ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part X. Department of Information Resources Chapter 201. Planning and Management of Information Resources Technologies 1 TAC sec.201.1, sec.201.5 The Department of Information Resources adopts amendments to sec.201.1 and sec.201.5, concerning the planning and management of information resources technologies, without changes to the proposed text as published in the January 18, 1994, issue of the Texas Register (19 TexReg 317). The amendments are adopted to comply with the provisions of Senate Bill 381 and the General Appropriations Act, as enacted by the 73rd Legislature. The amendments will establish procedures for quality assurance review of major information resources projects and will ensure funding is not interrupted for projects subject to the quality assurance review. No comments were received regarding adoption of the rules. The amendments are adopted under the authority of Government Code, sec.2054. 052, which authorizes the Department to adopt rules as necessary to carry out its responsibility under the Information Resources Management 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 authority. Issued in Austin, Texas, on July 18, 1994. TRD-9445209 Edward Serna Deputy Director Department of Information Resources Effective date: August 8, 1994 Proposal publication date: January 18, 1994 For further information, please call: (512) 475-4714 TITLE 10. COMMUNITY DEVELOPMENT Part I. Texas Department of Housing and Community Affairs Chapter 7. Low Income Home Energy Assistance Program 10 TAC sec.sec.7.1-7.8 The Texas Department of Housing and Community Affairs adopts the repeal of sec.sec.7.1-7.8, concerning the Low Income Home Energy Assistance Program, without changes to the proposed text as published in the January 25, 1994, issue of the Texas Register (19 TexReg 394). The rules proposed for repeal formerly governed the Texas Department of Human Service's administration of the Home Energy Assistance Program. The rules were administratively transferred to TDHCA with the legislative transfer of the program on September 1, 1992. The program has substantially changed and the rules are now obsolete. No comments were received regarding the proposed repeal. The repeals are adopted under the Texas Government Code, Chapter 2306, sec.2306, which provides the Texas Department of Housing and Community Affairs with the authority to administer the Low Income Energy Assistance Program and to adopt 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 July 25, 1994. TRD-9445553 Henry Flores Executive Director Texas Department of Housing and Community Affairs Effective date: August 15, 1994 Proposal publication date: January 25, 1994 For further information, please call: (512) 475-3902 TITLE 22. EXAMINING BOARDS Part XI. Board of Nurse Examiners Chapter 213. Practice and Procedure 22 TAC sec.213.33, sec.213.34 The Board of Nurse Examiners adopts new sec.213.33 and sec.213.34, concerning Schedule of Fines and Penalty/Sanction Factors, without changes to the proposed text as published in the June 10, 1994, issue of the Texas Register (19 TexReg 4477). These rules are being adopted to increase compliance through the deterrent effect of a fine, and to expedite disposition of non-practice violations and to provide notice through rule of the fine structure to be used in expedited and traditional discipline. The adoption of these rules permit the categorization of complaints by priority; the adoption of these rules will enable those lower priority cases to be moved through the system quicker, thus enabling staff time to spend on higher priority cases. The deterrent effect of fines should increase the level of compliance and reduce the number of non-practice violations in the disciplinary case load. No comments were received. The rules are adopted under the Texas Government Code, sec.2001.023, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. 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 July 22, 1994. TRD-9445520 Louise Waddill, Ph.D., R.N. Executive Director Board of Nurse Examiners Effective date: August 12, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 835-8675 Chapter 215. Nurse Education 22 TAC sec.215.2, sec.215.14 The Board of Nurse Examiners adopts amendments to sec.215.2 and sec.215.14, concerning Definitions and Extended Campus/Extension Site, without changes to the proposed text as published in the June 10, 1994, issue of the Texas Register (19 TexReg 4478). These amendments are being adopted to provide guidance to those nursing programs that have previously used Extended Campus(es) and wish to reactivate the use of a dormant campus. These rules will address the need in the community, nursing program and regulatory agencies that are involved at the time an extended campus is reactivated. The adoption of these rules will require a nursing program seeking to reactivate an extended campus to meet certain criteria supporting the concept of planned growth, facilitate collaboration and encourage ongoing communication among nursing programs as they compete for scarce clinical and faculty resources. No comments were received. The rules are adopted under Texas Civil Statutes, Article 4514, sec.1, which provide the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. 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 July 22, 1994. TRD-9445521 Louise Waddill, Ph.D., R.N. Executive Director Board of Nurse Examiners Effective date: September 1, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 835-8675 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 1. General Administration Subchapter A. Rules of Practice and Procedure 28 TAC sec.1.88, sec.1.89 The Texas Department of Insurance adopts new sec.1.88 and sec.1.89, concerning entry of appearance and failure to enter an appearance or failure to appear at a hearing on a contested case, with changes to the proposed text as published in the April 12, 1994, issue of the Texas Register (19 TexReg 2608). A public hearing was held July 18, 1994 to receive comments from interested persons. Entry of appearance and sanctions for failure to enter an appearance or to appear at hearing are necessary and essential for the orderly and efficient disposition of certain contested matters before the Texas Department of Insurance. The sections are necessary for uniform and predictable outcomes in instances where respondents fail to enter an appearance or to attend a hearing and thereby to effectively reduce the occurrence of unfair surprise to the department and diminish the unnecessary expenditure of public resources in the enforcement of the statutory/regulatory framework applicable to the licensees of this department. Three changes are made in the adoption of sec.1.88. The adopted section permits 20 days from the date of providing notice to a respondent for the respondent to enter an appearance. It also includes a new subsection (b) which clarifies that a contested case means any proceeding referred to the State Office of Administrative Hearings by the Department other than a rate promulgation or rate approval proceeding. Finally, in sec.1. 88, the adopted new sections contain a new subsection (g) which provides disclosure to the respondent about the requirement to enter an appearance, what constitutes an appearance, and the consequences for failing to do so. In sec.1.89, the adopted section contains five changes. The adoption separates proposed subsection (a) into two subsections so that the definition of a default judgment is contained in a subsection (b) by itself. It further contains a definitional reference to sec.1.88 in adopted sec.1.89(a). It adds the word "factual" to modify the allegations deemed admitted. It changes the wording of the notice in adopted sec.1.89(c) to delete ambiguous language. Finally, it also contains a new subsection (d), which provides that a motion to reopen the record for a hearing on the merits filed by the respondent following the granting of a motion for default judgment shall be granted if it is established that failure to attend was not intentional or the result of conscious indifference and that it was due to mistake or accident. Adopted new sec.1.88 informs all parties, party representatives, and the administrative law judge that a party is expected to enter an appearance in a contested case. It also sets out explicit requirements to answer or otherwise enter an appearance in a contested case. Adopted new sec.1.88 also sets out clear consequences for the failure to enter an appearance. Section 1.88(a) sets out the time period for entering an appearance. Section 1.88(b) describes what is meant by a contested case for purposes of the section. Section 1.88(c) defines what constitutes an appearance. Section 1.88(d) defines what is meant by providing notice of hearing to a respondent. Section 1.88(e) addresses how filing of the entry of appearance is to be accomplished. Section 1.88(f) describes the consequences for failing to enter an appearance. Section 1.88(g) contains a specific disclosure about the provisions of sec.1.88 which will be included as part of all notices of hearing for cases subject to sec.1.88. Adopted new sec.1.89 informs all parties, party representatives, and the administrative law judge that a party is expected to attend the hearing on a contested case, and specifies sanctions available to a petitioner which result from the failure of the respondent to attend the hearing in a contested case. Section 1.89(a) advises that a default judgment is triggered by the failure to attend a hearing in a contested case. Section 1.89(b) defines what a default judgment means, for purposes of the section. Section 1.89(c) sets out the circumstances and details for entry of the default judgment and also specifies the specific disclosure which is to be included as part of all notices of hearing for cases subject to the provisions of sec.1.88 and sec.1.89. Section 1. 89(d) sets out the circumstances under which a motion to reopen the record shall be granted and distinguishes the motion to reopen from the motion for rehearing. Written comments were received from eight separate sources on the sections as published. Provident American Insurance Company was the sole licensee to submit written responses and recommended changes to the sections as published. The Office of Public Insurance Counsel commented and recommended changes to the sections as well. In addition, the Texas Legal Reserve Officials Association and the Texas Land Title Association submitted comments and recommendations for change. Moreover, the law firms of Long, Burner, Parks and Sealy; Whitehead and Reyes; DeLeon and Boggins; and Akin, Gump, Strauss, Hauer and Feld each commented and recommended changes to the sections as published. Some commenters indicated they believe the sections as proposed should be withdrawn. Some of these commenters indicated that the sections are unnecessary, on the basis that they believe there are existing rules either in Title 28 or elsewhere which provide for the same result as provided in these sections. Other commenters recommended the proposed sections be withdrawn because they believe the proposed sections inappropriately limit due process rights of respondents. The department disagrees with both bases for commenters' recommending withdrawal, and does not withdraw the sections for the following reasons: (1) Other rules addressing the same or similar subject matter are much more general and do not in fact assure the same result as these rules. (2) The particular provisions of these proposed rules are in direct and specific response to detailed observations of the State Office of Administrative Hearings. (3) The proposed sections do not destroy, impede, or compromise availability of due process rights to any particular respondent. They are fair because they support, and are consistent with, the statutory framework applicable to contested cases of the type to which they would apply. They are also fair because they recognize and preserve the due process rights available to respondents under the APA and other applicable law, while at the same time curtailing the unnecessary and indefensible waste of public resources in the enforcement of the law in instances where certain respondents have failed to respond to letters indicating an intention to institute disciplinary proceedings, and subsequently have provided no response to a notice of hearing properly served which specifies in clear detail the allegations of behavior and conduct which have been made against the respondent. This subsequent failure to respond many times takes two forms: the first is to provide no responsive pleading or entry of appearance; the second is to fail to show up for the hearing on the day and at the time that it is set. Some commenters argued that the department does not have sufficient statutory authority to adopt the sections as proposed. The department disagrees. Both the Government Code, Chapter 2001 and the Insurance Code have specific provisions addressing the availability of default as a remedy for resolving administrative matters which are within the scope of the proposed sections. For example, the Government Code, sec.2001.056 provides that "unless precluded by law, an informal disposition may be made of a contested case by stipulation, agreed settlement, consent order; or default." (emphasis supplied) In equally clear language, the Insurance Code, Article 1.10, sec.7(d) provides that the Commissioner may dispose of items addressed in sec.7 by consent order, agreed settlement, stipulations or default. (emphasis supplied) Items in sec.7 include cancellation, revocation or suspension of a licensee's license or an order to cease and desist from particular activity or activities which are in violation of specific statutory/regulatory provisions. Thus, the department has clear authority to adopt a rule addressing resolution of contested administrative matters by default. Moreover, the Government Code, sec.2001.004 provides that each state agency adopt rules of practice setting forth the nature and requirements of available procedures. In addition, the Insurance Code, Article 1.03A provides that the commissioner promulgate and adopt rules for the conduct and execution of the duties and functions by the department. Thus, the department has specific statutory authority to adopt the sections. Some commenters appeared confused as to scope and application of the proposed sections, especially since industry-wide ratemaking proceedings are now "contested cases" to be referred to the SOAH by statutory designation. These commenters raised questions about applicability of the proposed sections to rate hearings. The department agrees that the scope and applicability provisions of the proposal need to be clarified. Though by inadvertence, the proposed sections as published do not contain a provision making it clear that they are to apply to any proceeding which the department refers to the State Office of Administrative Hearings, other than a rate promulgation proceeding or a rate approval proceeding. For this reason, the adoption contains a revision to sec.1. 