess a rifle or handgun of greater size than .22- caliber rimfire while hunting during the season designated for squirrel. (v) The use or possession of dogs is an offense, except one dog per permit- holding hunter is permitted for hunting migratory game birds, quail, pheasant or squirrel. (vi) It is an offense to park in other than designated parking areas. (13) Designated Units of the Playa Lakes Wildlife Management Area. (A) Pheasant-on designated days; by annual public hunting permit. (B) Quail-on designated days; by annual public hunting permit. (C) Mourning dove-on designated days; by annual public hunting permit. (D) Waterfowl-on designated days during designated shooting hours; by annual public hunting permit. (E) Sandhill crane-on designated days during designated shooting hours; by annual public hunting permit. (F) Snipe-on designated days during designated shooting hours; by annual public hunting permit. (G) Rabbits and hares-on designated days; no bag or possession limits; by annual public hunting permit. (H) Fishing-on designated days; by annual public hunting permit. (14) Designated Units of the State Park System. (A) Deer: (i) Archery-during the period from September 1-January 31; one deer (either sex); by special permit. (ii) General-during the period from October 1-February 15; two deer as specified on the permit; by special permit. (B) Exotic mammals: (i) Concurrent seasons-to correspond with hunt dates, shooting hours, and means and methods designated for deer; no bag or possession limit; by special permit. (ii) General-during the period from September 1-August 31; no bag or possession limits; by special permit. (C) Designated exotic mammal-during the period from September 1-August 31; designated exotic mammals of the type and number as specified on the permit; by special permit. (D) Javelina-during the period of September 1-March 31; one javelina (either sex); by special permit. (E) Squirrel-on designated days by regular permit. (F) Turkey-during the months of April and May; one gobbler; by special permit. (G) Quail-on designated days during the period from October-February; by regular permit. (H) Mourning dove-on designated days by regular permit. (I) White-winged dove-on designated days by regular permit. (J) Waterfowl-on designated days; shooting hours end at noon; by regular permit. (K) King and clapper rails-on dates and shooting hours which correspond to those designates for waterfowl hunts; by regular permit. (L) Sora and Virginia rails-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (M) Gallinule-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (N) Snipe-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (O) Alligator-one alligator as specified on the permit; means and methods as specified on the permit or attachments; by special permit. (P) Special regulations: (i) The use of airboats is an offense, except that airboats having a motor of no greater than 10 horsepower may be used on Sea Rim State Park. (ii) The use or possession of dogs is an offense, except one dog per permit- holding hunter is permitted for hunting migratory game birds, quail or squirrel. (15) Elephant Mountain Wildlife Management Area. (A) Deer: (i) Archery-during the period from September 1-January 31; one deer (buck- only); by special permit. (ii) General-during the period from October 1-February 15; one deer as specified on the permit; by special permit. (B) Javelina: (i) Archery: Concurrent seasons -to correspond with dates and shooting hours designated for archery-only deer hunts; one javelina (either-sex); by special permit. (ii) General-during the period from September 1-March 31; one javelina (either-sex); by special permit. (C) Pronghorn antelope-during the period from September 1-October 31; one antelope as specified on the permit; by special permit. (D) Desert bighorn sheep-during the period from September 1-August 31; one desert bighorn sheep ram as specified on the permit; by special permit. (E) Quail-on designated days during the period from October-February; by annual public hunting permit. (F) Mourning dove-on designated days by annual public hunting permit. (G) Rabbits and hares-to correspond with hunt dates and shooting hours designated for quail and mourning dove; no bag or possession limit; by annual public hunting permit. (H) Fishing-no open season. (I) Special regulations: (i) The possession and use of horses, mules, burros and other types of riding stock or pack animals during public hunts for desert bighorn sheep may be permitted in accordance with written authorization of the Department. (ii) It is an offense if a public user fails to perform on-site registration. (16) Gene Howe Wildlife Management Area. (A) Deer: (i) Archery-on designated days during the period from September 1-January 31; one deer (either-sex); by annual public hunting permit. (ii) General-during the period from October 1-February 15; one deer as specified on the permit; by special permit. (B) Exotic mammal: Concurrent seasons-to correspond with hunt dates, shooting hours, means and methods and permit requirements for deer; no bag or possession limit. (C) Turkey-during the months of April and May; one gobbler; by special permit. (D) Quail-on designated days during the period from October-February; by annual public hunting permit. (E) Mourning dove-on designated days by annual public hunting permit. (F) Rabbits and hares-to correspond with hunt dates and shooting hours designated for quail and mourning dove; no bag or possession limit; by annual public hunting permit. (G) Fishing-season closed on days when hunts are conducted by special permit; annual public hunting permit required. (H) Special regulations-It is an offense if a public user fails to perform on- site registration. (17) Granger Wildlife Management Area. (A) Exotic mammal: Archery-during the period from October 1-May 31; no bag or possession limit; by annual public hunting permit. (B) Squirrel-by annual public hunting permit. (C) Quail-by annual public hunting permit. (D) Mourning doves-by annual public hunting permit. (E) Waterfowl-by annual public hunting permit. (F) Woodcock-by annual public hunting permit. (G) Gallinules-by annual public hunting permit. (H) Snipe-by annual public hunting permit. (I) Rabbits and hares-no closed season; no bag or possession limits; by annual public hunting permit. (J) Furbearing animals-during daylight hours only from September 1-March 31; by annual public hunting permit. (K) Coyotes-during daylight hours only from September 1-March 31; no bag or possession limit; by annual public hunting permit. (L) Fishing-no permit required. (M) Special regulations: (i) It is an offense to park other than in designated areas. (ii) It is a violation to use any type of device other than a shotgun with non-toxic shot or no larger than size #4 lead shot or bow and arrow for hunting (Non-toxic shot requirements for hunting waterfowl remain in effect). (iii) Dogs may be used in hunting coyotes and furbearers. (18) Guadalupe Delta Wildlife Management Area. (A) Waterfowl-on designated days; shooting hours end at noon; by regular permit. (B) King and clapper rails-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (C) Sora and Virginia rails-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (D) Gallinules-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (E) Snipe-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (F) Alligator-one