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 4. AGRICULTURE Part V. State Seed and Plant Board Chapter 82. Administrative Procedures Subchapter A. Procedures for Meeting by Telephone Conference Call 4 TAC sec.sec.82.1-82.5 The State Seed and Plant Board (the board) adopts new sec. sec.82.1-82.5, concerning telephone conference calls, without changes to the proposed text as published in the May 10, 1994, issue of the Texas Register (19 TexReg 3537). The new sections are adopted in order to provide procedures to implement Texas Agriculture Code, sec.62.0021 (Vernon Supplement 1994), which was enacted during the 73rd Legislative Session (1993). The new sections as adopted provide for the board to conduct telephone conference calls for meetings requiring immediate action when it is otherwise difficult or impossible to convene a quorum and provide procedures to ensure compliance with the Texas Open Meetings Act. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Agriculture Code, sec.62.0021, which provides the State Seed and Plant Board with the authority to conduct meetings by telephone conference call; and Texas Government Code, sec.2001.004 (Vernon Supplement 1994), which authorizes agencies to adopt rules of practice and procedures. 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 June 27, 1994. TRD-9443076 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: July 18, 1994 Proposal publication date: May 10, 1994 For further information, please call: (512) 463-7583 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 15. Alternative Fuels Research and Education Division 16 TAC sec.15.30 The Railroad Commission of Texas adopts new sec.15.30, relating to the propane alternative fuels advisory committee, with changes to the proposed text published in the February 8, 1994, issue of the Texas Register (19 TexReg 857). The new section creates the propane alternative fuels advisory committee of the commission; establishes its duration; sets forth the purpose and duties of the committee; prescribes the composition of the committee, the nomination the membership terms of the committee; and sets forth the mechanisms by which the committee meets, performs its work, and is evaluated. The commission adopts the new section in response to Senate Bill 383, 73rd legislature, 1993, which requires that state agency advisory committees be established by rule and conform to specific requirements set forth in the Act. The adopted rule governs the operations of the Propane Alternative Fuels Advisory Committee, which the commission initially established without formal rulemaking in March of 1992. New sec.15.30 establishes the committee effective September 1, 1994, and abolishes it on September 1, 1998, unless the commission amends the rule to establish a different date. Comments opposing the proposed section were submitted by the Texas Chemical Council. Comments generally in favor of the section were submitted by the Texas Propane Gas Association. Public Citizen of Texas submitted comments suggesting changes in the proposed rule. Public Citizen of Texas and the Texas Chemical Council both requested a public hearing. The commission gave notice of a public hearing on the proposed rule individually to Public Citizen of Texas and the Texas Chemical Council and to the general public by notice published in the April 19, 1994, issue of the Texas Register (19 TexReg 3020). The commission held the public hearing on the proposed rule on April 28, 1994, in room 10-117 of the William B. Travis Building in Austin. Six persons submitted oral or written comments at the hearing. With regard to proposed sec.15.30(d), the Texas Chemical Council stated that the general public and other users of propane were not represented on the committee, and proposed changing the committee's makeup to include four members from each of the following groups: "industry representatives," "industrial propane user representatives," "consumer representatives," and "representatives of the general public." The commission does not agree that the general public is not represented on the committee. Senate Bill 383 clearly intends for representation of the public interest to be achieved through "balanced representation" of consumer and industry members on state agency advisory committees. The Act requires balanced representation between industries or occupations regulated or directly affected by the advised state agency and consumers of services provided either by the advised state agency or by industries or occupations regulated by the agency. The commission believes its definition of "consumer representative" as an end- user of odorized propane fuel for residential, commercial, automotive, agricultural, industrial or other purposes is sufficiently inclusive to ensure compliance with the Act. The commission does not agree that the committee should include industrial propane user representatives, e.g., chemical companies or others who use unodorized propane as a raw material in manufacturing processes. Texas Natural Resources Code, Chapter 113, Subchapter I, authorizes the commission to establish the committee and to regulate the odorized propane industry by collecting from it fees to pay for propane research, education and marketing programs. Other industries, including chemical manufacturers and other nonfuel users of unodorized propane, pay no fees and are therefore not regulated by the commission under Texas Natural Resources Code, Chapter 113, Subchapter I. Accordingly, these industries are not required to be represented on the committee. Dow Chemical Company opposed the state's legislated alternative fuels mandates and incentives, as well as the programs that seek to increase demand for propane. The company also requested that the chemical industry be represented on the committee. The commission disagrees with this comment and request for the same reasons given in response to the Texas Chemical Council's comments. Public Citizen of Texas suggested broadening the definition of "consumer representative" to include potential as well as actual consumers; designating that one consumer representative be an environmentalist and one industry representative be a specialist in end-user efficiencies; clarifying that the president of the Texas Propane Gas Association is an industry member and whether he or she is a voting member; changing the due date for nominations to 30 days after final adoption of the rules, at least for the first year; and requiring the committee to recommend to the commission rules prohibiting or limiting propane resellers' ability to pass loading-rack fees through to their customers. Public Citizen's oral comments at the public hearing included an additional request that the commission explain why the committee's work concerns only propane and not other alternative fuels. The commission does not adopt Public Citizen's first suggestion because the commission interprets Senate Bill 383 as requiring that consumer members be actual consumers, not potential consumers. Regarding Public Citizen's second comment, the commission has no objection to environmentalists' or energy efficiency experts' serving on the committee, and in fact has appointed persons affiliated with environmental, health, consumer and energy-research organizations to be members of the informal committee since its inception in March 1992. However, the commission believes that environmental and efficiency interests can continue to be represented on the advisory committee without further narrowing of the membership requirements set out in Senate Bill 383. The commission agrees with Public Citizen's third comment, and has amended sec.15.30(d) to clarify that the TPGA president serves ex officio as a voting industry member of the committee during his or her tenure as president. Also, the commission agrees with Public Citizen's fourth suggestion, and has amended sec.15.30(b) and sec.15.30(e) so that the nomination the adoption date of this rule. The commission disagrees with Public Citizen's fifth suggestion because the