88 (and a corresponding parallel change to sec.1.89) to make it clear that the provisions apply to any action other than a rate promulgation or rate approval proceeding which is referred by the department to the SOAH. A comment suggested that the application of the proposed sections should be limited to proceedings brought under the Insurance Code, Article 21.01-2, sec.5 only. That section would limit application of the sections to agents marketing particular types of insurance and insurance related products and services, managing general agents, third party administrators, reinsurance brokers and risk managers only. The department disagrees. The proposed sections should be uniformly applied to all licensees of the department, rather than only to selected types of licensees. Although the practical results might reflect that provisions of the rule are more often utilized in connection with one type of licensee, nonetheless there is no public policy or other compelling reason to have the proposed sections apply only to a particular class or type of licensee. Some commenters stated that the proposed sections appear to be redundant, based on an observation that SOAH already has rules covering appearance of parties and default for failure to attend a hearing. The department disagrees. Although it is true that the SOAH has provisions for entry of appearance and for default judgment in its rules-1 TAC sec.155. 21 and sec.155.47, primarily -those rules are much more general in nature than these proposed sections, and therefore these are not redundant of those. The most striking and relevant feature of the department proposals which distinguish them from the SOAH rules is that the department proposals specify with precision and detail exactly what is expected of a respondent. Correspondingly, they expressly provide, with similar detail, the results that ensue under the rules if a respondent does not behave in compliance with them. In addition, the fact the SOAH has rules addressing the same or similar subject matter does not preclude this agency from developing distinctive rules that are more specific regarding such subject matter. As a matter of fact, the SOAH rules provide in sec.155.5(b) that if an agency's rules are more specific, the more specific rules control. Moreover, it was the SOAH which suggested advisability of an entry of appearance and default judgment rule making it clear to respondents that they were expected to file an entry of appearance and attend the hearing, and further setting out in the rule specific disclosure about the result for failing to enter an appearance and/or attend the hearing. The two sections as proposed and published are patterned to address the observations of the SOAH. To the extent that these proposed sections address the same subject matter as other rules which might otherwise apply to actions subject to these proposed sections, these rules would supersede and control over the other rules because they are more recently adopted and because they more specifically and precisely address the matters of entry of appearance and default judgment. Moreover, to the extent that these proposed sections address the same or similar subject matter as other rules in this title and chapter of the Texas Administrative Code, the department will review existing rules and move forward expeditiously to revise or repeal sections, subsections, or paragraphs of such rules as necessary. COMMENTS RELATING TO sec.1.88 A number of commenters argued that the 10-day period provided in proposed sec.1.88(a) for entering an appearance is insufficient, might not comply with the Government Code, sec.2001.051, and/or will not permit a respondent to prepare a responsive pleading and comply with 28 TAC sec.1.90(e). A number of recommendations were made to lengthening the time period for entering an appearance. These ranged essentially from an additional ten calendar days to an additional 20 calendar days. Even though the department is not persuaded that the provisions of the proposal violate any existing statutory provision or rule or any portion of a statute or rule relating to the period of notice required prior to a hearing being conducted, the adoption nonetheless doubles the time period permitted for entry of appearance to 20 calendar days from the date the notice is sent. As a preliminary matter, however, the department points out that the entry of appearance in proposed sec.1.88(a) is likely to be well in advance of the date for which the hearing is set in all cases. Thus, even with respect to the published proposal, there would have been no conflict with the Government Code, sec.2001.051, which requires only that notice be reasonable and not less than ten days prior to the hearing date, which is a different issue from the one here. Moreover, the provisions of proposed sec.1.88 do not create any burden with respect to sec.1.90(e). Proposed sec.1.88 provides clearly that an entry of appearance is any responsive pleading. In connection with proposed sec.1.88, sec.1.90(e) merely provides that such motion or pleading be filed so that the original is filed with SOAH and the true and correct copy is filed with the TDI docket clerk, and that delivery of such responsive pleading be delivered to TDI and SOAH on the same day and by the same method. Some commenters had argued that due to the complexity of certain matters, ten days is insufficient to enter an appearance, on the apparent presumption that a respondent would have insufficient time to receive the notice of hearing, obtain counsel, have counsel review the allegations, obtain background facts, develop its case and so forth. The department disagrees, based on two fundamental facts. First, the requirement in sec.1.88 is only with respect to a threshold response, any responsive pleading. Second, and equally fundamental, the notice of hearing is not the first notice that a respondent is going to receive with respect to a given action. For example, in proposed enforcement or disciplinary actions, the notice of hearing will have been preceded by a notice of intention to institute disciplinary proceedings against the license holder under the Government Code, sec.2001.054, and may have been preceded by separate request for information under Article 1.24. Thus the respondent will already have been provided an opportunity to show compliance with all requirements of law, to secure background facts, inform counsel, develop a case, and so forth. With respect to other contested cases, the position statement of the department will be well known and in some cases will be provide the basis for the contested case itself. Because the department desires there be no question about reasonableness of the period for filing a responsive pleading and to protect due process, the adoption provides 20 days from the date the notice of hearing is provided to the respondent to enter an appearance. One comment complained that proposed sec.1.88(c) only considers those situations where the department is not the respondent. The rule is written in such a way that the department itself cannot be subject to the provisions of the rule. The rule should be rewritten to provide for instances where the department is the respondent and subject to default judgment. The department points out that because of the manner in which a contested case is referred to the SOAH, the department technically is never going to be a respondent in those actions which are subject to the proposed sections. Moreover, strong public policy/public interest protection reasons exist not to default the department as a unit of the state. Unlike a private party, the department as a unit of the state has a public interest, not a private or proprietary interest, at stake in the actions to which it is a party. Finally, the comment indicates that there is a need for procedural parity in the proposed sections, a parity that it suggests is not present. The fact of the matter is that there is procedural parity. The motion to dismiss is always an available motion if the department fails to show up and put on evidence. Therefore, even though the department is in effect the petitioner in the actions subject to the proposed sections, should it fail to attend the hearing, the remedy available to the respondent is dismissal for failure to establish by probative evidence that the respondent is not in fact in compliance with the applicable statutes and rules. One comment stated that proposed sec.1.88 is unfair because it requires respondents to plead with greater particularity than other parties. The department disagrees, since in its opinion the reverse is actually true. The notice of hearing, for example, must set out with specificity the allegations or other matters set out in the Government Code, sec.2001.052. These include a statement of the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing is to be held; a reference to the particular sections of the statutes and rules involved (with respect to allegations, this would include reference to each of the statutes the respondent is alleged to have violated); and a short, plain statement of the matters asserted. On the other hand, the standard of specificity for a respondent under proposed sec.1.88 is very low. The rule clearly states that any responsive pleading, no matter how general, is sufficient to meet the requirement for entering an appearance. One comment urged that for full disclosure to respondents about what is expected of them in connection with an entry of appearance, the provisions of sec.1.88 should include a disclosure in the notice of hearing regarding the requirement to enter the appearance, the time period for entering the appearance and notice about what consequences accompany the failure to enter an appearance. The department has provided such disclosure in the adoption in sec.1.88(g), because it believes that full and fair disclosure is to be preferred with respect to any licensee which might be a respondent in any action referred by the department to the SOAH. The new subsection clearly sets out that an entry of appearance is required, states what constitutes an entry of appearance, and states that the failure to enter an appearance results in any opposing party being entitled to obtain a continuance from the administrative law judge for a time period to be determined by the ALJ. COMMENTS RELATING TO sec.1.89 Some comments stated that the provisions of section are onerous and sacrifice due process for the expediency of the department. The department disagrees with both statements. The provision for a default is not onerous. Every respondent subject to the default judgment will have had the opportunity to decide at any point to exercise its due process rights with respect to notice and opportunity for hearing and to demonstrate that it is in compliance with all applicable statutes and regulations. The proposed section does not in any way infringe on or limit any of those rights. All statutory notice and disclosure requirements remain unaffected by the proposal, and will continue to have to be met under the section as proposed. All hearing rights and opportunities remain available under the proposed section. Even the APA, however, envisions that persons and entities who are entitled to exercise due process rights under its framework are expected to attend hearings, conferences and other meetings set by the finder of fact on matters concerning them. Several other comments were submitted voicing concern about proposed sec.1. 89 and the perceptions of commenters that the section as published contained or resulted in due process defects and/or obstacles. These comments took on a range of forms, as follows: The proposed rule forecloses all rights to an administrative hearing because a party is late to a hearing and treats silence by absence as an admission or stipulation, which is an extreme curtailment of the due process intended under the APA. The remedy proposed under sec.1.89 is too drastic, because apparently no review would be available if the wording of sec.1.89 were allowed to stand, and physical inability to get to a hearing on time would become absolute calamity not subject to review. The proposed section is potentially abusive, because no matter what the cause, whether inadvertence, impossibility or neglect, the failure to appear would in effect institute unreviewable penalties regardless of the merits surrounding the inability of a respondent to appear at an exactly set time. Should there be any error in the notice and the party not receive notice through no fault of its own, operation of sec.1.89 would result in an adverse decision for that party. Proposed sec.1.89 should provide or expressly recognize the availability of a motion by the respondent to reopen the record for the purpose of showing good cause why the respondent was unable to attend the hearing (e.g. accidents, car trouble, sudden illness) in order to prevent an order for default judgment from being entered, or if the judgment is already entered to have it set aside before it becomes final. The section should address and prevent fundamental error based on an order being entered founded only upon unsworn allegations. The department agrees in part and disagrees in part with the due process comments. Since they all address essentially the same overriding concern, they will be treated together in a single response. With respect to the comments or portions of comments urging inclusion of a provision for the submission of a motion to reopen the record or to set aside the order entering the judgment on a good cause showing, the department agrees in part as follows: The opportunity to submit such motions is available procedurally to a respondent regardless of explicit inclusion in the rule. Nonetheless the adoption includes new sec.1.89(d) for the purpose of expressly recognizing availability of motions to reopen the record for the purpose of showing good cause why a hearing should be had by establishing that the failure to attend the hearing was neither intentional nor the result of conscious indifference, and that the failure to attend was due to a mistake or accident. The subsection provides that the motion must be granted if a respondent filing such a