alligator as specified on the permit; means and methods as specified on the permit or attachments; by special permit. (19) Gus Engeling Wildlife Management Area. (A) Deer: (i) Archery-on designated days during the period from September 1-January 31; one deer (either-sex); by annual public hunting permit. (ii) General-during the period from October 1-February 15; one deer as specified on the permit; by special permit. (B) Exotic mammal: (i) Archery: Concurrent seasons -to correspond with hunt dates and shooting hours designated for archery-only deer hunts; no bag or possession limits; by annual public hunting permit. (ii) General-during the period from September 1-August 31; no bag or possession limits; by special permit. (C) Squirrel-on designated days; by annual public hunting permit. (D) Turkey-during the months of April and May; one gobbler; by special permit. (E) Waterfowl-on designated days; shooting hours end at noon; by annual public hunting permit. (F) Woodcock-on dates and shooting hours which correspond with those designated for waterfowl hunts; by annual public hunting permit. (G) Gallinules-on dates and shooting hours which correspond to those designated for waterfowl hunts; by annual public hunting permit. (H) Snipe-on dates and shooting hours which correspond to those designated for waterfowl hunts; by annual public hunting permit. (I) Rabbits and hares-to correspond with dates and shooting hours designated for squirrel hunts; no bag or possession limits; by annual public hunting permit. (J) Fishing-season is closed on dates designated for hunts by special or regular permit; by annual public hunting permit. (K) Special regulations: (i) It is an offense if a public user fails to perform on-site registration. (ii) It is an offense to possess a rifle or handgun of greater size than .22- caliber rimfire while hunting during the season designated for squirrel. (iii) Individuals who participate only in the self guided driving tour and designated nature trails need not possess a Texas Conservation Passport. (iv) Horses, mules, burros and other types of riding stock or pack animals may be possessed and used in accordance with written authorization of the Department for educational events sanctioned by the Department. (20) James Daughtrey Wildlife Management Area. (A) Deer: (i) Archery-during the period from September 1-January 31; one deer (either- sex); by special permit. (ii) General-during the period from October 1-February 15; one deer as specified on the permit; by special permit. (B) Exotic mammal: Concurrent seasons-to correspond with hunt dates, shooting hours, and means and methods established for deer hunts; no bag or possession limit; by special permit. (C) Javelina: (i) Archery: Concurrent seasons -to correspond with dates and shooting hours designated for archery-only deer hunts; one javelina (either-sex); by special permit. (ii) General-during the period of September 1-March 31; one javelina (either- sex); by special permit. (D) Turkey-during the months of April and May; one gobbler; by special permit. (E) Quail-on designated days during the period from October-February; by annual public hunting permit. (F) Mourning dove-on designated days by annual public hunting permit. (G) Waterfowl-by annual public hunting permit. (H) Sandhill crane-by annual public hunting permit. (I) Snipe-by annual public hunting permit. (J) Rabbits and hares-to correspond with hunt dates and shooting hours designated for quail and mourning dove; no bag or possession limit; by annual public hunting permit. (K) Coyote-on designated days during the period from September 1-August 31; no bag or possession limit; by regular permit. (L) Fishing-no permit required. (M) Special regulations-during times when hunting by special permit is being conducted on the area, it is an offense if a person without a valid special hunting permit ventures inland farther than a distance of 100 yards from the shoreline of Choke Canyon Reservoir. (21) J. D. Murphree Wildlife Management Area. (A) Waterfowl-on designated days; shooting hours end at noon; by regular permit. (B) King and clapper rails-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (C) Sora and Virginia rails-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (D) Gallinules-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (E) Snipe-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (F) Fishing-no permit required. (i) In that portion of Keith Lake which lies within the confines of the J. D. Murphree Wildlife Management Area, fishing is permitted year-round with no daylight restrictions. (ii) It is an offense to fish in that portion of Big Hill Bayou which lies within the J. D. Murphree Area, except during the period from the Monday following the closing of waterfowl season through October 31, both days inclusive, from 30 minutes before sunrise to 30 minutes after sunset. (iii) In the remainder of the area, it is an offense to fish except during the period from March 1-August 31, both days inclusive, from 30 minutes before sunrise to 30 minutes after sunset, but when required by the department for the proper management of waterfowl resources, leveed wetland compartments or outside borrow ditches may be temporarily closed to fishing. (iv) Powered skiffs, powered boats, or powered floating craft of any type with motor not to exceed 35 horsepower shall be permitted within leveed wetland compartments during the period from March 1-August 31. (v) The use of boats, skiffs, or floating craft of any type in the ditches along the west boundary of Wetland Compartments 5, 6, 7, 8, and 9, and the north boundary of Wetland Compartment 11 is an offense, except for travel by permitted hunters. (vi) It is an offense to take fish within leveed wetland compartments and borrow ditch areas other than by means of pole and line, except that gar may be taken by means of bowfishing utilizing an arrow securely attached to the bow with a line. (vii) It is an offense for a person to leave a fishing line unattended at any time within a leveed compartment or borrow ditch. (viii) In that portion of Big Hill Bayou and Keith Lake which lies within the J. D. Murphree Area, the use of jug lines and seines and nets other than 20-foot minnow seines is an offense. (G) Alligator-one alligator as specified on the permit; means and methods as specified on the permit or attachments; by special permit. (H) Special regulations: (i) The use of airboats is an offense, except in Big Hill Bayou, Blind Bayou, and Keith Lake. (ii) The use or possession of dogs is an offense except one dog per permit- holding hunter is permitted to retrieve dead or wounded waterfowl. (22) Keechi Creek Wildlife Management Area. (A) Deer: (i) Archery-during the period from September 1-January 31; one deer (either- sex); by special permit. (ii) General-during the period from October 1-February 15; one deer as specified on the permit; by special permit. (B) Exotic mammal: (i) Concurrent seasons-to correspond with hunt dates, shooting hours, and means and methods designated for deer hunts; no bag or possession limits; by special permit. (ii) General-during the period from September 1-August 31; no bag or possession limits; by special