commission believes such a charge to the committee would be inappropriate in view of the commission's lack of statutory authority to regulate feepayers' ability to pass through or absorb all or part of loading-rack fees paid. In response to Public Citizen's oral request, the commission responds that the committee advises the commission on propane and not on other alternative fuels because of the "no pay, no play" provision in Texas Natural Resources Code, sec.113.243(c). The commission may use money in the Alternative Fuels Research and Education Fund only for activities relating to the specific fuel from which the fee was derived. Propane is the only fuel currently contributing fees to the fund; therefore, the commission's alternative fuels activities and its need for advice on those activities relate only to propane. The Texas Propane Gas Association suggested expanding the committee to 25 members. The commission believes 17 members is a more workable number and notes that sec.2(a) of Senate Bill 383 caps state agency advisory committees at 24 members. The new section is adopted under Texas Natural Resources Code, sec.113.241, which authorizes the commission to adopt all necessary rules relating to conducting research and educating the public regarding the use of propane; and Texas Natural Resources Code, sec.113.242, which authorizes the commission to appoint one or more advisory committees composed of members representing the propane industry, consumers, and other interests to consult with and advise the commission on opportunities and methods to expend the use of propane. sec.15.30. Propane Alternative Fuels Advisory Committee. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Commission-The Railroad Commission of Texas. (2) Committee-The Propane Alternative Fuels Advisory Committee of the Railroad Commission of Texas. (3) Consumer representative-A member of the committee who is not engaged in the business of producing, distributing or retailing propane and who is not engaged in the business of designing, manufacturing, distributing or retailing propane equipment or performing propane-related research services or other services, but who is an end-user of odorized propane fuel, including but not limited to a consumer of odorized propane as a residential or commercial heating or water-heating fuel, as an automotive or other transportation fuel, or as an agricultural or industrial fuel. (4) Division-The Alternative Fuels Research and Education Division of the Railroad Commission of Texas. (5) Fiscal year-September 1 of a year through August 31 of the following year. (6) Industry representative-A member of the committee who is engaged in the business of producing, distributing or retailing propane or who is engaged in the business of designing, manufacturing, distributing or retailing propane equipment or performing propane-related research or other services. (7) Member-An industry representative, a consumer representative, or the president of the Texas Propane Gas Association, who serves on the Propane Alternative Fuels Advisory Committee of the Railroad Commission of Texas. (8) Presiding officer-The chairman of the Propane Alternative Fuels Advisory Committee of the Railroad Commission of Texas. (9) Propane-Liquefied petroleum gas (LPG), as that term is defined in Texas Natural Resources Code, Chapter 113. (10) Subcommittee-A panel of no fewer than five members of the committee assigned to handle issues relating to research, marketing, or public education. (b) Establishment; duration. Effective September 1, 1994, the committee is hereby established. The committee is abolished on September 1, 1998, unless the commission amends this subsection to establish a different date. (c) Purpose and duties. The purpose of the committee is to give the commission the benefit of the members' collective business, environmental, and technical expertise and experience to help the commission increase the use of propane, improve air quality, and develop the economy of this state. The committee's sole duty is to advise the commission. The committee has no executive or administrative powers or duties with respect to the operation of the division. All such powers and duties rest solely with the commission. (d) Composition of committee; membership terms. The committee shall be composed of 17 voting members, which shall include eight industry representatives, eight consumer representatives, and the president of the Texas Propane Gas Association (TPGA) as an ex officio industry member, all of whom serve at the pleasure of the commission. The membership terms of the 16 industry and consumer representatives shall be overlapping, two-year terms. The membership term of the TPGA president shall coincide with his or her service as president of TPGA. (e) Nominations for committee membership. Any person may nominate a candidate or candidates for membership on the committee. Nominations must be in writing and may be submitted by August 1 of each year to the commission, a commissioner, or the director of the division for transmission to the commission. (f) Appointment of members. All 17 members of the committee are appointed by and serve at the pleasure of the commission. The commission shall appoint eight new members by September 1 each year, such that the composition of the committee meets the requirements of subsection (d) of this section. If a member resigns or otherwise vacates his or her position prior to the end of his or her two-year term, the commission shall appoint a replacement who shall serve the remainder of the unexpired term. (g) Reimbursement of members' expenses. The commission shall not reimburse members for travel or other expenses related to service on the committee. (h) Presiding officer; other officers. The committee shall elect from its members a presiding officer who shall report the committee's advice and attendance in writing to the commission. The committee may elect other officers at its pleasure. (i) Subcommittees. The committee shall be organized into three subcommittees of no fewer than five members each for research, marketing, and public education. One member of each subcommittee shall serve as the chair of that subcommittee. The subcommittee chairs shall make written reports regarding their subcommittee's work to the presiding officer. (j) Meetings. The committee shall meet at the call of the presiding officer or the commission. Committee and subcommittee meetings are open to the public. (k) Committee records. The division staff shall record and maintain the originals of the minutes of each committee and subcommittee meeting. The division shall maintain a record of actions taken by the committee and shall distribute copies of approved minutes and other committee documents to the commission and the committee members. (l) Evaluation of committee costs and benefits. By October 1 of each year, the division director shall evaluate for the previous fiscal year and report to the commission: (1) the committee's work; (2) the committee's usefulness; and (3) the costs related to the committee's existence, including the cost of commission staff time spent in support of the committee's activities. (m) Report to Legislative Budget Board. The commission shall biennially report to the Legislative Budget Board the information developed under subsection (l) of this section in evaluating the committee's costs and benefits. 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 June 27, 1994. TRD-9443100 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1994 Proposal publication date: February 8, 1994 For further information, please call: (512) 463-7291 TITLE 22. EXAMINING BOARDS Part VI. Texas State Board of Registration for Professional Engineers Chapter 131. Practice and Procedure Application for Registration 22 TAC sec.131.54 The Texas State Board of Registration for Professional Engineers adopts an amendment to sec.131.54, concerning general application information, with changes to the proposed text as published in the May 13, 1994, issue of the Texas Register (19 TexReg 3620). Subsection (e) is adopted without the proposed change to the last sentence. The section clarifies which supplemental documents must be submitted with an application for registration and also provides for the acceptance of an incomplete application pending receipt of documents from third-party sources over which the applicant has no control. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. sec.131.54. General Application Information. (a)-(c) (No change.) (d) Certain items must be submitted for an application to be considered complete. The executive director may accept an incomplete application pending receipt of documents from third-party sources over which the applicant has no control. Such documents may include transcripts and verifications from other states. Reference statements must be included with the application. For an application to be considered complete, it must include the following: (1)-(2) (No change.) (3) official transcript(s) of degree(s) in accordance with sec.131.93 of this title (relating to Transcripts); (4) (No change.) (5) official documentation from the appropriate examining board verifying that the applicant has passed the fundamentals of engineering examinations; (6)-(7) (No change.) (e) The board may request additional information or the executive director may recommend the applicant provide additional information. If an applicant declines to provide additional information for an accepted application as recommended by the executive director, the application will be referred for board consideration with documentation of such declination. If, after notification in writing, the applicant fails to provide any part of the required information for a complete application within the time specified by the executive director, the application will be referred to the board to be not approved as an incomplete application. Withholding information, misrepresentation, or untrue statements on the application for registration or supplemental experience documents will be cause for rejection of the application. (f)-(g) (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 June 27, 1994. TRD-9443068 Charles E. Nemir, P.E. Executive Director Texas State Board of Registration for Professional Engineers Effective date: July 18, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 440-7723 Engineering Experience 22 TAC sec.131.81 The Texas State Board of Registration for Professional Engineers adopts an amendment to sec.131.81, concerning experience evaluation, without changes to the proposed text as published in the May 13, 1994, issue of the Texas Register (19 TexReg 3621). The section as amended eliminates erroneous language. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1994. TRD-9443069 Charles E. Nemir, P.E. Executive Director Texas State Board of Registration for Professional Engineers Effective date: July 18, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 440-7723 Education 22 TAC sec.131.91 The Texas State Board of Registration for Professional Engineers adopts an amendment to sec.131.91, concerning educational requirements for registration, without changes to the proposed text as published in the May 6, 1994, issue of the Texas Register (19 TexReg 3414). The section clarifies that a bachelor's degree in an engineering technology curriculum will be required for registration as a professional engineer. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1994. TRD-9443070 Charles E. Nemir, P.E. Executive Director Texas State Board of Registration for Professional Engineers Effective date: July 18, 1994 Proposal publication date: May 6, 1994 For further information, please call: (512) 440-7723 22 TAC sec.131.93 The Texas State Board of Registration for Professional Engineers adopts an amendment to sec.131.93, concerning transcripts, without changes to the proposed text as published in the May 13, 1994, issue of the Texas Register (19 TexReg 3621). The section specifies that a transcript must be provided to the board from each school from which an engineering degree or 15 or more semester hours of credit in engineering science or mathematics are claimed on an application for registration. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1994. TRD-9443071 Charles E. Nemir, P.E. Executive Director Texas State Board of Registration for Professional Engineers Effective date: July 18, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 440-7723 Board Review of Application 22 TAC sec.131.112 The Texas State Board of Registration for Professional Engineers adopts an amendment to sec.131.112, concerning approved applications, without changes to the proposed text as published in the May 13, 1994, issue of the Texas Register (19 TexReg 3622). The section as amended includes the Texas Engineering Practice Act, sec.21 under which an application for registration will be reviewed. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1994. TRD-9443072 Charles E. Nemir, P.E. Executive Director Texas State Board of Registration for Professional Engineers Effective date: July 18, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 440-7723 Registration 22 TAC sec.131.138 The Texas State Board of Registration for Professional Engineers adopts an amendment to sec.131.138, concerning engineers' seals, without changes to the proposed text as published in the May 10, 1994, issue of the Texas Register (19 TexReg 3538). The section as amended permits the use of a reduced size computer-aided design/drafting seal (CADDSEAL), as long as the engineer's name and registration number is clearly legible on all copies and also requires that the initial sheet, title sheet, or table of contents of a bound volume of engineering drawings shall contain the seal conforming to the standard sizes stipulated in the section. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1994. TRD-9443073 Charles E. Nemir, P.E. Executive Director Texas State Board of Registration for Professional Engineers Effective date: July 18, 1994 Proposal publication date: May 10, 1994 For further information, please call: (512) 440-7723 Professional Conduct and Ethics 22 TAC sec.131.156 The Texas State Board of Registration for Professional Engineers adopts an amendment to sec.131.156, concerning responsibility to the engineering profession, without changes to the proposed text as published in the May 6, 1994, issue of the Texas Register (19 TexReg 3414). The section clarifies the professional engineer's responsibility to reveal circumstances that create public safety endangerment. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1994. TRD-9443074 Charles E. Nemir, P.E. Executive Director Texas State Board of Registration for Professional Engineers Effective date: July 18, 1994 Proposal publication date: May 6, 1994 For further information, please call: (512) 440-7723 Complaints 22 TAC sec.131.171 The Texas State Board of Registration for Professional Engineers adopts an amendment to sec.131.171, concerning complaints, without changes to the proposed text as published in the May 10, 1994, issue of the Texas Register (19 TexReg 3538). The section as amended clarifies that the executive director has the authority to determine the completeness of a complaint and also to dismiss the allegation if probable cause cannot be established. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1994. TRD-9443075 Charles E. Nemir, P.E. Executive Director Texas State Board of Registration for Professional Engineers Effective date: July 18, 1994 Proposal publication date: May 10, 1994 For further information, please call: (512) 440-7723 Part XIV. Texas Optometry Board Chapter 275. Continuing Education 22 TAC sec.275.1 The Texas Optometry Board adopts an amendment to sec.275.1, concerning Continuing Education without changes to the proposed text as published in the April 26, 1994, issue of the Texas Register (19 TexReg 3129). Section 275.1 is necessary to offer an alternative for continuing education to an individual with a serious or disabling illness or physical disability in lieu of claiming an exemption from continuing education. The rule will allow the individual to obtain the required number of continuing education hours by correspondence or multimedia courses. No comments were received regarding adoption of the rule. The amendment is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.2.14, which provide the Texas Optometry Board with the authority to promulgate procedural and substantive rules. 