motion establishes the criteria set out in the subsection, and that it must be filed between the time that the original motion for default judgment was granted and the time that the order becomes final. It also clarifies that the filing of a motion to reopen (or motion to set aside/reopen) is not equivalent to filing a motion for rehearing and has absolutely no effect on the filing of a motion for rehearing or the time periods for filing and considering a motion for rehearing. The department further points out that all other remedies available after a proposal for decision is issued remain intact. For example, any respondent with respect to whom an adverse proposal for decision might be issued pursuant to sec.1.89 would have the opportunity to file exceptions to the PFD for consideration by the commissioner. Those exceptions could among other things state in detail why it was inappropriate for the ALJ to have granted the motion for default judgment and certainly could be accompanied by a motion to reopen the record and have a hearing, based on good cause. If those exceptions were not filed or after having been filed an order entering the default judgment were signed anyway, the respondent still would have the opportunity to submit a motion for rehearing. If that motion were denied in any manner, the respondent would still be entitled to judicial review. One comment urged that proposed sec.1.89 should require posting by prominent display in the lobby of the Department of Insurance building of the precise day and time, and specific room location of the hearing for at least 24 hours before any default judgment can be entered. The department disagrees because implementation of the recommendation by the department is a practical impossibility. It is impossible for the department to implement because the precise room location for any given hearing is controlled by the SOAH. All hearings currently are in the same building, and on the fourth or fifth floor. That degree of specificity can be and is placed in the notice of hearing. It will continue to be. However, the department does not know any earlier than any given respondent the precise room number of any contested case which has been referred to the SOAH and set for hearing. It is therefore inappropriate to suggest that the department be responsible for posting such information. The notice of hearing has as precise and detailed information as is possible on the date of the mailing of the notice with respect to the exact day, time and location of the hearing, and will continue to contain as specific information as the department is able to obtain as of the date of providing the notice of hearing to a respondent. One comment stated that proposed sec.1.89 is not needed because of provisions of 28 TAC sec.sec.1.82-1.86. Sections 1.82-1.86 relate to discovery in contested cases, and the discovery tools that are available under their provisions. The department disagrees. This comment confuses means with ends. The discovery sections to which it refers provide a means to an end. That end might be a particular outcome, result or type of order or judgment, but not a default judgment. The provision of proposed sec.1.89 for a default judgment, on the other hand, is an end-a remedy-not a means to that end. It is appropriate and necessary in the administrative context in a substantially similar manner as in the judicial branch, that both discovery rules and default judgment rules be available, distinct and separate from one another. The presence of one does not assure the result sought and assured by the presence of the other. One comment expressed concern that "allegations of fact" are not distinguished from "allegations of law" in the published proposal. Although the department believes that the only allegations contained in the notice of hearing and subject to the rule are allegations of fact, it nonetheless recommends a change to sec.1.89(b) as proposed and published to indicate that a default judgment is to be entered on the basis of factual allegations in the notice of hearing. Regardless of whether the adjective "factual" had been added to the subsection, the section does not interfere with the authority of the administrative law judge to determine conclusions of law based on the allegations which are deemed admitted as true under the section as it was proposed. Correspondingly the ALJ also retains the authority to recommend the appropriate penalty based on the conclusions of law drawn by the ALJ. One comment suggested that proposed sec.1.89 as published could be applied mechanically to require entry of a default judgment even if the respondent had successfully obtained a continuance from the original hearing date to a subsequent date. This department notes this comment is incorrect. If a hearing is continued by a ruling of the ALJ, obviously no one is expected to show up for the hearing at the originally set time. That being the case, there obviously would be no motion for default and even if there were, there would be no ALJ to act on the motion, since the day and time for the hearing had been changed. One comment suggested that the words "regardless of whether additional proof is submitted" found at the end of the notice in proposed sec.1.89(b) as published is ambiguous, possibly unnecessary, and recommended it be deleted. The department agrees that ending the notice with the word "true" removes possible ambiguity from the notice. For this reason, the adoption deletes the phrase following the word "true" in the disclosure about default judgment found in the notice of hearing to be provided to respondents. The new sections are adopted pursuant to the Insurance Code, Articles 1.10 and 1.03A, and the Government Code, sec.2001.056 and sec.2001.004. Article 1.10, sec.7 provides that the commissioner may dispose of items addressed in sec.7 by consent order, agreed settlement, stipulations or default. Article 1.03A authorizes the commissioner of insurance to promulgate and adopt rules and regulations for the conduct and execution of the duties and functions by the department. The Government Code, sec.2001.056 provides that unless precluded by law, an informal disposition may be made of a contested case by stipulation, agreed settlement, consent order, or default. The Government Code, sec.2001.004 authorizes and requires each state agency to adopt rules of practice setting forth the nature and requirements of available procedures, and prescribe the procedure for adoption of rules by a state administrative agency. The adopted new sections affect regulation pursuant to the following statutes: Government Code, Chapter 2001. Insurance Code, Articles 1.10 and 1. 10A sec.1.88. Entry of Appearance; Continuance. (a) When a contested case has been instituted, the respondent or the representative of the respondent shall enter an appearance within 20 days of the date on which the notice of hearing is provided to the respondent. (b) For purposes of this section, a contested case shall mean any action that is referred by the Texas Department of Insurance to the State Office of Administrative Hearings other than a rate promulgation or rate approval proceeding. (c) For purposes of this section, an entry of appearance shall mean the filing of a written answer or other responsive pleading. (d) For purposes of this section, notice of hearing is provided to a respondent on the date of deposit in the United States mails of a registered or certified letter, return receipt requested, containing a notice of hearing, in accordance with provisions of sec.1.28 of this title (relating to Notice and Service). (e) The entry of an appearance shall be filed in accordance with sec.1. 90(e) of this title (relating to the Joint Memorandum of Understanding (MOU) between Texas Department of Insurance (TDI) and State Office of Administrative Hearings (SOAH) concerning procedures for contested cases before SOAH and responsibilities of each agency), and in accordance with sec.155.22 (relating to Filings). (f) The failure of a party to timely enter an appearance as provided in this section shall entitle the opposing party to a continuance at the time of the hearing in the contested case for such reasonable period of time as determined by the administrative law judge. (g) The notice of hearing provided to a licensee for a contested case as defined in this section shall include the following language in capital letters in 12-point boldface type: FAILURE TO ENTER AN APPEARANCE BY FILING IN WRITING AN ANSWER OR OTHER RESPONSIVE PLEADING TO THE ALLEGATIONS IN THIS NOTICE WITHIN 20 DAYS OF THE DATE THIS NOTICE WAS MAILED SHALL ENTITLE ANY OPPOSING PARTY TO A CONTINUANCE AT THE TIME OF THE HEARING FOR A TIME PERIOD SET BY THE ADMINISTRATIVE LAW JUDGE. sec.1.89. Failure to Attend Hearing; Default Judgment. (a) If a respondent fails to appear in person or by legal representative on the day and at the time set for hearing in a contested case as defined in sec.1.88 of this title (relating to Entry of Appearance; Continuance), regardless of whether an appearance has been entered, the administrative law judge, upon motion by the petitioner, shall enter a default judgment in the matter adverse to the respondent who has failed to attend the hearing. (b) For purposes of this section, default judgment shall mean the issuance of a proposal for decision against the respondent in which the factual allegations against the respondent in the notice of public hearing are deemed admitted as true, without any requirement for additional proof to be submitted by the petitioner. (c) Any default judgment granted under this section will be entered on the basis of the factual allegations contained in the notice of hearing, and upon the proof of proper notice to the defaulting party opponent. For purposes of this section, proper notice means notice sufficient to meet the provisions of the Government Code, sec.sec.2001.051, 2001.052 and 2001.054, and 1.28 of this title (relating to Notice and Service); such notice also shall include the following language in capital letters in 12-point boldface type: FAILURE TO APPEAR AT THE HEARING WILL RESULT IN THE ALLEGATIONS AGAINST YOU SET OUT IN THIS NOTICE BEING ADMITTED AS TRUE. (d) After the granting of a motion for default judgment, a motion by the respondent to reopen the record shall be granted if the respondent establishes that the failure to attend the hearing was neither intentional nor the result of conscious indifference, and that the failure to attend was due to a mistake or accident. (1) A motion to reopen the record shall be filed prior to the time that the order of the commissioner becomes final pursuant to the provisions of the Government Code, Chapter 2001. (2) A motion to reopen the record is not a motion for rehearing and is not to be considered a substitute for a motion for rehearing. The filing of a motion to reopen has no effect on either the statutory time periods for the filing of a motion for rehearing or on the time period for ruling on a motion for rehearing, as provided in the Insurance Code and the Government Code. 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 July 25, 1994. TRD-9445579 D. J. Powers General Counsel and Chief Clerk Texas Department of Insurance Effective date: August 15, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 463-6327 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 101. General Rules 30 TAC sec.101.28 The Texas Natural Resource Conservation Commission (TNRCC) adopts the repeal of sec.101.28, concerning the collection of fees based on the reporting requirements of the National Emission Standards for Hazardous Air Pollutants (NESHAP) (for Asbestos) promulgated in 40 Code of Federal Regulations Part 61, Subpart M, without changes to the proposed text as published in the April 26, 1994, issue of the Texas Register (19 TexReg 3135). The repeal of sec.101.28 is necessitated by the transfer of responsibility for NESHAP Subpart M as it relates to asbestos demolition/renovation to the Texas Department of Health (TDH) from the TNRCC. Legislative authority for the transfer of asbestos responsibility to the TDH is mandated by House Bill 1680, 73rd Legislature, 1993. The purpose of the asbestos fee rule was to fund the investigation and oversight of the asbestos demolition/renovation activities in the state. With the passing of the responsibility from the TNRCC to the TDH, it would be inappropriate for the TNRCC to continue to collect asbestos fees. The TDH plans to assume all NESHAP Subpart M responsibilities that relate to asbestos demolition/renovation effective September 1, 1994, and will adopt a fee rule of its own to fund the continuing asbestos program. A public hearing was held May 18, 1994 in Austin. The comment period closed on May 27, 1994. There was no oral testimony given during the public hearing. However, the TNRCC received written testimony on the proposal from two commenters, the United States Environmental Protection Agency, and Exxon Company, U.S.A., in support of the repeal. The repeal is adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. 