permit. (C) Squirrel-on designated days; by regular permit. (D) Turkey-during the months of April and May; one gobbler; by special permit. (E) Waterfowl-on designated days; shooting hours end at noon; by regular permit. (F) Woodcock-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (G) Gallinules-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (H) Snipe-on dates and shooting hours which correspond to those established for waterfowl hunts; by regular permit. (I) Rabbits and hares-to correspond with dates and shooting hours designated for squirrel hunts; no bag or possession limits; by regular permit. (J) Fishing-no open season. (K) Special regulations-It is an offense to possess a rifle or handgun of greater size than .22-caliber rimfire while hunting during the season designated for squirrel. (23) Kerr Wildlife Management Area. (A) Deer: (i) Archery-during the period from September 1-January 31; one deer (either- sex); by special permit. (ii) General-during the period from October 1-February 15; one deer as specified on the permit; by special permit. (B) Exotic mammals: (i) Concurrent seasons-to correspond with hunt dates, shooting hours, and means and methods designated for deer hunts; no bag or possession limit; by special permit. (ii) General-during the period from September 1-August 31; no bag or possession limit; means and methods as specified on the permit; by special permit. (C) Javelina: Archery: Concurrent seasons-to correspond with dates and shooting hours designated for archery-only deer hunts; one javelina (either- sex); by special permit. (D) Turkey-during the months of April and May; one gobbler; by special permit. (E) Mourning dove-on designated days; by annual public hunting permit. (F) Rabbits and hares-to correspond with hunt dates and shooting hours established for mourning dove; no bag or possession limit; by annual public hunting permit. (G) Fishing-no permit required; on-site registration required. (H) Individuals who participate only in the self guided driving tour need not possess a Texas Conservation Passport or perform on-site registration. (24) Lands within a desert bighorn sheep Cooperative Unit. (A) Desert bighorn sheep-during the period from September 1-August 31; one desert bighorn sheep ram as specified on the permit; by special permit. (B) Special regulations-the possession and use of horses, mules, burros and other types of riding stock or pack animals during public hunts for desert bighorn sheep may be permitted on departmental lands in accordance with written authorization of the Department. (25) Lower Neches Wildlife Management Area. (A) Waterfowl-on designated days; shooting hours end at noon; by annual public hunting permit. (B) King and clapper rails-on dates and shooting hours which correspond to those designated for waterfowl hunts; by annual public hunting permit. (C) Sora and Virginia rails-on dates and shooting hours which correspond to those designated for waterfowl hunts; by annual public hunting permit. (D) Gallinules-on dates and shooting hours which correspond to those designated for waterfowl hunts; by annual public hunting permit. (E) Snipe-on dates and shooting hours which correspond to those designated for waterfowl hunts; by annual public hunting permit. (F) Fishing-no permit required. (i) It is an offense to take fish within the area other than by means of pole and line, except that gar may be taken by means of bowfishing utilizing an arrow securely attached to the bow with a line. (ii) It is an offense for a person to leave a fishing line unattended at any time within the area. (iii) It is an offense to use trotlines and juglines. (iv) It is an offense to use crab traps in that portion of the area east of State Highway 87. (v) In the Nelda Stark Unit and in that portion of the Old River Unit that includes the Old River Cove, the Gulf States Utilities (G.S.U.) intake canal, and 150 feet on either side of Lake Street and State Highway 87, fishing is permitted year-round without daylight restrictions. (vi) In the portion (1437 acres) of The Old River Unit leased from Gulf States Utilities, west of Hwy 87, it is an offense to fish except during the period from Monday following the close of waterfowl season through October 31, both days inclusive, from 30 minutes before sunrise to 30 minutes after sunset, but when required by the Department for the proper management of waterfowl resources, portions of the Area may be closed to fishing for temporary periods of time. (vii) In the remainder of the Old River Unit, it is an offense to fish except during the period from March 1-August 31, both days inclusive, from 30 minutes before sunrise to 30 minutes after sunset, but when required by the Department for the proper management of waterfowl resources, portions of the area may be closed to fishing for temporary periods of time. (G) Alligator-one alligator as specified on the permit; means and methods as specified on the permit or attachments; by special permit. (H) Special regulations: The use of airboats is an offense in the Old River Unit. (26) Mad Island Wildlife Management Area. (A) Waterfowl-on designated days; shooting hours end at noon; by regular permit. (B) King and clapper rails-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (C) Sora and Virginia rails-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (D) Gallinules-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (E) Snipe-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (F) Alligator-one alligator as specified on the permit; means and methods as specified on the permit or attachments; by special permit. (27) Matador Wildlife Management Area. (A) Deer: (i) Archery-during the period from September 1-January 31; one deer (buck- only); by special permit. (ii) General-during the period from October 1-February 15; one deer as specified on the permit; by special permit. (B) Exotic mammals: Concurrent seasons-to correspond with hunt dates, shooting hours, means and methods. and permit requirements designated for deer hunts; no bag or possession limit. (C) Turkey-during the months of April and May; one gobbler; by special permit. (D) Quail-on designated days; by annual public hunting permit. (E) Mourning dove-on designated days; by annual public hunting permit. (F) Waterfowl-on designated days; by annual public hunting permit. (G) Rabbits and hares-to correspond with hunt dates and shooting hours designated for quail and mourning dove; no bag or possession limits; by annual public hunting permit. (H) Fishing-fishing is permitted year-round, except on days when hunts are being conducted by special permit; annual public hunting permit required. (I) Special regulations-It is an offense if a public user fails to perform on- site registration. (28) Matagorda Island Wildlife Management Area. (A) Deer: General-during the period from October 1-February 15; one deer as specified on the permit; by special permit. (B) Exotic mammals: (i) Concurrent seasons-to correspond with hunt dates, shooting hours, and means and methods established for deer hunts; no bag or possession limit; by special permit. (ii) General-during the period from September 1-August 31; no bag or possession limit; by special permit. (C) Quail-on designated days; by regular permit. (D) Mourning dove-on designated days; by regular permit. (E) Waterfowl-on