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 June 27, 1994. TRD-9443109 Lois Ewald Executive Director Texas Optometry Board Effective date: August 9, 1994 Proposal publication date: April 26, 1994 For further information, please call: (512) 835-1938 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 1. Texas Board of Health Clinical Health Services 25 TAC sec.1.91 The Texas Department of Health (department) adopts an amendment to sec.1. 91, without changes to the proposed text as published in the April 22, 1994, issue of the Texas Register (19 TexReg 3331) and will not be republished. The amendment concerns fees for clinical health services provided at public health clinics. Section 1.91(b) provides that the department shall base the calculation of fees in the schedule of fees upon the current federal poverty income guidelines. The amendments implement changes in poverty income levels at which clients will be charged fees depending on family size and income. The amendment adds that Medicaid eligible clients or recipients are not subject to the fee schedule, and lists two additional conditions under which patients or clients whose incomes exceed 200% of the poverty level may continue to receive services at public health clinics. An adjusted guideline for income and a schedule of charges will be published in the Texas Register upon approval and by order of the commissioner of health. The amendment is adopted for the following reasons. The Omnibus Budget Reconciliation Act of 1981 requires all states to charge fees for clinical services based on the federal poverty income guidelines. Under authority of 42 U.S.C.A., sec.9902(2), poverty income guidelines shall be revised annually. The most recent revisions of the guidelines became effective upon their publication in the Federal Register on February 10, 1994. No comments were received regarding adoption of the rule. The amendment is adopted under Texas Health and Safety Code, sec.12.001, which provides the board with the authority to implement by rule each duty imposed by law upon the board, the department, or the commissioner; and sec.12. 032, which authorizes the board to charge fees for public health services. Under this authority, the board has adopted a schedule of fees in sec.1.91. 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 authority. Issued in Austin, Texas, on June 27, 1994. TRD-9443120 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Effective date: July 19, 1994 Proposal publication date: May 3, 1994 For further information, please call: (512) 458-7773 Standards for Conduct Governing the Relationship Between the Texas Department of Health and Private Donors and Private Organizations 25 TAC sec.sec.1.221-1.227 The Texas Department of Health (department) adopts new sec.sec.1.221-1.227. Section 1.222 and sec.1.224 are adopted with changes to the proposed text as published in the May 3, 1994, issue of the Texas Register (19 TexReg 3332). Sections 1.221, 1.223, and 1.225-1.227 are adopted without changes and will not be republished. The purpose of the new sections will be to establish the criteria, procedures, and standards of conduct to implement the provisions of the Health and Safety Code, sec.12.011, concerning the acceptance by the department of donations and contributions to be spent for public health purposes, and the provisions of the Government Code, sec.2255.001, concerning the relationship between the department and private donors and private organizations. The new sections cover purpose; definitions; donations by private donors to the department; donations by private donors to private organizations which exist for the department's benefit; organizing a private organization which exists for the department's benefit; the relationship between a private organization and the department; standards of conduct between department employees and private donors; and miscellaneous provisions. No public comments were received regarding adoption of the new rules; however, department staff has clarified the term "private organization" in sec.1.222 and sec.1.224, and the term "private donor" in sec.1.222. The new rules are adopted under the Health and Safety Code, sec.12.011, which provides the department with authority to accept donations and contributions to be spent in the interest of public health; Health and Safety Code, sec.12.001, which provides the Texas Board of Health (board) with authority to adopt rules to implement every duty imposed by law on the board, the department and the commissioner of health; and the Government Code, sec.2255.001, which provides the department with authority to adopt rules governing the relationship between the department and private donors and private organizations which exist to further the department's duties and purposes. sec.1.222. Definitions. The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise. Commissioner-The commissioner of the Texas Department of Health. Department-The Texas Department of Health. Donation-A contribution of anything of value (financial or in-kind gifts such as goods or services) given to the department for public health purposes or to a private organization which exists to further the duties or functions of the department. The department may not accept donations of real property (real estate) without the express permission and authorization of the legislature. Employee-A regular, acting, exempt, full-time or part-time employee of the department. Private donor-One or more persons or private organizations which give a donation to the department for public health purposes or to a private organization which exists to further the duties and purposes of the department. sec.1.224. Donations by a Private Donor to a Private Organization which exists to Further the Purposes and Duties of the Texas Department of Health. (a) A private donor may make donations to a private organization which exists to further the purposes and duties of the Texas Department of Health (department). (b) The private organization shall administer and use the donation in accordance with the provisions in the memorandum of understanding between the private organization and the department, as described in sec.1.226(c) of this title (relating to Relationship Between a Private Organization and the Texas Department of Health). 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 authority. Issued in Austin, Texas, on June 27, 1994. TRD-9443124 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Effective date: July 19, 1994 Proposal publication date: May 3, 1994 For further information, please call: (512) 458-7236 Chapter 181. Vital Statistics Vital Records 25 TAC sec.181.27 The Texas Department of Health (department) adopts new sec.181.27, without changes to the proposed text as published in the May 3, 1994, issue of the Texas Register (19 TexReg 3334). The new section concerns a memorandum of understanding (MOU) between the department and the Texas Funeral Service Commission (TFSC) and will implement provisions of Senate Bill 284, 72nd Legislature, Regular Session, 1991, which requires the department and the TFSC to enter into a MOU to facilitate cooperation between the two agencies by describing the duties of each agency under authority of Health and Safety Code, Chapter 193 and Chapter 195, and Texas Civil Statutes, Article 4582b. The new section covers the joint procedures to be used by the two agencies for the referral, investigation and resolution of complaints affecting the administration and enforcement of state laws relating to vital statistics and the licensing of funeral directors and funeral establishments. No comments were received regarding adoption of the new section. The new section is adopted under the provisions of Senate Bill 284, 72nd Legislature, Regular Session, 1991, which provides the Board of Health (board) with the authority to adopt by rule a memorandum of understanding with the Texas Funeral Service Commission (TFSC); and the Health and Safety Code, and sec.12.001, which provides the board with the authority to adopt by rule each duty imposed by law on the board, the department and the Commissioner of Health. 