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 July 13, 1994. TRD-9445494 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: August 31, 1994 Proposal publication date: April 26, 1994 For further information, please call: (512) 239-1966 Chapter 114. Control of Air Pollution From Motor Vehicles 30 TAC sec.114.1 The Texas Natural Resource Conservation Commission (TNRCC) adopts an amendment to sec.114.1, concerning Maintenance and Operation of Air Pollution Control Systems or Devices Used to Control Emissions from Motor Vehicles, without changes to the proposed text as published in the May 24, 1994, issue of the Texas Register (19 TexReg 4007). The previous subparagraph (A) stipulated that acceptable vehicle conversion equipment must be certified by the California Air Resources Board (CARB) or be accepted in writing by the United States Environmental Protection Agency (EPA) as being in compliance with federal policy. The adoption of new sec.114.1(b)(3)(A) is necessary because CARB has limited the certification of conversion equipment for 1994 and later model year vehicles allowed for sale outside of California. Furthermore, while EPA has the authority to provide written verification, as indicated in the rule, EPA has not exercised that option. Therefore, although approvable conversion equipment exists, the alternative fuel conversion industry has no means of complying with the certification provisions of the previous sec.114(b)(3)(A). In order to continue with the conversions as mandated by Texas statute, the TNRCC, on May 9, 1994, passed a resolution that was used to avoid violations until the EPA final rules on vehicle conversions became fully implemented. The EPA has recently promulgated national rules to regulate the certification of both new original equipment manufacturer (OEM) and converted alternatively fueled vehicles. The two certification procedures are covered under the EPA's full certification procedure (40 Code of Federal Regulations (CFR) 86.09423) and the small volume manufacturers certification procedure (40 CFR 86.092-14). A public hearing was held on June 9, 1994 in Austin to consider the proposed amendment. The staff requested comments from the public, the regulated community, and EPA regarding the effects of the proposed rule change. Comments opposing the amendment to sec.114.1(b)(3)(A) were received from Lone Star Alternative Fuels, Inc. and the GalvestonHouston Association for Smog Prevention (GHASP). Comments supporting the amendment to sec.114.1(b)(3)(A) were received from EPA. The following paragraphs summarize these comments. Lone Star Alternative Fuels suggested that Texas continue to require CARB certification and/or EPA written approval. The CARB promulgated a new rule on certification of 1994 and newer model year vehicles, limiting the availability of certified alternative fuel conversion equipment outside the State of California. To this effect, fleet owners and operators are having difficulty meeting the requirements of the Texas Alternative Fuels Program (TAFP). In order to alleviate the problem of a lack of conversion systems in the interim period, the TNRCC passed a resolution that was used to avoid violation of the state rule until EPA final rules on vehicle conversions become implemented. Recently, EPA has promulgated new national rules, the EPA's full certification procedure (40 CFR 86.094-23), and the small volume manufacturers certification procedure (40 CFR 86.092-14), which will allow certification of vehicles as mandated by Texas statute. The TNRCC will continue to adhere to the state and federal regulations toward conversion and purchase of alternative fuel vehicles for the implementation of the TAFP. Lone Star Alternative Fuels expressed concern about the possibility of owners/operators having to remove equipment after national certification standards are established. This might cause delays in fleet conversions to alternative fuels. To avoid delays in fleet conversions, the TNRCC proposed and has adopted an amendment to this amendment. The amendment will prevent vehicle conversions from violations until the federal certification procedure is fully implemented. Any vehicle which conforms to the requirements of EPA Memorandum 1A and is legitimately certified by the equipment manufacturer, will not need to be removed unless the equipment is defective. The vehicles will also be used in compliance with the TAFP. However, unless the vehicle has been certified to a more stringent federal standard (low-emission vehicle, ultra-low emission vehicle, inherently low emission vehicle, or zero-emission vehicle) under EPA's full certification or small volume manufacturer procedures, it may not qualify for an emission reduction credit. Lone Star Alternative Fuels stated that Texas should have some method for the end user to determine if the equipment complies with federal policy. Federal policy established in 40 CFR 85 Subpart V has provisions requiring manufacturers to prepare certain documentation when demonstrating compliance with EPA Memo 1A. According to Memo 1A, a part or system manufacturer may provide a written statement that a replacement part performs the same function in reducing emissions as the replaced part or that emissions tests have been performed with similar results. Although it is the responsibility of the fleet owner to have the proper equipment for alternatively fueled vehicles, the burden of proof that the equipment meets federal standards is on the installer. The EPA Memo 1A is a federal document and is enforced by EPA. The GHASP suggested that instead of repealing sec.114.1(b)(3)(A), TNRCC work with manufacturers and EPA to ensure the availability of conversion equipment. The TNRCC has been coordinating with both EPA and equipment manufacturers to encourage the development of alternative fuel equipment. The EPA has established certification procedures for alternative fuel equipment to ensure that OEM and converted vehicles meet the required emission standards at the time of manufacture/conversion and while in use. The amendment is adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. 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 July 13, 1994. TRD-9445491 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: August 12, 1994 Proposal publication date: May 24, 1994 For further information, please call: (512) 239-1966 Chapter 334. Underground and Aboveground Storage Tanks The Texas Natural Resource Conservation Commission (commission or TNRCC) adopts an amendment to sec.334.2, and new sec. sec.334.530-334.538, concerning overpayment prevention in the petroleum storage tank remediation program. Section 334.531(c), sec.334.533, sec.334.534(c) and (e), and sec.334.537 are adopted with changes to the proposed text as published in the January 25, 1994, issue of the Texas Register (19 TexReg 490). Sections 334.530, 334.532, 334.535, 334.536, and 334.538 are adopted without changes. A definition has been added to the proposed amendment to sec.334.2. This definition is for clarification only, and is not a substantive change to the rule. The amended and new rules are adopted to enhance the implementation of certain provisions of House Bill 1588 passed by the 71st Texas Legislature and Senate Bill 1243 passed by the 73rd Texas Legislature. House Bill 1588 created the petroleum storage tank remediation (PSTR) fund for the purpose of cleaning up contamination resulting from leaking underground and aboveground storage tanks. Senate Bill 1243, codified in the Texas Water Code as sec.26.35735, requires the TNRCC to audit claims from the PSTR fund. Because reimbursement is only made after an eligible owner or operator has paid the contractor, it may be appropriate for the commission to look directly to the contractor for recovery of overpayments. In other situations, the commission may choose to seek recovery from the owner or operator. The commission will use audit discretion to seek recovery of money first from the party that has benefited most from the overpayment. In addition to claims for reimbursement from the PSTR Fund filed by owners and operators, the PSTR Fund is also used to pay for clean-ups in the commission's state lead program. Any corrective action that is funded in whole, or in part by the PSTR Fund is subject to an audit pursuant to the new rules. The commission received comments from the following entities and organizations: Texas Association of Storage Tank Professionals; Industry Council on the Environment; Texas Oil Marketers Association; Texas Automobile Dealers Association; the City of Brownwood; and numerous individuals and corporations actively involved in this industry. All of the comments received fit into one or more of several common categories. The comments and commission responses are as follows: Several commenters stated that the proposed rules would place an unfair burden on contractors, because contractors would be required to ensure that all expenses incurred by a responsible party are reimbursable and allowable under the TNRCC guidelines. TNRCC will not be seeking to receive any monies not paid by the agency from PSTR Fund. Thus, the TNRCC is not requiring contractors or consultants to investigate all work, rather only work which is paid for out of the PSTR Fund is subject to audit by the agency. Two commenters stated that the expenses associated with audits will be onerous to the persons being audited. They recommended that expenses associated with an audit should be reimbursable. The commission responds that expenses associated with audits are not reimbursable because they do not arise directly from the performance of necessary corrective action. A commenter requested that the rule be changed to state that Notices of Overpayment will only be sent to tank owners, not to contractors. Conversely, another commenter felt that Notices of Overpayment should only be sent to contractors, and not to owners. The commission feels that in the interest of maintaining the fiscal security of the fund all recipients of money from the fund should be subject to audit. However, as stated previously the commission will use audit discretion to seek recovery of money first from the party that has benefited most from the overpayment. Some commenters were concerned that the agency would not consider industry standards effective at the time work was performed. These commenters felt that the commission does not recognize that changes in clean up standards have occurred and will continue to occur with the passage of time. The agency has clarified the rule in response to this comment. Every claim for reimbursement is subject to a two part review by the executive director. First there is a technical review, to determine if the work was required, and whether the activity is therefore allowable; second, there is a financial review, to determine whether the dollar figure claimed is appropriate and therefore payable. The standard for the financial review, as set forth by rule has changed over the history of this program. From the beginning of the program the pertinent inquiry during the financial review was whether the expenses were "reasonable." However on June 7, 1993, the commission adopted by rule the Reimbursable Cost Guidelines. Thereafter, the pertinent inquiry during the financial review is whether the expenses claimed are "reimbursable". During the audit process, the commission will apply the criteria that were in effect at the time the work was performed. For example, for work performed from the inception of the program, up until June 7, 1993, the inquiry is whether the expenses were "reasonable" and allowable. For work performed on or after June 7, 1993, the inquiry is whether the expenses were "reimbursable" and allowable. The commission has added the following language to sec.334.533: "Audits will be conducted in accordance with generally accepted auditing standards. Audits will be based on the TNRCC cleanup standards and policies, procedures, guidelines and rules in effect at the time the work was performed. For work conducted from the inception of the program until June 7, 1993, the commission will audit to ensure that only reasonable and allowable costs have been paid from the PSTR Fund. For work conducted after June 7, 1993, the commission will audit to ensure that only reimbursable and allowable costs have been paid from the PSTR Fund." In addition, a reference to "reasonable cost", as defined by sec.334.309 of this title, (effective until June 7, 1993), has been added to the amendment to sec.334.2. A commenter stated that the proposed rules do not clearly set forth who will be required to pay. The commission responds that this information is contained in sec.334.534(b). Several commenters felt that proposed sec.334.531(c) should be amended to add the word "knowingly" before the word submit. The commission agrees, and has added "knowingly" to sec.334.531(c). Three commenters said that sec.334.530 should be amended to include recordkeeping instructions. The commission responds that all records should be kept to the extent necessary to provide evidence to the TNRCC that work paid from the fund was allowable, necessary, cost-effective, reasonable and reimbursable. Because sec.334.306 and sec.334.307 in Subchapter H of this title (relating the Interim Reimbursement Program) expressly require applicants to keep detailed records and provide them to the agency upon request, additional recordkeeping instructions need not be added to this subchapter. Several commenters felt that the agency should only seek to recover monies in instances where fraud can be documented by the commission. The commission does not agree. To require the commission to prove fraud as a prerequisite for recovery of overpayment places an unrealistic burden on the agency and ignores the reality that some claims are simply overpaid due to mistake, not due to intentional misrepresentation by the claimant or his or her contractor. At least three commenters stated that the agency should not charge interest on overpayments, nor should the agency charge court or hearing costs (including attorney's fees) to persons who contest a Notice of Overpayment. The commission responds that the rule has been edited to only allow assessment of interest in cases where a person has committed fraud on the PSTR Fund. In other situations, where a person has received reimbursement of a non-allowable, non-reasonable, or non-reimbursable expense, but no fraud has been committed, no interest charges will be assessed. Accordingly, sec.334. 534(e) has been edited to reflect this change. The commission has also deleted provisions from the rule that would allow the agency to charge hearing costs, including attorney's fees to a person who contests a Notice of Overpayment. Numerous commenters asserted that the new audit rules may not be applied to claims submitted and paid prior to the effective date of these rules. The commenters argued that retroactive application of this rule is against the Texas State Constitution. The commission disagrees. The rule as it is to be implemented is not retroactively unconstitutional. Subchapter A. General Provisions 30 TAC sec.334.2 The amendment is adopted under House Bill 1588, which requires the commission to establish a Groundwater Protection Program and to implement a reimbursement program for responsible parties who perform corrective action at leaking petroleum storage tank sites. Senate Bill 1243 which requires the commission to implement an audit program for claims from the PSTR fund; and pursuant to Texas Water Code, sec.5. 103 and sec.5.105, which provide the commission with the authority to adopt necessary rules to carry out the powers and duties prescribed by the Texas Water Code and other laws of the State of Texas, and to establish and approve general policies for the commission. sec.334.2. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Allowable cost -As defined by Subchapter H, sec.334.308 of this title (relating to Interim Reimbursement Program). Cost-effective work -Work of a type which is both effective in achieving the desired remediation result, and which of alternative types of effective work, is the least costly. Necessary cost -Cost of necessary work. Necessary work/technically necessary work-Work which is required and approved by the commission to assess or remediate a Leaking Petroleum Storage Tank site. Reimbursable cost -As defined by Subchapter M, sec.334.560 of this title (relating to Reimbursable Cost Guidelines). Reasonable cost -That amount or range which is commensurate with the level of corrective action necessary to assess and remediate a site, as determined by the executive director, based on an evaluation of technical effectiveness and cost effectiveness as well as typical costs expected for that particular corrective action under review, with respect to the necessary or required scope and complexity of the action. (As defined by 31 (later 30) TAC sec.334.309(a), of this title (relating to Allowable Costs and Restrictions on Allowable Costs- Interim Period) until that section was repealed and replaced on June 7, 1993 by the adoption of Subchapter M of this title (relating to Reimbursable Cost Guidelines). 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 July 22, 1994. TRD-9445542 Mary Ruth Holder Division, Legal Division Texas Natural Resource Conservation Commission Effective date: August 15, 1994 Proposal publication date: January 25, 1994 For further information, please call: (512) 239-6087 Subchapter L. Overpayment Prevention 30 TAC sec.sec.334.530-334.538 The new sections are adopted under House Bill 1588, which requires the commission to establish a Groundwater Protection Program and to implement a reimbursement program for responsible parties who perform corrective action at leaking petroleum storage tank sites. Senate Bill 1243 which requires the commission to implement an audit program for claims from the PSTR fund; and pursuant to Texas Water Code, sec.5. 103 and sec.5.105, which provide the commission with the authority to adopt necessary rules to carry out the powers and duties prescribed by the Texas Water Code and other laws of the State of Texas, and to establish and approve general policies for the commission. sec.334.531. Responsibility of Recipients of Money from the PSTR Fund and Persons Paid by Recipients of Money from the Petroleum Storage Tank Remediation Fund. (a) The recipient of reimbursement shall cooperate fully with any audit or investigation by the executive director regarding the necessity of work performed and/or the costs charged and amounts paid. (b) Each person who performs work at a Leaking Petroleum Storage Tank site, who is paid by a person who anticipates being, or actually is, reimbursed from the Petroleum Storage Tank Remediation Fund, shall cooperate fully with any audit or investigation by the executive director regarding the work performed and/or the costs charged. (c) No person shall knowingly submit false information to the executive director as part of any materials required to be submitted under this subchapter. sec.334.533. Audits. The executive director's staff shall conduct a sufficient number of audits of claims and payments made to assure achievements of the purposes of this Chapter. Audits will be conducted in accordance with generally accepted auditing standards. Audits will be based on TNRCC cleanup standards and policies, procedures, guidelines and rules in effect at the time the work was performed. For work conducted from the inception of the program until June 7, 1993, the commission will audit to ensure that only reasonable and allowable costs have been paid from the PSTR Fund. For work conducted after June 7, 1993, the commission will audit to ensure that only reimbursable and allowable costs have been paid from the PSTR Fund. Such audits may occur prior to or after claims have been paid. Such audits shall include at a minimum an investigation into whether activities performed and/or the amounts claimed were: (1) allowable; (2) technically necessary; (3) cost effective; and, (4) reimbursable, (for work performed on or after June 7, 1993), or reasonable (for work performed prior to June 7, 1993) as those terms are defined by this chapter. sec.334.534. Notice of Overpayment. (a) If the executive director conducts an audit or investigation and concludes that reimbursement of a claim was for an amount which exceeded the necessary, allowable or reimbursable cost of corrective action, the executive director shall prepare a notice of overpayment. The notice of overpayment shall briefly summarize the findings of the executive director and identify the amounts which were overpaid. (b) The notice of overpayment will be delivered to the person who received money from the PSTR Fund or to persons who were paid by the person who received money from the PSTR fund. (c) Upon receipt of a notice of overpayment, the recipient shall submit a check returning the amount of overpayment to the Texas Natural Resource Conservation Commission. (d) All checks rendered to return overpayments shall be made out to "The State of Texas-Petroleum Storage Tank Remediation Fund", and mailed to the Director of the Administrative Audits and Financial Assurance Division, Audits and Program Coordination Section, Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin, Texas 78711-3087 with the notation "LPST # ________, Application #________, overpayment return." (e) In cases where the executive director demonstrates fraud on the PSTR Fund, the recipient of a Notice of Over-payment may also be required to pay interest, calculated at New York Prime, plus two points, dating from the date of overpayment by the Texas Natural Resource Conservation Commission (or predecessor agency), to the date of repayment to the Texas Natural Resource Conservation Commission. sec.334.537. Failure to Return Overpayment or Cooperate with Audit or Investigation. (a) If the overpayment has not been returned to the commission, or objected to by the recipient, in accordance with the requirements of this subchapter, the executive director shall file a petition seeking an order from the commission to compel payment. (b) All commission orders issued pursuant to this subchapter shall be enforceable in the same manner as any order issued pursuant to the Texas Water Code, Chapter 26 including administrative penalties of up to $10,000 per day of violation. (c) The executive director may seek an order from the commission to compel cooperation with an audit or investigation at any time. 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 July 22, 1994. TRD-9445541 Mary Ruth Holder Division, Legal Division Texas Natural Resource Conservation Commission Effective date: August 15, 1994 Proposal publication date: January 25, 1994 For further information, please call: (512) 239-6087 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part II. Texas Parks and Wildlife Department Chapter 65. Wildlife Subchapter N. Early Season Migratory Game Bird Proclamation 31 TAC sec.sec.65.311, 65.312, 65.314, 65.316 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing held June 29, 1994 adopted amendments to sec. sec.65.311, 65.312, 65.314 and 65.316 concerning the Early Season Migratory Game Bird Proclamation. Section 65.314 and sec.65.316, are adopted with changes to the proposed text as published in the May 27, 1994 issue of the Texas Register (19 TexReg 4160). Amendments to sec.65.311 and sec.65.312 are adopted without changes and will not be republished. Amendments to sec.65.314 and sec.65.316 were made as a result of the United States Fish and Wildlife Service denial of early season migratory proposals made by department staff. The denial made by the United States Fish and Wildlife Service was made in the Service's regularly scheduled public hearing June 23, 1994 in Washington, D.C., where the Central Flyway representatives presented proposed flyway recommendations for the final rulemaking. Dove and early teal seasons as proposed in sec.65.314 constituted a series of options. In reference to mourning dove seasons and bag limits, the Commission adopted Option IV as listed in proposed sec.65.314(b)(1)(A)(ii), sec.65.314(b)(2)(A)(iv), and sec.65.314(b)(3)(A)(iv). The net effect of this option was to provide a 60-day dove season with a 15-bird bag limit. The Commission therefore amended sec.65.314(b)(1)(C), sec.65.314(b)(2)(C), and sec.65. 314(b)(3)(C) to reflect the increase in daily bag and possession limits for mourning doves. In reference to early teal season, the Commission adopted the second option as proposed in sec.65.314(e)(1). The effect of this adoption is that of setting the early teal season as September 17-25, 1994. Changes in proposed rules in sec.65.316, regarding the Extended Falconry Season, were the result of the denial of the department's proposals concerning mourning dove seasons. As a result, the Extended Falconry Season was set for November 14-Decemmber 20, 1994 instead of January 9-February 14, 1995 as proposed in sec.65.316(b)(2). These adopted amendments are consistent with biological studies which indicate stable or increasing early season game bird populations. These adopted rules regulate the taking of migratory game birds compatible with the Texas Populations to ensure viable future numbers. The rules will provide limited sport harvest consistent with the populations of the various species. A total of 67 comments were received at 5 public hearings held throughout the state, by letter and telephone concerning the proposed amendments. Six persons favored mourning dove season option one (3-way split season), 5 favored option two (same season as last year), 16 favored option three (2-way split with extended January season in the Central and South Zones), and 14 favored option four (2-way split season totaling 60 days with a 15-bird bag limit). Seven persons wanted the mourning dove season opened on September 20 in the South Zone instead of opening September 3 and seven persons wanted the second segment of the mourning dove season in the Central Zone open in January rather than December 26. No persons representing groups spoke for or against the proposed rules. The three-way split in the Central and South Zones was denied by the United States Fish and Wildlife Service. Mourning dove option IV (a 60-day season and 15-bird bag limit) is preferred over options II or III (a 70-day season and a 12-bird bag limit) because more hunting opportunity will be afforded by 3 additional birds in the bag rather than 10 days in season length. The amendments are adopted under Texas Parks and Wildlife Code, Chapter 64, Subchapter C, which provides the Texas Parks and Wildlife Commission with authority to regulate seasons, means, methods, and devices for taking and possessing migratory game bird wildlife resources. sec.65.314. Open Seasons, Shooting Hours, Bag and Possession Limits. (a) Rails. Statewide: (1) Dates: September 1-November 9, 1994. (2)-(3) (No change.) (b) Mourning doves. (1) North Zone: That portion of the state north of a line beginning at the International Bridge south of Fort Hancock; thence north along FM 1088 to State Highway 20; thence west along State Highway 20 to State Highway 148; thence north along State Highway 148 to Interstate Highway 10 at Fort Hancock; thence east along Interstate Highway 10 to Interstate Highway 20; thence northeast along Interstate Highway 20 to Interstate Highway 30 at Fort Worth; thence northeast along Interstate Highway 30 to the Texas-Arkansas state line. (A) Dates: September 1-October 30, 1994. (B) (No change.) (C) Daily bag and possession limits: 15 mourning doves, white-winged doves, and white-tipped (white-fronted) doves in the aggregate including no more than six white-winged doves and two white-tipped doves per day; 30 mourning doves, white-winged doves, and white-tipped doves in the aggregate including no more than 12 white-winged doves and four white-tipped doves in possession. (2) Central Zone: That portion of the state between the North Zone and the South Zone. (A) Dates: September 1-October 16, 1994 and December 26, 1994-January 8, 1995. (B) (No change.) (C) Daily bag and possession limits: 15 mourning doves, white-winged doves, and white-tipped (white-fronted) doves in the aggregate including no more than six white-winged doves and two white-tipped doves per day; 30 mourning doves, white-winged doves, and white-tipped doves in the aggregate including no more than 12 white-winged doves and four white-tipped doves in possession. (3) South Zone: That portion of the state south of a line beginning at the International Toll Bridge in Del Rio; thence northeast along U.S. Highway 277 Spur to U.S. Highway 90 in Del Rio; thence east along U.S. Highway 90 to Interstate Highway 10 at San Antonio; thence east along Interstate Highway 10 to the Texas-Louisiana State Line. (A) Dates: Except in the special white-winged dove area as defined in sec.65.314(c) of this title, September 23 through November 6, 1994 and December 26, 1994 through January 9, 1995. In the special white-winged dove area, the mourning dove season is September 23-November 2, 1994 and December 26, 1994- January 9, 1995. (B) (No change.) (C) Daily bag and possession limits: 15 mourning doves, white-winged doves, and white-tipped (white-fronted) doves in the aggregate including no more than six white-winged doves and two white-tipped doves per day; 30 mourning doves, white-winged doves, and white-tipped doves in the aggregate including no more than 12 white-winged doves and four white-tipped doves in possession. (c) White-winged doves. Special white-winged dove area: That portion of the state south and west of a line beginning at the International Toll Bridge in Del Rio; thence northeast along U.S. Highway 277 Spur to U.S. Highway 90 in Del Rio; thence east along U.S. Highway 90 to United States Highway 83 at Uvalde; thence south along U.S. Highway 83 to State Highway 44; thence east along State Highway 44 to State Highway 16 at Freer; thence south along State Highway 16 to State Highway 285 at Hebbronville; thence east along State Highway 285 to FM 1017; thence southeast along FM 1017 to State Highway 186 at Linn; thence east along State Highway 186 to the Mansfield Channel at Port Mansfield; thence east along the Mansfield Channel to the Gulf of Mexico. (1) Dates: September 3, 4, 10 and 11, 1994. (2)-(3) (No change.) (d) Gallinules. (Moorhen or common gallinule and purple gallinule) Statewide: (1) Dates: September 1-November 9, 1994. (2)-(3) (No change.) (e) Teal ducks. (blue-winged, green-winged, and cinnamon). Statewide: (1) Dates: September 17-25, 1994. (2)-(3) (No change.) (f)-(g) (No change.) sec.65.316. Extended Falconry Season. (a) It is lawful to hunt and take rails, mourning doves, white-winged doves and gallinules by means of falconry, but the hunting or taking is limited to persons holding valid falconry permits issued by the department. (b) It is lawful to take rails, mourning