designated days; shooting hours end at noon; by regular permit, except within the designated marsh unit no permit is required, there is no restriction to designated hunt days, and shooting hours do not end at noon. (F) King and clapper rails-on dates and shooting hours and permit requirements which correspond to those designated for waterfowl hunts. (G) Sora and Virginia rails-on dates and shooting hours and permit requirements which correspond to those designated for waterfowl hunts. (H) Gallinules-on dates and shooting hours and permit requirements which correspond to those designated for waterfowl hunts. (I) Snipe-on dates and shooting hours and permit requirements which correspond to those designated for waterfowl hunts. (29) M. O. Neasloney Wildlife Management Area. (A) Fishing-no open season. (B) Special regulations-access for non-consumptive use is only through prior arrangement with the Department. (30) Old Tunnel Wildlife Management Area-Special regulations: (A) It is an offense to take wildlife resources. (B) It is an offense to park or operate motor vehicles in an area other than the designated parking area. (C) It is an offense to disturb roosting bats. (D) It is an offense for a person to allow a dog, cat, or any animal to enter the area unleashed and not under the person's physical control. (E) It is an offense for a person to enter that portion of the railroad bed located between the steep excavated walls of the former railroad right-of-way or into the excavated tunnel. (31) Pat Mayse Wildlife Management Area. (A) Deer: (i) Archery-one deer (either-sex); no annual public hunting permit required. (ii) General-during the period from October 1-February 15; one deer as specified on the permit; by special permit. (B) Exotic mammal: Concurrent seasons-to correspond with hunt dates, shooting hours, means and methods, and permit requirements designated for deer; no bag or possession limit. (C) Squirrel-closed on days designated for hunts by special permit; no annual public hunting permit required. (D) Quail-closed on days designated for hunts by special permit; no annual public hunting permit required. (E) Mourning dove-closed on days designated for hunts by special permit; no annual public hunting permit required. (F) Waterfowl-no annual public hunting permit required. (G) Woodcock-closed on days designated for hunts by special permit; no annual public hunting permit required. (H) Gallinules-no annual public hunting permit required. (I) Snipe-no annual public hunting permit required. (J) Rabbits and hares-no closed season, except no hunting for rabbits or hares on days designated for hunts by special permit; no bag or possession limit; no annual public hunting permit required. (K) Furbearing animals-during the period from September 1-March 31, except season closed on days designated for hunts by special permit; no annual public hunting permit required. (L) Coyote-during the period from September 1-March 31, except season closed on days designated for hunts by special permit; no bag or possession limit; no annual public hunting permit required. (M) Fishing-no permit required. (N) Special regulations: (i) It is an offense to use any device other than shotguns with non-toxic shot or no larger than size #4 lead shot or bow and arrow for hunting, except that lawful firearms, including shotguns using only slugs, are the only legal firearms for taking deer or exotic mammals during the general season (Non-toxic shot requirements for hunting waterfowl remain in effect). (ii) Dogs may be used in hunting coyotes and furbearers. (iii) It is an offense if a public user fails to perform on-site registration. (32) Peach Point Wildlife Management Area. (A) Waterfowl-on designated days; shooting hours end at noon; by regular permit. (B) Exotic mammal: General-during the period from September 1-August 31; no bag or possession limit; by special permit. (C) King and clapper rails-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (D) Sora and Virginia rails-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (E) Gallinules-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (F) Snipe-on dates and shooting hours which correspond to those designated for waterfowl hunts; by regular permit. (33) Richland Creek Wildlife Management Area. (A) Deer: (i) Archery-on designated days during the period from September 1-January 31; one deer (either-sex); by annual public hunting permit. (ii) General-during the period from October 1-February 15; one deer as specified on the permit; by special permit. (B) Exotic mammal: Concurrent seasons-to correspond with hunt dates, shooting hours, means and methods, and permit requirements designated for deer; no bag or possession limit. (C) Squirrel-on designated days; by annual public hunting permit. (D) Quail-on designated days; by annual public hunting permit. (E) Mourning dove-on designated days; by annual public hunting permit. (F) Waterfowl-on designated days; shooting hours end at noon; by annual public hunting permit. (G) Woodcock-on dates and shooting hours which correspond with those designated for waterfowl hunts; by annual public hunting permit. (H) Gallinules-on dates and shooting hours which correspond to those designated for waterfowl hunts; by annual public hunting permit. (I) Snipe-on dates and shooting hours which correspond to those designated for waterfowl hunts; by annual public hunting permit. (J) Rabbits and hares-on designated days; no bag or possession limits; by annual public hunting permit. (K) Fishing-closed on dates designated for hunts by special permit; by annual public hunting permit, except that fishermen who enter and exit the area by boat are not required to possess an annual public hunting permit. (L) Special regulations-It is an offense to possess a rifle or handgun of greater size than .22-caliber rimfire while hunting during the season designated for squirrel. (34) Sheldon Wildlife Management Area. Fishing-no permit required. (A) It is an offense to fish except during the period from 5:00 a.m. to 9:30 p.m. each day. (B) It is an offense to use handlines and trotlines. (C) It is an offense to wade fish and use boats during the period November 1- February 28, both days inclusive. (D) It is an offense to use boat motors over 10 horsepower. (35) Sierra Diablo Wildlife Management Area. (A) Deer: (i) Archery-during the period from September 1-January 31; one deer (buck- only); by special permit. (ii) General-during the period from October 1-February 15; one deer as specified on the permit; by special permit. (B) Javelina. Archery: Concurrent seasons-to correspond with dates and shooting hours designated for archery-only deer hunts; one javelina (either- sex); by special permit. (C) Desert bighorn sheep-during the period from September 1-August 31; one desert bighorn sheep ram as specified on the permit; by special permit. (D) Fishing-no open season. (E) Special regulation-the possession and use of horses, mules, burros and other types of riding stock or pack animals during public hunts for desert bighorn sheep may be permitted in accordance with written authorization of the Department. (36) Somerville Wildlife Management Area. (A) Deer: (i) Archery-one deer (either-sex); by annual public hunting permit. (ii) General-during the period from October 1-February 