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 authority. Issued in Austin, Texas, on June 27, 1994. TRD-9443123 Susan K. Steeg General Counsel, Office of the General Counsel Texas Department of Health Effective date: August 1, 1994 Proposal publication date: May 3, 1994 For further information, please call: (512) 458-7692 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 7. Corporate and Financial Subchapter A. Examination and Corporate Custodian and Tax 28 TAC sec.7.36 The Texas Department of Insurance adopts the repeal of sec.7.36 concerning the preparation and filing of a report of the audit of an insurer's workers' compensation reserves by all insurers which transact workers' compensation business in Texas. The repeal of this section will eliminate Form WCR-1. The repeal of sec.7.36 is simultaneous with the adoption of a new sec.7.36. The proposed repeal was published in the April 29, 1994, issue of the Texas Register (19 TexReg 3226). Section 7.36 implements Insurance Code, Article 5.61, which requires an audit of data relating to an insurer's Texas workers' compensation reserves. The repeal of this section is necessary to streamline reporting requirements for insurers which transact workers' compensation business in Texas and to enable the Texas Department of Insurance simultaneously to adopt a new sec.7.36, which replaces the repealed section with other provisions concerning preparation and filing of a report of the audit of an insurer's workers' compensation reserves. Notification of the new section which replaces this repealed section appears elsewhere in this issue of the Texas Register. The repeal of this section will eliminate Form WCR-1 and provide for a more efficient administration of Insurance Code, Article 5.61, with the adoption of the new sec.7.36. No comments were received regarding the repeal of this section. The repeal is adopted under the Insurance Code, Articles 5.61 and 1.03A. Article 5.61 requires each workers' compensation insurer transacting business in Texas to maintain reserves in an amount estimated to provide for the payment of all losses and to file a report with the Department showing its year-end loss, expense, and unearned premium reserves for workers' compensation insurance results in Texas and that the report must be audited by an independent certified public accountant. Article 1.03A authorizes the commissioner to adopt rules and regulations for the conduct and execution of the duties and functions of the department only as authorized by statute for general and uniform application. The Insurance Code, Article 5.61, is affected by this rule. 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 June 27, 1994. TRD-9443063 D. J. Powers Legal Counsel to Commissioner Texas Department of Insurance Effective date: July 18, 1994 Proposal publication date: April 29, 1994 For further information, please call: (512) 463-6327 The Texas Department of Insurance adopts new sec.7.36 concerning the preparation and filing of a report of the audit of an insurer's workers' compensation reserves by all insurers which transact workers' compensation business in Texas. The adoption of new sec.7.36 is simultaneous with the repeal of the existing sec.7.36. New sec.7.36 is adopted with changes to the proposed text as published in the April 29, 1994, issue of the Texas Register (19 TexReg 3227). Section 7.36 implements Insurance Code, Article 5.61, which requires an audit of data relating to an insurer's Texas workers' compensation reserves. The adoption includes several changes to the proposed text as published. Section 7.36(b)(1)-(4) are amended by adding a reference to the call report which contains the information specified in the paragraph. In sec.7.36(b)(3)-(4) , the reference to page 4 is changed to page 1 to correct an error. In sec.7. 36(c), paragraph (4) is deleted to avoid requiring the performance of an additional audit procedure and an additional audit report. The rule requires insurers, which have issued new or have renewal workers' compensation insurance policies in this state in the most recent calendar year, to have the data, specified in the proposed rule, audited. This is a reduction in the scope of the existing regulation, which required any insurer which had written workers' compensation insurance in the past five years to have this information audited. The section eliminates Form WCR-1 and streamlines reporting requirements of workers' compensation data submitted to the Texas Department of Insurance by consolidating some of the data in call reports and the data that was required under the repealed sec.7.36 A commenter expressed concern that the use of the word "review" in sec.7. 36(c)(4) could be construed as having the specific meaning given to it in the accounting profession and suggested its usage could make the rule confusing. The commenter also suggested the procedures to be performed by auditors be specified in the rule. The department acknowledges the confusion that could be caused and has deleted the entire paragraph. Section 7.36(c)(4) proposed an additional audit procedure that is not required by the existing rule. The Insurance Code, Article 5.61, requires any audit procedure to be performed in accordance with generally accepted auditing standards. The department did not intend to create a new audit report by requiring a review of the Reconciliation Report for Compensation Experience. Such a report would be required if the Reconciliation Report were audited in accordance with generally accepted auditing standards, therefore the department deletes the entire paragraph to avoid increasing the costs of the audit required by Insurance Code, Article 5.61. A commenter also suggested the filing deadline for the reports required by this section be established at a date later than June 30th for this year since the rule is being adopted after the due date. The due date of the report is established by Insurance Code, Article 5.61, and cannot be waived or extended by regulation. A commenter pointed out the reference to page numbers in the call reports was wrong. The department has corrected the page number in the adopted rule. The department also amends sec.7.36(b)(1)-(4) for clarity by adding the name of the call reports to the reference of the data. A commenter recommended an exemption for insurers that do not meet certain minimum standards since the costs of the audit are burdensome and the data from such insurers immaterial in the statistical process. The Insurance Code, Article 5.61, requires each workers' compensation insurer to provide a report on its workers' compensation reserves. The statute does not authorize the commissioner to exempt any class of workers' compensation insurer. A comment was received from the American Institute of Certified Public Accountants, Insurance Companies Committee. The new rule is adopted by the Commissioner of Insurance under the authority of the Insurance Code, Articles 5.61, 5.62, and 1.03A. Article 5.61 requires each workers' compensation insurer transacting business in Texas to maintain reserves in an amount estimated to provide for the payment of all losses and to file a report with the Department showing its year-end loss, expense, and unearned premium reserves for workers' compensation insurance results in Texas and that the report must be audited by an independent certified public accountant in accordance with generally accepted auditing standards and the rules of the department. Article 5.62 authorizes the commissioner to make and enforce rules necessary to carry out the provisions of the Insurance Code, Chapter 5, Subchapter D, concerning the regulation of workers' compensation insurance. Article 1.03A authorizes the commissioner to adopt rules for the conduct and execution of the duties and functions of the department only as authorized by statute for general and uniform application. sec.7.36. Report on Audit of Workers' Compensation Reserves. (a) Applicability. This section applies to all insurers which are authorized to write and which have issued new or renewal workers' compensation insurance policies in this state in the most recent calendar year. (b) Scope of Audit. The workers' compensation data which is to be audited is contained in Texas Workers' Compensation Financial Call Plan, Calls 5, 5(supplement), 5A, 5A(supplement), required by the department. The data to be audited in these forms shall be audited by the same accountant that performs the annual audit of the insurer under the Insurance Code, Article 1. 