doves, white-winged doves and gallinules by means of falconry during: (1) the open seasons prescribed in sec.65.314 of this title (relating to Opens Seasons, Bag and Possession Limits); (2) the period November 14-December 20, 1995 and during those hours from one- half hour before sunrise to sunset. (c) (No change.) (d) No person may possess a firearm or archery equipment or be accompanied by a person possessing a firearm or archery equipment while hunting by means of falconry. This agency hereby certifies that the amendments as adopted have been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 15, 1994. Paul M. Shinkawa Acting General Counsel Texas Parks and Wildlife Department Effective date: September 1, 1994 Proposal publication date: May 27, 1994 For further information, please call: 1-800-792-1112, Ext. 4433 or (512) 389- 4433 Part X. Texas Water Development Board Chapter 355. Research and Planning Fund Subchapter B. Economically Distressed Areas Facility Engineering 31 TAC sec.355.71 The Texas Water Development Board (the board) adopts an amendment to sec.355.71, related to the Research and Planning Fund, Economically Distressed Areas Facility Engineering, without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4728). Corrections were made to punctuation for purposes of clarity. The amendment will provide for board use of funds which may become available from federal sources to fund facility engineering plans. Pursuant to the terms of the agreements to receive funds from alternative sources, the board may be required to provide applicants a greater percentage of the costs associated with the preparation of facility engineering plans than is permitted pursuant to the current rule. This amendment will permit the board, to the extent required or allowed under agreements to receive additional funds, to provide to applicants a percentage, up to the full amount, of the costs associated with the preparation of the facility engineering plans. No comments were received regarding adoption of the amendment. The amendment is adopted pursuant to Texas Water Code, sec.6.101 and Texas Water Code, sec.15.403, which require the Board to adopt rules to carry out the powers and duties of the Board and the Texas Water Code, Chapter 15. 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 July 22, 1994. TRD-9445511 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: August 12, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 463-7981 Chapter 363. Financial Assistance Programs The Texas Water Development Board (board) adopts amendments to sec.sec.363.2, 363.42, 363.43, 363.241 and new sec. sec.363.4 and 363.16, concerning Financial Assistance Programs. The amendments to sec.sec.363.2, 363.42, 363.43, and new sec.363.16 are adopted with changes to the proposed text as published in the April 12, 1994, issue of the Texas Register (19 TexReg 2694). Amendment to sec.363.241 and new sec.363.4 are adopted without changes to the proposed text and will not be republished. The board did not adopt the proposed amendments to sec.363.14 or sec.363.202 in order to allow further study on the board's requirements for environmental information from its applicants. The amendments will add a loan application option which will simplify the technical requirements for certain water and sewer loan applications, and clarify existing rule language. These amendments are being made to respond to customer needs for early access to loan proceeds to pay for planning and design costs. The rules as originally proposed combined a new pre-design funding concept, rule clarifications and changes to rules on environmental information requirements. The board approved changes to allow the predesign funding option and clarification changes to the rules, but did not adopt proposed changes to the environmental information rules. Changes to sec.sec.363.2, 363.16, 363.42, 363. 43, were made to eliminate or modify portions of those sections that related to environmental information and review. A change also was made to sec.363.16(c) , to clarify the executive administrator's and board's roles in determining use of the predesign funding option. The amendments to sec.363.2, Definitions of Terms, add definitions for the terms "Building," "Escrow," "Escrow agent," "Escrow agent bank," and "Trust agent" and clarify other definitions for consistency in meaning and use of these terms. A new sec.363.4, Activities Funded, is being added to clarify that the board will provide financial assistance for separate elements of construction as defined in the Texas Water Code. A new sec.363.16, Pre-Design Funding Option, is being added to provide an alternative method of receiving financial assistance from the board. Assistance under this section will provide the applicant with an option to close a loan with simplified technical requirements to receive earlier funding for project planning and design costs, with money for later phases of construction being escrowed until all environmental and technical requirements have been met. The amendment to sec.363.42, Loan Closing, will make changes necessary to be consistent with closing a loan under the new Pre-Design Funding Option being added under sec.363.16, clarify the procedures for escrowing funds, make changes to be consistent with definition changes under sec.363.2, and clarify requirements for providing adequate operation, maintenance and insurance coverage to protect the board's interest. The amendment to sec.363.43, Release of Funds, will change the title and other parts of this section to be consistent with definition changes under sec.363.2, establish requirements for releasing funds under the new Pre-Design Funding Option being added under sec.363.16, and add the option to release funds to the applicant's trust agent. The amendment to sec.363.241 Loan Closing, will make changes necessary for implementation of the Pre-Design Funding Option being added under sec.363.16 and clarification of existing rule language. Comments were received regarding adoption of the amendments from the City of Houston, Texas Water Partnership Association, Texas Municipal League, Sierra Club and City of Georgetown. The comments were generally favorable for adoption of the predesign funding option. One positive, two negative, and one comment expressing concern were received about the environmental elements of the rules. One commenter asked that the predesign funding option allow for release of funds to a trust agent in accordance with Generally Accepted Accounting Principles. The rules were changed to reflect these comments. The definition of "Escrow" was expanded to include a transfer of funds to a trust agent. Comments also questioned the potential impacts of project delays, proposed the use of short-term notes from applicants instead of bonds for up-front costs, and the ineligibility of certain projects. Each of these issues was found to not warrant additional change: the board currently has sufficient screening mechanisms in its rules to screen projects that would be expected to cause delay; the use of notes for up-front costs has been and continues to be considered as an option; the rules make certain classes of projects ineligible due to size, construction time required, and potential for environmental issues. Commenters questioned the need for additional environmental requirements; statutory authority to require environmental assessments; and the determination of no fiscal impact as a result of environmental assessment amendments. Comments were also received about the need to avoid creating new environmental review documents when existing documents contain the information required by board rules, and seeking language that the board would not impose environmental conditions that were not required by regulatory agencies or that might be contradictory to the requirements of such agencies. The board either did not act on rules associated with the environmental information requirements, or severed from the rules as adopted language related to the environmental information requirements of the board. Subchapter A. General Provisions Introductory Provisions 31 TAC sec.363.2, sec.363.4 The amendment and new section adopted under the authority of the Texas Water Code, sec.6.101, which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Code and the laws of the state; and Texas Water Code, sec.15.605, which authorizes the board to adopt rules for the State Water Pollution Control Revolving Fund. sec.363.2. Definitions of Terms. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Words defined in the Texas Water Code, Chapters 15, 16 or 17, and not defined here shall have the meanings provided by the appropriate Texas Water Code chapter. Building-Erecting, building, acquiring, altering, remodeling, improving, or extending a water supply project, treatment works, or flood control measures. Closing-The time at which the requirements for loan closing have been completed under sec.363.42 of this title (relating to Loan Closing) and an exchange of debt for funds to either the applicant, an escrow agent bank, or a trust agent has occurred. Commission-Texas Natural Resource Conservation Commission. Debt-All bonds, notes, certificates, book-entry obligations, and other obligations authorized to be issued by any political subdivision. Escrow-The transfer of funds to a custodian of the funds which will act as the escrow agent or trust agent. Escrow agent-The hold the funds which are not eligible for release to the loan recipient. Escrow agent bank-The financial institution to hold the funds which are not eligible for release to the loan recipient. Release-The time at which funds are made available to the loan recipient. Trust agent-The applicant and approved by the executive administrator of the board to hold the funds which are not eligible for release to the loan recipient. 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 July 22, 1994. TRD-9445512 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: August 12, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 463-7981 General Application Procedures 31 TAC sec.363.16 The amendment is adopted under the authority of the Texas Water Code, sec.6.101, which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Code and the laws of the state; and Texas Water Code, sec.15.605, which authorizes the board to adopt rules for the State Water Pollution Control Revolving Fund. sec.363.16. Pre-Design Funding Option. (a) This loan application option will provide an eligible applicant that meets all applicable board requirements an alternative to secure loan proceeds for the pre-design, design or building costs associated with a project. Under this option, a loan may be closed and funds released to complete planning activities. If all required planning has been completed and approved, design funds may also be released at the time of closing. If planning requirements have not been satisfied, design and building funds will be escrowed and released in the sequence described in this section. After planning and environmental review, the executive administrator may require the applicant to make changes in order to proceed with the project. If the portion of a project associated with funds in escrow cannot proceed, the loan recipient shall use the escrowed funds to redeem bonds purchased by the board in inverse order of maturity. General procedures and requirements for pre-design funding are described in this section. (b) Wastewater projects from the State Water Pollution Control Revolving Fund (SRF) and water supply and wastewater projects from the Texas Water Development Fund are eligible for pre-design funding. Flood control, reservoir, municipal solid waste, and economically distressed area projects are not eligible for funding under this option. (c) The executive administrator may recommend to the board the use of this section if, based on available information, there appear to be no significant permitting, social, environmental, engineering, or financial issues associated with the project. An application for predesign funding may be considered by the board despite a negative recommendation from the executive administrator. (d) Applications for pre-design funding must include the following information: (1) for loans including building cost, a preliminary engineering feasibility report which will include at minimum: a description and purpose of the project; area maps or drawings as necessary to fully locate the project area(s); a proposed project schedule; estimated project costs and budget including sources of funds; current and future populations and projected flows; alternatives considered; and a discussion of known permitting, social or environmental issues which may affect the alternatives considered and the implementation of the proposed project; (2) contracts for engineering services; (3) evidence that an approved Water Conservation Plan will be adopted prior to the release of loan funds; (4) all information required in sec.363.12 of this title (relating to General, Legal and Fiscal Information); and (5) any additional information the executive administrator may request to complete evaluation of the application. (e) After board commitment and completion of all closing and release prerequisites as specified in sec.363.42 of this title (relating to Loan Closing) and sec.363.43 of this title (relating to Release of Funds), funds will be released in the following sequence: (1) for planning and permitting costs, after receipt of executed contracts for the planning or permitting phase; (2) for design costs, after receipt of executed contracts for the design phase and upon approval of an engineering feasibility report as specified in sec.363.13 of this title (relating to Engineering Feasibility Data) and compliance with sec.363.14 of this title (relating to Environmental Assessment) or sec.363.223 of this title (relating to Required Environmental Review and Determinations) as applicable; and (3) for building costs, after issuance of any applicable permits, and after bid documents are approved and executed construction documents are contingently awarded. (f) Board staff will use preliminary environmental data provided by the applicant, as specified in subsection (d) of this section and make a written report to the executive administrator on known or potential significant social or environmental concerns. Subsequently, these projects must have a favorable executive administrator's recommendation which is based upon a full environmental review during planning, as provided under sec.363.14 of this title (relating to Environmental Assessment) or sec.363.223 of this title (relating to Required Environmental Review and Determination) as applicable. (g) The executive administrator will advise the board concerning projects that involve major economic or administrative impacts to the applicant resulting from environmentally-related special mitigative or precautionary measures from an environmental assessment under sec.363.14 of this title (relating to Environmental Assessment) or as conditions in the environmental determination required by sec.363.223 of this title (relating to Required Environmental Review and Determinations) as applicable. 