15; one deer as specified on the permit; by special permit. (B) Exotic mammal: (i) Concurrent seasons-to correspond with hunt dates, shooting hours, means and methods, and permit requirements designated for deer; no bag or possession limit. (ii) Archery-during the period from January 15-March 15; no bag or possession limit; by annual public hunting permit. (C) Squirrel-closed on days designated for hunts by special permit; by annual public hunting permit. (D) Quail-closed on days designated for hunts by special permit; by annual public hunting permit. (E) Mourning dove-closed on days designated for hunts by special permit; by annual public hunting permit. (F) Waterfowl-closed on days designated for hunts by special permit; by annual public hunting permit. (G) Woodcock-closed on days designated for hunts by special permit; by annual public hunting permit. (H) Gallinules-closed on days designated for hunts by special permit; by annual public hunting permit. (I) Snipe-closed on days designated for hunts by special permit; by annual public hunting permit. (J) Rabbits and hares-no closed season, except no hunting for rabbits or hares on days designated for hunts by special permit; no bag or possession limit; by annual public hunting permit. (K) Fishing-no permit required. (L) Special regulations: (i) It is an offense to park other than in designated areas. (ii) It is an offense to use any device other than shotguns with non-toxic shot or no larger than size #4 lead shot or bow and arrow for hunting, except that lawful firearms, including shotguns using only slugs, are the only legal firearms for taking deer or exotic mammals during the general season (Non-toxic shot requirements for hunting waterfowl remain in effect). (37) Walter Buck Wildlife Management Area. (A) Deer: (i) Archery-during the period from September 1-January 31; one deer (either- sex); by special permit. (ii) General-during the period from October 1-February 15; one deer as specified on the permit; by special permit. (B) Exotic mammal: Concurrent seasons-to correspond with hunt dates, shooting hours, and means and methods designated for deer; no bag or possession limit; by special permit. (C) Javelina. Archery: Concurrent seasons-to correspond with dates and shooting hours designated for archery-only deer hunts; one javelina (either- sex); by special permit. (D) Turkey-during the months of April and May; one gobbler; by special permit. (E) Fishing-no open season. (38) White Oak Creek Wildlife Management Area. (A) Deer: (i) Archery-one deer (either sex); on designated days; by annual public hunting permit. (ii) General-during the period from October 1-February 15; one deer as specified on the permit; by special permit. (B) Exotic mammal: (i) Concurrent seasons-to correspond with hunt dates, shooting hours, means and methods, and permit requirements designated for taking deer; no bag or possession limits. (ii) General-during the period from September 1-August 31; no bag or possession limit; by special permit. (C) Squirrel-on designated days ; by annual public hunting permit. (D) Quail-on designated days; by annual public hunting permit. (E) Mourning dove-on designated days; by annual public hunting permit. (F) Waterfowl-on designated days during the waterfowl seasons established for Bowie, Cass, Morris, and Titus counties; shooting hours end at noon; by annual public hunting permit. (G) Woodcock-on designated days; by annual public hunting permit. (H) Snipe-on dates and shooting hours which correspond to those designated for waterfowl hunts; by annual public hunting permit. (I) Rabbits and hares-on designated days; no bag or possession limits; by annual public hunting permit. (J) Fishing-no permit required. (K) Special regulations-It is an offense to use any device other than shotguns with non-toxic shot or no larger than size #4 lead shot or bow and arrow for hunting, except that lawful firearms, including shotguns using only slugs, are the only legal firearm for taking deer or exotic mammals during the general season (Non-toxic shot requirements for hunting waterfowl remain in effect). (39) Units 102, 103, 104, 106, 136, 137, 142, 152, 154, 155, 159, 902 (Moore Plantation Wildlife Management Area) and 903 (Bannister Wildlife Management Area). (A) Deer: (i) Archery-either sex; by annual public hunting permit. (ii) General-either sex during the first two days of the general season and buck-only thereafter; by annual public hunting permit. (B) Exotic mammal: (i) Concurrent seasons-to correspond with hunt dates, shooting hours, and means and methods designated for deer; no bag or possession limit; by annual public hunting permit. (ii) General-only on Units 902 and 903 during the period from January 15-March 15; no bag or possession limit; by annual public hunting permit. (C) Squirrel-by annual public hunting permit. (D) Game birds (other than turkey)-by annual public hunting permit. (E) Furbearers-by annual public hunting permit. (F) Predatory animals-no closed season and no bag or possession limit; by annual public hunting permit. (G) Rabbits and hares-no closed season and no bag or possession limit; by annual public hunting permit. (H) Fishing, frogs and crayfish-by annual public hunting permit on areas other than Units 902 and 903. (I) Special regulations-On Units 902 and 903, during seasons other than the Early Teal Season, it is an offense to hunt waterfowl at any time except on Wednesday, Saturday, and Sunday and only during legal shooting hours in the a.m. until noon each day during the regular seasons. (40) Units 109, 113, 114, 115, 116, 117, 119, 120, 121, 122, 125, 129, 130, 133, 143, 144, 145, 146, 147, 150, 151, 156, 157, 158, 160, 204, 210, 211, 213, 217, 218, 223, 301, 615 (North Toledo Bend Wildlife Management Area), 616, 712 (Blue Elbow Swamp Wildlife Management Area), 630, 801, 803, 904 (Alabama Creek Wildlife Management Area), and 905 (Sam Houston National Forest) . (A) Deer: (i) Archery-either sex; by annual public hunting permit. (ii) General-buck only; by annual public hunting permit. (B) Exotic mammal: (i) Concurrent seasons-to correspond with hunt dates, shooting hours, and means and methods designated for deer; no bag or possession limit; by annual public hunting permit. (ii) General-only on Units 615, 630, 904, and 905 during the period from January 15-March 15; no bag or possession limit; by annual public hunting permit. (C) Squirrel-by annual public hunting permit. (D) Game birds (other than turkey)-by annual public hunting permit. (E) Furbearer-by annual public hunting permit. (F) Predatory animals-no closed season and no bag or possession limit; by annual public hunting permit. (G) Rabbits and hares-no closed season and no bag or possession limit; by annual public hunting permit. (H) Fishing, frogs and crayfish-by annual public hunting permit on areas other than 904 and 905. (I) Special regulations- (i) On Units 615, 904 and 905 during seasons other than the Early Teal Season, it is an offense to hunt waterfowl at any time except on Wednesday, Saturday, and Sunday and only during legal shooting hours of 30 minutes before sunrise until noon each day during the regular season. (ii) On the Sam Houston National Forest Wildlife Management Area (Unit 905) the use of a dog or dogs to hunt, pursue, or take feral hogs is permitted only