15A, if such an audit is performed, and such data is described in paragraphs (1)-(4) of this subsection as follows: (1) from Calls 5 and 5A, page 2, column 11, Accident Year Outstanding Losses Excluding IBNR-Indemnity-Case and Bulk-last five accident years only; (2) from Calls 5 and 5A, page 2, column 12, Accident Year Outstanding Losses Excluding IBNR-Medical-Case and Bulk-last five accident years only; (3) from Calls 5(supplement) and 5A(supplement), page 1, column 19, Accident Year Unearned Premium-last accident year only; and (4) from Calls 5(supplement) and 5A(supplement), page 1, column 21, Accident Year Allocated Loss Adjustment Expense Outstanding-last five accident years only. (c) Audit Coverage. The report of the audit of the workers' compensation reserves described in subsection (b) of this section shall address the items described in paragraphs (1)-(3) of this subsection: (1) the opinion of the accountant, which should address the validity of data reported and not the adequacy of reserves; (2) a statement of the amount of Texas workers' compensation reserves as prescribed by subsection (b)(1)-(4) of this section; (3) any notes to the statement required in paragraph (2) of this subsection. (d) Filing Requirements for Audit Reports of Workers' Compensation Data. The audit report required by this section shall be filed with the Financial Program, 333 Guadalupe, Mail Code 303-1A, P.O. Box 149099, Austin, Texas 78714-9099, on or before June 30 of the year following the year audited. If the insurer is required to file an annual audit report under Insurance Code, Article 1.15A, then the audit report required under this section shall be filed as a supplement to the annual audit report. 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 June 27, 1994. TRD-9443062 D. J. Powers Legal Counsel to Commissioner Texas Department of Insurance Effective date: July 18, 1994 Proposal publication date: April 29, 1994 For further information, please call: (512) 463-6327 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part VI. Texas Department of Criminal Justice Chapter 152. General Allocation Provisions Subchapter C. Maximum System Capacity of the Institutional Division 37 TAC sec.152.12 The Texas Department of Criminal Justice adopts an amendment to sec.152.12, with changes to the proposed text as published in the January 28, 1994, issue of the Texas Register (19 TexReg 585). The new subsection is adopted to comply with the orderly process under state law for increasing capacity of prison units or of the system as a whole. This process requires multiple levels of review and recommendation to ensure that an increase will still allow the staff to provide inmates with an enumerated list of services, functions, and staffing. The adopted version of the subsection is changed in response to the comment from Eric Drummond, who suggested that the proposed language limiting the paragraph's applicability to a fixed number of beds was too restrictive. The new wording also acknowledges the nine units listed in the Final Judgment where population cannot be increased by additions or renovations. In addition, the subchapter and rule titles were changed to clarify that both unit and system capacity are governed by the subchapter and sec.152.12 in particular. The staff of the institutional division finds and recommends that the additions to capacity at the units set out as follows may be made without limiting the ability of the division to operate the affected units with the additional capacity and provide for the matters listed in the Government Code, sec.499.102(a). Pursuant to the Government Code, sec.499.104, these staff findings have been independently reviewed and concurred in by the following officials: James A. Collins, Executive Director, Texas Department of Criminal Justice; Wayne Scott, Director, Institutional Division/Acting Director for Operations, Institutional Division; William C. McCray, Deputy Director for Administration, Texas Department of Criminal Justice; Carl Jeffries, Deputy Director for Program Services, Texas Department of Criminal Justice; James E. Riley, Deputy Director for Health Services, Institutional Division; and Charles Smith, Assistant Director for Classification and Treatment, Institutional Division. Pursuant to the Texas Government Code sec.499.102(b), these staff findings have also been forwarded to the Legislative Budget Board for an estimate of the initial cost of implementing the increase and the increase in operating costs for the units for the five years immediately following the increase in capacity. The LBB's response is as follows: [graphic] Pursuant to the Government Code, sec.sec.499.105-499.107, these staff findings have also been reviewed and concurred in by the Texas Board of Criminal Justice, Governor Ann Richards, and Attorney General Dan Morales. The effect of the amendment is to allow the Institutional Division to increase unit capacities at numerous prison units by constructing permanent additions to the units as set out in Section XIII.D.5. of the Final Judgment. Section XIII.D.5. is referenced in the existing rule, sec.152.12(b), but that reference would only allow increases in the population at the units listed in the subsection. The proposed amendment will allow increases primarily at newer, "prototype" facilities, in compliance with Chapter 499, Subchapter E, Government Code, and to the extent permitted by the Final Judgment, by adding a new subsection (h) to sec.152.12. The Board of Criminal Justice has delegated to Andy Collins, TDCJ Executive Director, the authority to finally establish the maximum capacities of the affected facilities. By formal notification to the Board, signed contemporaneously with the publication of this final adoption, those capacities are established as follows: [graphic] Inmate comments were solicited and received as directed by the Government Code, sec.499.103, and are summarized as follows: two inmates in the Daniels unit commented, one suggesting more paroles to save money and the other alleging inadequate space for several services; four inmates in the Michael unit commented, with one concerned about space for crafts, one concerned that the absence of certain buildings on the expansion blueprints violates the Final Judgment, one generalizing that expansion would impede safe and daily access to all facilities, and one requesting additional information on showers and recreational facilities; one inmate in the Terrell unit commented, requesting a transfer; one inmate in the Hughes unit commented that the plans do not provide for additional support facilities; one inmate in the Coffield unit had no meaningful comment; one inmate in the Boyd unit alleged inadequate space for all support facilities; two inmates from the Robertson unit commented, with one concerned over inadequate education and library privileges, and the other alleging inadequate storage and stock in the commissary; thirty-three inmates in the Hobby unit commented, most utilizing a form letter to allege inadequate services and space