during the period from January 15-March 15. (41) Units 135, 224, 607, and 901 (Caddo Wildlife Management Area). (A) Deer: (i) Archery-buck-only; by annual public hunting permit. (ii) General-buck-only; by annual public hunting permit. (B) Exotic mammal: Concurrent seasons-to correspond with hunt dates, shooting hours, and means and methods designated for deer; no bag or possession limit; by annual public hunting permit. (C) Squirrel-by annual public hunting permit. (D) Game birds (other than turkey)-by annual public hunting permit. (E) Furbearers-by annual public hunting permit. (F) Predatory animals-no closed season and no bag or possession limit; by annual public hunting permit. (G) Rabbits and hares-no closed season and no bag or possession limit; by annual public hunting permit. (H) Fishing, frogs and crayfish-by annual public hunting permit on areas other than Unit 901. (I) Special regulations-On Unit 901, during seasons other than the Early Teal Season, it is an offense to hunt waterfowl at any time except on Wednesday, Saturday, and Sunday and only during legal shooting hours of 30 minutes before sunrise until noon each day during the regular seasons. (42) Unit 501 (Lake Ray Roberts Wildlife Management Area). (A) Squirrel-by annual public hunting permit. (B) Game birds (other than turkey)-by annual public hunting permit. (C) Rabbits and hares-no bag or possession limit; by annual public hunting permit. (D) Frogs-by annual public hunting permit. (E) Fishing-no permit required. (F) Special regulations: (i) It is an offense to possess firearms and ammunition other than shotguns with shotshells containing non-toxic shot or no larger than size #4 lead shot. (Non-toxic shot requirements for hunting waterfowl remain in effect.) (ii) It is an offense to discharge firearms except while hunting. (iii) It is an offense to camp overnight. (iv) It is an offense to hunt waterfowl in that portion of the Unit located north of FM Road 3002, which is designated as a waterfowl sanctuary. (v) It is an offense to hunt on the land or water within 100 yards of State Park boundaries. (43) Unit 617 (Cleavinger Tract). (A) Pheasant-by annual public hunting permit. (B) Rabbits and hares-concurrent with shooting hours and seasons for taking pheasant; no bag or possession limit; by annual public hunting permit. 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 May 16, 1994. TRD-9440908 Paul M. Shinkawa Acting General Counsel Texas Parks and Wildlife Department Effective date: June 6, 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 18. Native American Restitutionary Program Subchapter A. Program Requirements 40 TAC sec.sec.18.1-18.5 The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.18. 1-18.5 concerning program requirements without changes to the proposed text as published in the April 12, 1994, issue of the Texas Register (19 TexReg 2704). Justification for the repeal is to have a rulebase free of obsolete rules. The repeals will function by deleting the rules from DHS's rulebase, because the program is now administered by the Texas Department of Housing and Community Affairs. The department received no comments regarding the adoption of the repeals. The repeals are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs. 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 May 13, 1994 TRD-9440845 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: June 15, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 450-3765 Chapter 19. Long-Term Care Nursing Facility Requirements for Licensure and Medicaid Certification The Texas Department of Human Services (DHS) adopts the repeal of sec.19. 218 and adopts an amendment to sec.19.219, concerning incompetency and documentation for the delegation of long term care resident's rights, in its Long Term Care Nursing Facility Requirements rule chapter, without changes to the proposed text as published in the April 5, 1994, issue of the Texas Register (19 TexReg 2378). The justification for the repeal and new section is to comply with Senate Bill 332 which provides a surrogate decision-making process for incompetent adults residing in nursing facilities. The repeal and amendment will function by enhancing the rights of nursing facility residents. No comments were received regarding adoption of the repeal and amendment. 40 TAC sec.19.218 The repeal is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The repeal implements the Human Resources Code, sec.sec.32.001-32.042. 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 May 16, 1994 TRD-9440928 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: July 15, 1994 Proposal publication date: April 5, 1994 For further information, please call: (512) 450-3765 40 TAC sec.19.219 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec. sec.32.001-32.042. 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 May 16, 1994 TRD-9440942 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: July 15, 1994 Proposal publication date: April 5, 1994 For further information, please call: (512) 450-3765 Chapter 48. Community Care for Aged and Disabled 1915(c) Medicaid Home and Community-Based Waiver Services for Aged and Disabled Adults Who Meet Criteria for Alternatives to Nursing Facility Care 40 TAC sec.sec.48.6003, 48.6009, 48.6030-48.6034 The Texas Department of Human Services (DHS) adopts amendments to sec.sec.48. 6003 and 48.6009 and adopts new sec.sec.48.6030-48.6033 without changes to the proposed text as published in the February 22, 1994, issue of the Texas Register (19 TexReg 1318). Section 48.6034 is adopted with a change to the proposed text. The justification for the amendments is to establish consistent policies and make more housing options available to Nursing Facility Waiver clients. The amendments and new sections will function by establishing general contracting requirements for Nursing Facility Waiver providers; defining the housing options available to Nursing Facility Waiver clients in personal care facilities; including maximum service ceilings for adaptive aids and medical supplies, minor home modifications, respite care, and the protective supervision component of the personal assistance service category; and making the copayment requirements for couples consistent with the one for individuals. The department received comments from Living Centers of America, Texas Health Care Association, and Educare Community Living Corporation. The following are comments and DHS's responses. Comment: Representatives from the Texas Health Care Association and Living Centers of America commented in reference to sec.48.6003 that it was not financially prudent to raise the service caps on adaptive aids, medical supplies and minor home modifications since a transfer of funds was necessary to implement the waiver program. Response: No change was proposed to the cap on Minor Home Modifications. The increase in the cap on Adaptive Aids was proposed in response to recommendations from the ADAC subcommittee on Services to Persons with Disabilities. This increase will allow individuals to utilize a greater percentage of their annual cost cap on expenditures for Adaptive Aids. Increasing the cap on Adaptive aids will not change the annual cost limit for each waiver participant. Comment: The Texas Health Care Association asked for an explanation