in many areas; one inmate in the McConnell unit commented on inadequacies in commissary storage, sewage, nutrition, emergency water supply, sanitizing, and the law library, and forwarded his letter to the U.S. District Court in the Southern District of Texas; and one inmate in the Clements unit commented on inadequate recreation time, dining time, and staff, and alleged a negative impact on mentally retarded and psychiatric inmates. In addition, one inmate in the Clements unit successfully sought intervention from the U.S. District Court in the Southern District of Texas, but did not provide a comment letter under this process. Finally, a non-inmate comment was received to the effect that the amendment as proposed was "far too restrictive" in its wording. The following inmates made comments: R. Kuykendall, R. Stephens, F. Durrough, T. Irby, K. Watson, R. Greenman, A. Sasser, C. French, D. Morris, W. Montgomery, P. Smith, E. Davis, J. Logan, D. Tharp, T. Stibbens, H. Ortega, L. Beasley, K. Scott, T. Harris, A Shaw, C. Reese, F. Keller, Y. Jackson, A. Miles, J. Hoffman, E. Wilson, C. Hampton, K. Freeman, B. Andrews, C. Ogier, B. Lopez, T. Batiste, P. Ware, L. Barnes, W. Gonzales, L. Sheperd, J. Ridley, C. White, A. Gelabert, L. Royal, J. Balawadjer, M. Doyou, D. Jones, S. Tucker, T. Franks, C. Roddy, T. Hazel. The following non-inmate made a comment: Eric H. Drummond. The board disagrees with the comments of inmates due to the persuasive detail provided by the staff of the agency regarding the ability of the institutional division to operate the affected units with the additional capacity and provide for the matters listed in the Government Code, sec.499. 102(a). The board agrees with the comment that the wording of the original proposal was too restrictive, and the adopted version reflects this change. The new subsection is adopted under Chapter 499, Subchapter E, Government Code, and is further authorized by the Final Judgment in Ruiz v. Collins CN. H-78-987 (Southern District of Texas, Houston Division), which appeared in Volume 17, Texas Register, page 8269 (November 27, 1992). The authority of the Board of Criminal Justice to adopt rules generally is found in the Government Code, sec.492.013. sec.152.12. Methodology for Changing the Maximum Unit and System Population. (a)-(g) (No change.) (h) Increases in the population of units under construction and existing units, including those listed in subsection (b) of this section, may be accomplished in conformity with Section XIII.D.5. of the Final Judgment, and in compliance with the review and recommendation process in the Government Code, sec.sec.499.102 et seq. Increases in population may not be accomplished through additions or renovations to the units listed in Section XIII.D.5. of the Final Judgment. 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 June 23, 1994. TRD-9443082 Carl Reynolds General Counsel Texas Board of Criminal Justice Effective date: July 18, 1994 Proposal publication date: January 28, 1994 For further information, please call: (512) 463-9693 Part XI. Texas Juvenile Probation Commission Chapter 341. Memorandum of Understanding for Abused and Neglected Children 37 TAC sec.341.22 The Texas Juvenile Probation Commission adopts new sec.341.22, concerning memorandum of understanding, without changes to the proposed text as published in the February 25, 1994, issue of the Texas Register (19 TexReg 1371). The new section enhances coordination of service delivery at the local level. The new section will enhance service delivery to mutual clients of DPRS, TJPC, and TYC. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Human Resource Code, sec.sec.141.001, 141.041, and 141.042, which provides the Texas Juvenile Probation Commission with the authority to improve the effectiveness of juvenile probation services by enhancing coordination service delivery at the local level. 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 June 22, 1994. TRD-9443137 Bernard Licarione, Ph.D. Executive Director Texas Juvenile Probation Commission Effective date: July 19, 1994 Proposal publication date: February 25, 1994 For further information, please call: (512) 443-2001 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 27. Intermediate Care Facilities for the Mentally Retarded (ICFs-MR) Subchapter E. Eligibility and Review 40 TAC sec.sec.27.503, 27.505, 27.507, 27.509, 27.511, 27.513, 27. 515 The Texas Department of Human Services (DHS) adopts amendments to sec.sec.27. 503, 27.505, 27.507, 27.509, 27.511, 27.513, and 27.515, concerning definitions for level-of-care criteria, eligibility for level-of-care assignment, level-of- care determination, ICF-MR I level-of-care criteria, ICF-MR V level-of-care criteria, ICF-MR VI level-of-care criteria, and ICF-MR/RC VIII level-of-care criteria, in its Intermediate Care Facilities for the Mentally Retarded (ICFs- MR) rule chapter. The amendment to sec.27.507 is adopted with changes to the proposed text as published in the May 13, 1994, issue of the Texas Register (19 TexReg 3643). The amendments to sec. sec.27. 503, 27.505, 27.509, 27.511, 27.513, and 27.515 are adopted without changes to the proposed text, and will not be republished. The justification for the amendments is to add Americans with Disabilities Act requirements, level-of-care assignments according to special needs, and Adaptive Behavioral Level changes to reflect the American Association on Mental Deficiency definitions. The amendments will function by adding to the ICF-MR rules requirements of the Americans with Disabilities Act. During the public comment period, DHS received comments from New Avenues of Hope, Inc. Following is a summary of the comments and DHS's responses. Comment: The commenter observed that the proposal to amend sec.27.503 did not include the definitions of several terms. Response: The definitions cited by the commenter have not been deleted from the rule. The format for amendments to rules consisting of definitions requires agencies only to include the text of repealed and amended definitions. Comment: The commenter identified several brackets indicating deletions in the proposal to amend sec.27.507(g) that were confusing. Response: DHS is adopting sec.27.507(g) with changes that clarify the language to be retained and deleted. Comment: The commenter asked whether sec.27.507(i) addresses individuals who meet more than one level of care or individuals who are excluded from any level of care because of one criteria. Response: DHS is addressing individuals who do not meet all the criteria for one level of care. When this occurs, DHS may ask for additional information. DHS is adopting sec.27.507(i) with changes that substitute DHS for references to the Texas Department of Health (TDH). The activities are now conducted by DHS. Comment: The commenter proposes eliminating references to IQ scores in sec.sec.27.509, 27.511, and 27.513, and substituting subtypes of mental retardation on the basis that the diagnosis of any subtype of mental retardation would have used an IQ level standardized for that test. Response: DHS is not eliminating references to IQ scores at this time. The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provide 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 amendments implement the Human Resources Code, sec. sec.32.001-32.042. sec.27.507. Level-of-Care Determination. (a) The level-of-care determination is performed by the Texas Department of Human Services DHS according to the level-of-care criteria in this subchapter. Information submitted to DHS must be based on current data obtained from standardized evaluations and formal assessments which include physical, emotional, social, and cognitive factors. (b) (No change.) (c) The ICF-MR Program has four levels of care: ICF-MR I, ICF-MR V, ICF-MR VI, and ICF-MR/RC VIII. Level-of-care determinations for the ICF-MR I, ICF-MR V, and ICF-MR VI levels of care are based on the individual's intellectual functioning. Level-of-care determinations are based on the following variables regarding the developmental needs of each individual: (1)-(2) (No change.) (3) primary diagnosis. (d) (No change.) (e) If an I.Q. score cannot be obtained for a person with severe or profound deficits in intellectual functioning, a social composite score (S.C.) obtained on the Vineland Adaptive Behavior Scale or other professionally accepted scale must be submitted. Documentation must be available that an assessment of intelligence with a standardized instrument was attempted. (f) (No change.) (g) Some individuals may have special health care needs that necessitate placement in a facility which meets provisions of the National Fire Protection Association's Life Safety Code, 1985 edition, for accommodating special needs. When this occurs, placement in a facility that meets appropriate Life Safety Code requirements takes precedence over placement in a facility that matches the individual's level of care. Regardless of his level-of care assignment, an individual who requires a medical care plan is eligible for residence only in a facility that meets the provisions of either Chapter 12 or Chapter 13 of the 1985 Life Safety Code. (h) If DHS determines that information submitted for a level of care was not correct, the level-of-care assignment is reevaluated. If information originally submitted has changed, the level-of-care assignment is also re-evaluated. (i) If an individual's IQ, adaptive behavior level, and/or health status are such that he does not meet all the criteria for any one level of care, TDH conducts a special review of his application for a level of care. TDH may ask him to submit current psychological, social, medical, and/or other evaluations. (j) The criteria for each level of care include a profile of typical developmental needs for that level of care. Based on I.Q., adaptive behavior level, and health status, an individual may meet the criteria for two levels of care. In this situation, application is made for the level of care that best meets the individual's developmental needs. This determination is based on the profile that most closely describes the individual. A single deficit in any of the categories of skills noted in a profile does not necessarily make the individual ineligible for that level of care. 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 June 28, 1994. TRD-9443136 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: August 15, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 450-3765 Part IV. Texas Commission for the Blind Chapter 163. Vocational Rehabilitation Program 40 TAC sec.163.30 The Texas Commission for the Blind adopts the repeal of sec.163.30, concerning the order of selection for payment of services, without changes to the proposed text as published in the May 20, 1994, issue of the Texas Register (19 TexReg 3912). The section has been repealed and replaced to institute a new order of selection that is necessary for the systematic approach to assuring, in times of limited funding, that persons with the most severe visual disabilities are given priority in receiving services that result in employment and the ability to live independently. The repeal is also necessary to conform with the federal state plan. The agency is eliminating the category within the rule that refers to payment for services to persons who are in imminent danger of blindness. No comments were received regarding repeal of the section. The repeal is adopted under the Human Resources Code, Title 5, Chapter 91, sec.91.011, which provides the Texas Commission for the Blind with the authority to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs, sec.91.053, which requires the agency to comply with federal requirements in the delivery of vocational rehabilitation services to secure the full benefits of the federal laws, and 29 United States Code, sec.701 et seq, the Rehabilitation Act of 1973, sec.101(a)(5)(A), as amended, which authorizes the agency to operate with an order of selection in the event that vocational rehabilitation services cannot be provided to all eligible individuals who apply for such 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 June 24, 1994. TRD-9443066 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: July 31, 1994 Proposal publication date: May 20, 1994 For further information, please call: (512) 459-2611 40 TAC sec.163.30 The Texas Commission for the Blind adopts new sec.163.30, concerning the order of selection for payment of services, with changes to the proposed text as published in the May 20, 1994, issue of the Texas Register (19 TexReg 3912). The rule is being adopted to institute a new order of selection that is necessary for the systematic approach to assuring, in times of limited funding, that persons with the most severe visual disabilities are given priority in receiving services that result in employment and the ability to live independently. The rule is also adopted to conform with the federal state plan for the provision of vocational rehabilitation services. The rule defines the expenditure categories by priority that will be used in paying for services. No comments were received regarding adoption of the rule. The text in subsection (a) has been rewritten and adopted with changes to correct a typographical error and to use "people-first" language that has been overlooked in the proposed rule. The word "extend" has been changed to "extent, " and the phrase "most severely visually disabled persons" has been changed to "persons with the most severe visual disabilities." The new section is adopted under the Human Resources Code, Title 5, Chapter 91, sec.91.011, which provides the Texas Commission for the Blind with the authority to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs, sec.91.053, which requires the agency to comply with federal requirements in the delivery of vocational rehabilitation services to secure the full benefits of the federal laws, and 29 United States Code, sec.701 et seq, the Rehabilitation Act of 1973, sec.101(a)(5)(A), as amended, which authorizes the agency to operate with an order of selection in the event that vocational rehabilitation services cannot be provided to all eligible individuals who apply for such services. sec.163.30. Order of Selection for Payment of Services. (a) An order of selection is the priority assigned to categories of visual disability for payment of services and is instituted during periods of limited funding to assure that persons with the most severe visual disabilities received all services, or as many as possible, toward accomplishment of their vocational goals. Priority categories are determined by the extent of visual loss and its impact on the individual's ability to work and live independently. (b) Eligibility for services is determined before applying the order of selection. (c) A service that can be paid from alternative resources will be provided to the consumer regardless of the order of selection. (d) A public safety officer whose visually disabling condition arises from a disability sustained in the line of duty will receive special consideration. Public safety officers who are eligible for services may have them purchased even though they are not permanently totally or legally blind. (e) The expenditure level is established by the executive director and approved by the board based on the amount of funds available for purchase of services. (f) Expenditure categories, by priority from most restrictive to least restrictive, are contained in this subsection as follows: [graphic] (g) Information on the order of selection and the expenditure level at which the agency is operating is available by writing the Texas Commission for the Blind, P.O. Box 12866, Austin, Texas 78711, or by calling its toll-free line, 1- 800-252-5204 (TDD and voice) between the hours of 8:00 a.m. and 5:00 p. m. 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 June 24, 1994. TRD-9443065 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: August 1, 1994 Proposal publication date: May 20, 1994 For further information, please call: (512) 459-2611