of protective supervision in sec.48.6003(a)(8)(D). Response: Protective supervision or respite is provided by attendants employed by home health agencies that provide Personal Assistance and Support Services. Protective supervision is provided when the primary caregiver is out of the home for short periods of respite and there are not specific tasks to occupy the attendant's time. Comment: The Texas Health Care Association (THCA) commented in reference to sec.48.6034 that the assisted living/residential care services proposal should be changed to allow for creativity and consumer choice to shape the market rather than applying artificial limitations on the appearance of the structure to try to assure quality. THCA stated that Texas should want to encourage, where appropriate, the conversion of nursing home space to personal care. The January 1, 1994, residential care apartment construction deadline should be eliminated. Response: In the interest of promoting the availability of different kinds of Assisted Living/Residential Care providers for the Nursing Facility Waiver program, the January 1, 1994, requirement for construction has been deleted from sec.48.6034(b). The deletion resulted in the renumbering of subparagraphs (A) and (B) to paragraphs (1) and (2). All other portions of sec.48.6034 remain the same. Comment: Educare commented that the requirement for providers of Personal Assistance and Support Services to be licensed as CLASS A Home Health agencies referenced in sec.48.6030 of the proposed rules may reduce the number of qualified providers. Educare recommended that providers be licensed as either Class A or B Home Health agencies until House Bill 1551 is implemented. Response: The requirement for a Class A Home Health agency license was proposed in order to facilitate the utilization and coordination of benefits available to waiver participants through Medicare. Utilization of Medicare benefits will improve the cost-effectiveness of the waiver program. In order currently to participate in Medicare, a Home Health agency must have a Class A license. Implementation of changes to the Home Health licensure requirements specified in House Bill 1551 will change this requirement. Effective June 1, 1994, in order to participate in Medicare under House Bill 1551, the home health agency will have to meet the Standards for Licensed and Certified Home Health Services in 25 TAC sec.115.23. DHS is changing the proposed language in sec.48.6030 to be consistent with the Medicare requirements under House Bill 1551. Comment: Living Centers of America recommended in reference to sec.48.6034 that to ensure quality patient care across the continuum of services that Assisted Living and Residential Care programs and providers should be treated the same as nursing facility programs and providers. Rules, regulations, and standards should be the same across the board to protect those persons who need care regardless of where they receive that care. Response: The waiver program is designed to be an alternative to institutional care in a nursing facility. If nursing facility rules, regulations, and standards were applied to waiver providers, the facilities would be nursing facilities and waiver participants would not have options for less restrictive environments. Assisted Living/Residential Care providers will be subject to the rules, regulations, and standards for personal care facilities. Comment: Living Centers of America recommended that the 80-hour minimum nurse aide training requirements placed on nursing facilities should also apply to Adult Foster Care Providers in sec.48.6032. This would ensure that persons needing care are treated by trained direct care staff and would be the standard across the board, regardless as to the setting in which that care is received. Response: According to the rules promulgated by the Board of Nurse Examiners, sec.218, Delegation of Selected Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel, an "unlicensed person" is defined as: "An individual who is not licensed as a health care provider, who functions in a complementary or assistive role to the RN in providing direct client care or carrying out common nursing functions." Nurse Aide status is not required for delegation. Skilled tasks needed by NFW participants in Adult Foster Care will be subject to delegation by a registered nurse to the Adult Foster Care provider. If delegation is not an option, in the opinion of the registered nurse, according to the scope of her licensure, other options for the participant to receive the necessary care will be evaluated. Such options could include direct delivery of the skilled care by a licensed nurse. The amendments and new sections are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments and new sections implement the Human Resources Code, sec.sec.22. 001-22.024 and sec.sec.32.001-32.042. sec.48.6034. Housing Options in Assisted Living/Residential Care Services. (a) An Assisted Living apartment setting is defined as an apartment for single occupancy that is a private space with individual living and sleeping areas, a kitchen, bathroom, and adequate storage space, as specified in the following. (1) The apartment must have a minimum of 220 square feet, not including the bathroom. Apartments in pre-existing structures being remodeled must have a minimum of 160 square feet, not including the bathroom. (2) The kitchen is an area equipped with a sink, refrigerator, a cooking appliance that can be removed or disconnected, adequate space for food preparation, and storage space for utensils and supplies. A cooking appliance may be a stove, microwave, or built-in surface unit. (3) The bathroom must be a separate room in the individual's living area with a toilet, sink, and an accessible bath. (4) The bedroom must be single-occupancy except when double occupancy is requested by the participant. (b) A Residential Care apartment must be a double occupancy apartment with a connected bedroom, kitchen, and bathroom area that provides a minimum of 350 square feet of space per client, and meet the following specifications. (1) Indoor common areas used by waiver clients may be included in computing the minimum square footage. The portion of the common area allocated must not exceed usable square footage divided by the maximum number of individuals who have access to the common areas. (2) The kitchen must be equipped with a sink, refrigerator, a cooking appliance that can be removed or disconnected, adequate space for food preparation, and storage space for utensils and supplies. A cooking appliance may be a stove, microwave, or built-in surface unit. (c) The Assisted Living/Residential Care apartment may be an efficiency or one or two bedroom apartment, and each apartment must have a private bath and cooking facilities. (d) A Residential Care non-apartment setting is defined as a Licensed Personal Care facility which has living units that do not meet either the definition of an Assisted Living apartment or a Residential Care apartment, may be double occupancy, and must: (1) be freestanding; and (2) be licensed for 16 or fewer beds. 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 May 16, 1994 TRD-9440940 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: June 15, 1994 Proposal publication date: February 22, 1994 For further information, please call: (512) 450-3765 Subchapter C. Standards for Licensure 40 TAC sec.90.41 The Texas Department of Human Services (DHS) adopts an amendment to sec.90. 41, concerning standards for nursing facilities, in its Nursing Facilities and Related Institutions rule chapter. The amendment is adopted without changes to the proposed text as published in the April 5, 1994, issue of the Texas Register (19 TexReg 2379). The justification for the amendment is to comply with Senate Bill 332, which provides a surrogate decision-making process for incompetent adults residing in nursing facilities. The amendment will function by enhancing the rights of nursing facility residents. No comments were received regarding adoption of the amendment. The amendment is adopted under the Health and Safety Code, Chapter 242 which provides the department with the authority to license long-term care nursing facilities and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. 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 May 16, 1994. TRD-9440941 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: July 15, 1994 Proposal publication date: April 5, 1994 For further information, please call: (512) 450-3765 Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's Note: As required by the Insurance Code, Article 5.96 and 5. 97, the Texas Register publishes notices of actions taken by the Texas Department of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the Texas Department of Insurance, 333 Guadalupe, Austin.) The Commissioner of Insurance of the Texas Department of Insurance, at a meeting held at 8:30 a.m., May 2, 1994, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street in Austin, adopted an amendment proposed by Staff to the Texas Automobile Rules and Rating Manual (the Manual), Rule 42, Texas Automobile Insurance Plan. Staff's petition (Reference Number A- 0394-06-I) was published in the March 18, 1994, issue of the Texas Register (19 TexReg 1990). Other alternatives for amending Rule 42 were proposed in a petition filed by Sidney P. Childress (Reference Number A-1193-06) and in comments filed by others. However, only one suggested change to Staff's proposal is adopted herein, and the other proposals are to be considered by department staff who will later make its recommendations to the Commissioner. The one change that is made to Staff's proposal is deletion of the word "wilful" from the exception being added to Rule 42.B. Therefore, Rule 42.B.'s list of non-surchargeable convictions is expanded by the following language: "4. convictions for violations of written promises to appear in court." The amendment as adopted by the Commissioner of Insurance is shown in an exhibit on file with the Chief Clerk under Reference Number A-0394-06-I, which is incorporated by reference into Commissioner's Order Number 94-0512. The Commissioner of Insurance has jurisdiction over this matter pursuant to the Insurance Code, Articles 5.96, 5.98, and 5.01. Consistent with the Texas Insurance Code, Article 5.96(h), the Department will notify all insurers writing automobile insurance of this adoption by letter summarizing the Commissioner's action. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative Procedure Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on May 13, 1994. TRD-9440901 D. J. Powers Legal Counsel to the Commissioner Texas Department of Insurance Effective date: June 4, 1994 For further information, please call: (512) 463-6328 The Commissioner of Insurance at a public meeting held at 9:00 a.m., May 2, 1994, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street in Austin, adopted a staff proposal of a new amendatory endorsement (Number FRO-530) to the Farm and Ranch Owner's Policy and a new amendatory endorsement (Number HO-230) to the Homeowner's Policy when the Farmer's Comprehensive Liability Endorsement Number HO-210 is attached to the Homeowner's Policy. The purpose of the two endorsements is to provide liability coverage for bodily injury and property damage arising out of the rental or holding for rental of any part of any premises by an insured if an insured location is shown on the declaration as farm premises rented to others. Notice of the proposed endorsements (Reference Number P-0394-07-I) was published in the March 15, 1994, issue of the Texas Register (19 TexReg 1860). The Commissioner has determined that these endorsements are necessary because the exception for an insured location shown on the declaration as farm premises rented to others to the exclusion of liability coverage for bodily injury and property arising out of the rental or holding for rental of any part of any premises by an insured was inadvertently omitted from the Farm and Ranch Owner's Policy and the Farmer's Comprehensive Liability Endorsement Number HO-210 when these forms were rewritten and adopted by the State Board of Insurance in 1992. Prior to the 1992 rewrite and adoption, the original exclusions contained in the Farm and Ranch Owner's Policy and the Farmer's Comprehensive Liability Endorsement Number HO-210 excluded coverage for bodily injury or property damage arising out of the rental or holding for rental of any part of any premises by an insured, with certain exceptions to the exclusion, including if an insured location is shown on the declaration as farm premises rented to others. The two proposed amendatory endorsements restore the inadvertently omitted exceptions to the exclusions. The Commissioner has jurisdiction of this matter pursuant to the Insurance Code, Articles 5.35, 5.98, and 5.96. The two endorsements are on file in the Office of Legal Counsel to the Commissioner under Reference Number P-0394-07-I and are incorporated by reference by Commissioner Order Number 94-0511. Consistent with the Insurance Code, Article 5.96(h), prior to June 4, 1994, the effective date of this action, the Texas Department of Insurance will notify all insurers affected by this action. This agency hereby certifies that the adopted endorsements have been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. IT IS THEREFORE THE ORDER of the Commissioner of Insurance of the Texas Department of Insurance that Endorsement Number FRO-530 to the Farm and Ranch Owners Policy and Endorsement Number HO-230 to the Homeowner's Policy when the Farmer's Comprehensive Liability Endorsement Number HO-210 is attached to the Homeowner's Policy, relating to the provision of liability coverage for bodily injury and property damage arising out of the rental or holding for rental of any part of any premises by an insured if an insured location is shown on the declaration as farm premises rented to others, are adopted to be effective for all applicable policies issued on and after June 4, 1994. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts action taken under this article from the requirements of the Administrative Procedure Act (73rd Legislature, Regular Session, Chapter 268, sec.1, 1993 Texas General Laws 737 (codified at Texas Government, Code Title 10, Chapter 2001)). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on May 13, 1994. TRD-9440902 D. J. Powers Legal Counsel to the Commissioner Texas Department of Insurance Effective date: June 4, 1994 For further information, please call: (512) 463-6328