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 July 22, 1994. TRD-9445513 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: August 12, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 463-7981 Prerequisites to Release of State Funds 31 TAC sec.363.42, sec.363.43 The amendments are adopted under the authority of the Texas Water Code, sec.6.101, which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Code and the laws of the state; and Texas Water Code, sec.15.605, which authorizes the board to adopt rules for the State Water Pollution Control Revolving Fund. sec.363.42. Loan Closing. (a) Instruments needed for closing. The documents which shall be required at the time of closing shall include the following: (1) evidence that requirements and regulations of all local, state and federal agencies having jurisdiction have been met prior to release of building funds, including but not limited to permits and authorizations; (2) certified copy of the ordinances or resolutions adopted by the governing body authorizing issuance of debt sold to the board which has received prior approval by the executive administrator and which shall have sections providing: (A) that an escrow account, if applicable, shall be created which shall be separate from all other funds and that: (i) the account shall be maintained at an escrow agent bank or maintained with the trust agent; (ii) funds shall not be released from the escrow account without written approval by the executive administrator; (iii) the escrow account bank statements or trust account statement will be provided on a monthly basis to the development fund director's office; and (iv) the escrow account will be adequately collateralized as determined by the executive administrator sufficient to protect the board's interest; (B) that a construction fund shall be created which shall be separate from all other funds of the applicant; (C) that a final accounting be made to the board of the total sources and authorized use of project funds and that any surplus loan funds be used in a manner as approved by the executive administrator; (D) that an annual audit of the political subdivision, prepared in accordance with generally accepted auditing standards by a certified public accountant or licensed public accountant be provided annually to the executive administrator; (E) that the political subdivision shall fix and maintain rates and collect charges to provide adequate operation, maintenance and insurance coverage on the project in an amount sufficient to protect the board's interest; (F) that the political subdivision will implement any water conservation program required by the board until all financial obligations to the state have been discharged; (G) that the political subdivision shall maintain current, accurate and complete records and accounts necessary to demonstrate compliance with financial assistance related legal and contractual provisions; (H) that the political subdivision covenants to abide by the board's rules and relevant statutes, including the Texas Water Code, Chapter 15, 16 and 17; (3) (No change.) (4) unqualified approving opinions of the attorney general of Texas and a certification from the comptroller of public accounts that such debt has been registered in that office; (5) (No change.) (6) executed escrow agreement entered into by the entity and an escrow agent bank or an executed trust agreement entered into by the entity and the trust agent satisfactory to the executive administrator, in the event that construction funds are escrowed; (7) debt delivered in proper form to a location specified by the executive administrator; (8) other or additional data and information, if deemed necessary by the executive administrator. (b) Certified transcript. At such time as available following the final release of funds the political subdivision shall submit a transcript of proceedings relating to the debt purchased by the board which shall contain those instruments normally furnished a purchaser of debt. sec.363.43. Release of Funds. (a) Release of Funds for Planning, Design and Permits. Prior to the release of funds for planning, design, and permits, the political subdivision shall submit for approval to the executive administrator the following documents: (1) a statement as to sufficiency of funds to complete the activity; (2) certified copies of each contract under which revenues for repayment of the political subdivision's debt will accrue; (3) executed consultant contracts relating to services provided for planning, design, and/or permits; and (4) other such instruments or documents as the board or executive administrator may require. (b) Pre-design Funding. The funds needed for the total estimated cost of the engineering planning, and design cost if the engineering feasibility report required under sec.363.13 of this title (relating to Engineering Feasibility Data) or sec.363.222 of this title (relating to Required SRF Engineering Feasibility Report), as applicable, has been approved, the cost of issuance associated with the loan, and any associated capitalized interest will be released to the loan recipient and the remaining funds will be escrowed to the escrow agent bank or to the trust agent until all applicable requirements in subsections (a) and (c) of this section and sec.363.16 of this title (relating to Pre-Design Funding Option) have been met. (c) Release of funds for building purposes. Prior to the release of funds for building purposes, the political subdivision shall submit for approval to the executive administrator the following documents: (1) a tabulation of all bids received and an explanation for any rejected bids or otherwise disqualified bidders; (2) two executed original copies of each construction contract the effectiveness and validity of which is contingent upon the receipt of board funds; (3) evidence that the necessary acquisitions of land, leases, easements and rights-of-way have been completed or that the applicant has the legal authority necessary to complete the acquisitions; (4) a statement as to sufficiency of funds to complete the project; (5) certified copies of each contract under which revenues to the project will accrue; (6) other such instruments or documents as the board or executive administrator may require. (d) Release of funds for projects constructed through one or more construction contracts. For projects constructed through one or more construction contracts, the executive administrator may approve the release of funds for all or a portion of the estimated project cost, provided all requirements of subsection (c) of this section have been met for at least one of the construction contracts. (e) Escrow of funds. The executive administrator may require the escrow of an amount of project funding related to contracts which have not met the requirements of subsection (c) of this section at the time of loan closing. 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 July 22, 1994. TRD-9445514 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: August 12, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 463-7981 Subchapter B. State Water Pollution Control Revolving Fund Closing and Construction Phase 31 TAC sec.363.241 The amendment is adopted under the authority of the Texas Water Code, sec.6.101, which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Code and the laws of the state; and Texas Water Code, sec.15.605, which authorizes the board to adopt rules for the State Water Pollution Control Revolving Fund. 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 July 22, 1994. TRD-9445516 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: August 12, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 463-7981 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part VI. Texas Department of Criminal Justice Chapter 152. General Allocation Rules Subchapter A. Institutional Division Admissions 37 TAC sec.152.3 The Texas Department of Criminal Justice adopts an amendment to sec.152.3, concerning the allocation of admissions to the TDCJ Institutional Division, without changes to the proposed text as published in the May 27, 1994, issue of the Texas Register (19 TexReg 4162). Under Government Code sec.499. 071, the Texas Board of Criminal Justice is required to promulgate a formula for allocation of admissions to the Institutional Division, and is further required to amend that formula annually. The board is required by law to include certain statutory factors in the formula, and has discretion to add other factors. The board is further required to use up-dated data each time it revises the formula. The section will provide for the orderly allocation of prison admissions among counties. The section perpetuates the weighting of factors from the previous year, but updates the data in the formula, which creates some changes in the allocated percentages for many counties. Bexar County traditionally does well at diverting felons from the prison system, and yet is penalized by the operation of the proposed formula, which would reduce the county's admissions by one inmate per week under the example discussed. A State Representative from District 117, Bexar County, commented on the amendment. The agency does not disagree in principle with the comment, but chooses to continue the current allocation formula with updated data, knowing that some counties will be helped and some will be hurt. Bexar County's negative result under the formula appears to have been influenced by lower crime rates in the county. Added prison capacity in the near term will make a huge difference in the actual number of prisoners taken out of the Bexar County jail system, despite the small decrease in allocated percentage of admissions. The amendment is adopted under Government Code, sec.492.013(a), which gives the Board authority to adopt rules as necessary for the operation of the department. Specific authority for this allocation formula is in Government Code, sec.499.071. 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 July 21, 1994. TRD-9445340 Carl Reynolds General Counsel Texas Board of Criminal Justice Effective date: August 10, 1994 Proposal publication date: May 27, 1994 For further information, please call: (512) 463-9693 Subchapter D. Transfer Facility Admissions 37 TAC sec.152.22 The Texas Department of Criminal Justice adopts the reepal of sec.152.22, conerning the allocation of admissions to TDCJ Transfer Facilities, without changes to the text aspublished in the May 27, 1994, issue of the Texas Register (19 TexReg 4169). Under Government Code, sec.499.071, the Texas Board of Criminal Justice is required to promulgate a formula for allocation of admissions to the Institutional Division, and is further required to amend that formula annually. The board is required by law to include certain statutory factors in the formula, and has discretion to add other factors. The board is further required to use up-dated data each time it revises the formula. Under Government Code, sec.499.153, the board is required to adopt an admissions policy for transfer facilities. This repeal will provide space for a new rule for the allocation of transfer facility admissions with exactly the same per county allocations as for prison admissions under 37 TAC sec.152.3. The section that will replace this repealed section emulates the prison admissions formula, perpetuates the weighting of factors from the previous year, but updates the data in the formula. No comments were received regarding adoption of the repeal. The repeal is adopted under Government Code, sec.492.013(a), gives the Board authority to adopt rules as necessary for the operation of the department. Specific authority for this admissions policy is in Government Code, sec.499. 153. 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 July 21, 1994. TRD-9445342 Carl Reynolds General Counsel Texas Board of Criminal Justice Effective date: August 10, 1994 Proposal publication date: May 27, 1994 For further information, please call: (512) 463-9693 TITLE 40. SOCIAL SERVICE AND ASSISTANCE Part IX. Texas Department on Aging Chapter 251. Support Documents 40 TAC sec.sec.251.1-251.5, 251.8, 251.9, 251.11 The Texas Department on Aging adopts the repeal of sec. sec.251.1-251.5, 251.8, 251.9, and 251.11, concerning the Older Americans Act, Grants for State and Community Programs on Aging, Administration of Grants, adoption by reference of 45 Code of Federal Regulation (CFR), Part 80, adoption by reference of 45 CFR Part 84, Civil Rights Policy and Procedure, Senior Community Service Employment Program, and Memorandums of Understanding with State Agencies, without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1794). These rules have been relocated to another area in the Department's portion of the administrative code. Without adoption of the repeals, recodification of the rules could not be accomplished. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate the rules governing the operation of the Department. 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 July 20, 1994. TRD-9445354 Mary Sapp Executive Director Texas Department on Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Chapter 252. Private Donors 40 TAC sec.252.1 The Texas Department on Aging adopts the repeal of sec.252.1, concerning standards of conduct to govern the relationships between officers and employees of the department and private donors, without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1795). This rule has been relocated to another area in the Department's portion of the administrative code. Without adoption of this repeal, recodification of the rules could not be accomplished. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. 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 July 20, 1994. TRD-9445357 Mary Sapp Executive Director Texas Department on Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Chapter 253. State Aging Plan 40 TAC sec.253.1 The Texas Department on Aging adopts the repeal of sec.253.1, concerning adoption by reference of the state plan on aging under Title III of the Older Americans Act, without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1795). This rule has been relocated elsewhere in the Department's portion of the administrative code. Without adoption of this repeal, recodification of the rules could not be accomplished. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate the rules governing the operation of the Department. 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 July 20, 1994. TRD-9445358 Mary Sapp Executive Director Texas Department on Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Chapter 254. Operation of the Texas Department on Aging 40 TAC sec.sec.254.1, 254.3, 254.9, 254.11, 254.13 The Texas Department on Aging adopts new sec.sec.254.1, 254.3, 254.9, 254. 11, and 254.13 concerning the operations of the Texas Department on Aging with changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1795). These new sections are a complete revision of previous rules regarding the operation of the Department and incorporate materials contained in previous rules pertaining to the Department's operation, support documents, Board, designation of planning and service areas, and responsibilities for imposing sanctions. These rules replace previous rules and reduce, refine and clarify the policies and procedures under which the Department operates Older Americans Act Programs in Texas. The Texas Association of Regional Councils, Golden Crescent Area Agency on Aging (AAA), Concho Valley AAA, Texas Association of Area Agencies on Aging, South Plains AAA, Lubbock Meals on Wheels, North Texas AAA, Houston-Galveston AAA, Alamo Area Agency Advisory Council, the staff of the Texas Department on Aging, the Department on Aging Board and Advisory Council, the Attorney General's Office and the general public commented on the rules. In sec.254.1(d) Definitions, several comments were received regarding the wording of several definitions. In the definition of area agency on aging, one commenter suggested changing "grantee" to "Department." The Texas Department on Aging disagrees as the grantee designates an office within the grantee agency to function as the area agency on aging. In the definition of Department, one commenter suggested using "Texas Department on Aging." The Department concurs and has amended the language. One commenter suggested that we identify the titles of the Officers in that definition. The Department does not agree. Titles are subject to change and can be determined from organizational charts published on a recurring basis. In the definition of private donor, two commenters suggested eliminating "offer to give." The Department concurs and has amended the language. One commenter advised that the language in the definition of "right of first refusal" was outmoded. The Department concurs and has amended this language. One commenter stated that the language defining "State Agency" duplicated the definition for "Department. " However, the state agency is often referred to as Department so this term should also be defined. One commenter suggested that the language defining "State regional planning area" was inaccurate. The Department concurs and has amended the language. In sec.254.3, Support Documents, one commenter suggested that paragraphs (3) and (4) contained misquotes and asks why it was necessary for the Department to adopt this federal regulation. The Department concurs and has amended the text. The regulation is adopted as the Job Training Partnership Act and the Senior Community Service Employment Program have joint responsibilities under this federal regulation to train senior citizens. One commenter advised that 29 Code of Federal Regulation (CFR) Part 89 "no longer existed." The Department advises that this federal regulation was never adopted by the Department of Labor but has been followed by them in conducting its programs and that a new regulation has been published for comment. The Department has eliminated this subsection in anticipation of adoption of the new rule by the Department of Labor. In sec.254.9, Designation of planning and service areas, paragraph (2)(D), one commenter advised that the use of "and/or" resulted in the requirements of this paragraph being mutually exclusive. The Department concurs and has deleted "/or" from the text. In portions of sec.254.9 where time periods have been specified for responses to actions taken by the Department, Department staff advised that either the word "workdays" or "calendar" days be inserted to provide greater specificity. Text was amended to reflect this suggestion. In sec.254.9(5), several commenters advised of errors or changes in the listing of counties assigned to planning and service areas (PSAs) and that incorrect counties were listed for one PSA. The Department has amended the text to reflect these advisories. In 254.11, Designation of area agencies on aging, one commenter suggested that the numerical designation for the PSAs be inserted in the alphabetical listing in paragraph (6). The Department concurs and has amended the text. In Section sec.254.13, Department responsibilities for imposing sanctions, subsection (b)(2), a commenter noted that the language in (c) did not correspond with (b)(2). The Department concurs and has amended the text. In subsection (b)(3), several commenters wanted the Department to specify all budget documents published by the Department, the required reporting requirements at the beginning of each fiscal year, and a definition of "timely and correct." The text was revised to include "as published by the Department. " The Department advises, nonetheless, that such listings are subject to change and should not be included in the rules. "Timely and correct" requirements are specified in other sections of the Department's rules. Several comments were made regarding subsection (c). One commenter wanted specifics regarding compliance requirements. One commenter suggested that the written request be sent to the area agency director. The department disagrees as the grantee is the legal entity and the area agency is the designated office within the grantee agency. One commenter recommended a grammatical change. The Department concurs and the text was amended. One commenter recommended simplifying and deleting language concerning compliance with state and federal regulations as it was referenced elsewhere. The Department concurs and has amended the text. Several commenters recommended changes to the timeframe for action from 60 to 90 days. The Department concurs and amended the text. Several commenters stated that the five percent withholding of funds after settlement of the dispute was unnecessarily punitive in nature. The Department concurs and has eliminated this provision. Finally, there was much discussion regarding development of the policies contained in sec.254.7, Advisory Councils, as a result of legislation requiring reduction in the number of advisory council members. This legislation also affected the selection procedures of advisory council members as developed in sec.254.5, The Texas Board on Aging. Consequently, action has been withdrawn on these sections. They will be rewritten and republished for 30 day comment at a later date. The new sections are adopted under the Human Resources Code, sec.101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. sec.254.1. Operation of the Texas Department on Aging. (a) Basis in the Law. This is the agency required under the Older Americans Act, sec.305(a)(1), and created by Chapter 599, Senate Bill 2, Section 1, Human Resources Code, Chapter 101. (b) Mission. The Department is the State's advocate and leader in providing for a comprehensive and coordinated continuum of services and opportunities so that older people can live dignified, independent and productive lives. (c) Scope of Responsibility. The Department has the sole responsibility for providing services authorized under the Act to qualified older Texans, performing those general functions of the Department as specified in the Human Resources Code, sec.101.022, and performing other specific functions as identified in the Human Resources Code, Chapter 101. In addition, the Department will establish policy, develop procedures, provide technical assistance and conduct monitoring programs as may be necessary to ensure compliance with the laws and regulations adopted by reference under sec.254.3 of this title (relating to Support Documents). (d) Definitions. The following words and terms, when used in this part, shall have the following meanings, unless the context clearly indicates otherwise. (1) Act-The Older Americans Act (42 USC, sec.3001 et seq). (2) Aging funds-All funds which are awarded by the Department or that are designated for the specific use of administering or providing services for older persons. Aging funds include Older Americans Act funds, USDA Cash-in-lieu of commodities, State of Texas general revenue funds awarded by the Department, program income funds, and other funds generated by the presence of or existence of Older Americans Act programs. (3) Area Agency on Aging-The office designated by the grantee in a planning and service area to develop and administer the area plan for a comprehensive and coordinated system of services for older persons. Referred to as the Area Agency. (4) Area Plan-The document submitted by an area agency to the Department in order to receive grants or contracts from the Department. (5) Assistant Secretary on Aging-The assistant secretary of the Administration on Aging, U.S. Department of Health and Human Services. (6) Board-The nine members appointed by the governor to direct the work of the Department. (7) Chairman-The presiding officer of the Board, appointed by the governor. (8) Department-The Texas Department on Aging. The single state agency designated to develop and administer the state plan and be the focal point on aging philosophy, policies, procedures, and programs in the State of Texas. (9) Employee-A regular, acting, or exempt full or part-time employee of the Department. (10) Executive Director-The chief executive and administrative officer of the Department appointed by the Board. (11) Float-An amount of money represented by checks outstanding and in process of collection. (12) Funding formula-A formula developed by the Department to distribute funds in an equitable manner based on the requirements of the Older Americans Act. (13) Grant-An award of financial assistance by the federal government or the Department to an eligible recipient. (14) Interest-A percentage return on cash balances in interest-bearing accounts. (15) Officer-An officer of the Department. (16) Planning and service area-A geographic area of a state that is designated for purposes of planning, development, delivery, and overall administration of services under an area plan. (17) Private donor-One or more individuals or organizations that give non- public financial assistance to the Department. (18) PSA-Planning and service area. (19) Right of first refusal-A provision in the Older Americans Act which requires the State agency to give the right of first refusal to a unit of general purpose local government if such unit can meet the requirements established in the Older Americans Act, sec.305(b)(5)(B). (20) State agency-The single state agency designated to develop and administer the State Plan and to be the focal point on aging in the State. (21) State plan-the document submitted by a s tate in order to receive grants from the Federal Government for Older Americans Act programs. (22) State regional planning commission or council of governments (COG) -A political subdivision of the State, the general purpose of which is to make studies and plans to guide the unified, far-reaching development of the area, to eliminate duplication, and to promote economy and efficiency in the coordinated development of the area. (23) TDoA-The Texas Department on Aging, referred to as the Department. (24) Unit of general purpose local government-A political subdivision of the State whose authority is general and not limited to only one function or combination of related functions; or an Indian tribal organization. (e) Standards Governing Private Donors. This section establishes standards of conduct to govern the relationships between officers and employees of the TDoA and private donors. An officer or employee of the Department: (1) shall not accept or solicit any gift, favor, or service from a private donor that might reasonably tend to influence his official conduct; (2) shall not accept employment or engage in any business or professional activity with a private donor which the officer or employee might reasonably expect would require or induce him to disclose confidential information acquired by reason of his official position; (3) shall not accept other employment or compensation from a private donor which could reasonably be expected to impair the officer or employee's independence of judgement in the performance of his official position; (4) shall not make personal investments in association with a private donor which could reasonably be expected to create a substantial conflict between the officer or employee's private interest and the interest of the TDoA; (5) shall not intentionally or knowingly solicit, accept, or agree to accept any benefit for having exercised his official powers on behalf of a private donor or performed his official duties in favor of a private donor; (6) who has policy direction over the TDoA and who serves as an officer or director of a private donor shall not vote on or otherwise participate in any measure, proposal, or decision pending before the private donor if the TDoA might reasonably be expected to have an interest in such measure, proposal, or decision; (7) shall not authorize a private donor to use property of the TDoA unless the property is used in accordance with a contract between the TDoA and the private donor, or the TDoA is otherwise compensated for the use of the property; and (8) shall avoid not only impropriety but also the appearance of impropriety in all matters relating to a private donor. sec.254.3. Support Documents. The Department adopts by reference the following support documents. These will be the basic, comprehensive and governing documents for administration and management of Older Americans Act programs in the State of Texas. In instances where they appear to be contradictory, conflicting or divergent in their requirements, the Department shall issue policies, procedures, standards, rules and technical assistance memorandums or supplements to the documents. The Department will be the final authority in interpreting these documents and how the requirements of these documents will be implemented in the State of Texas as they pertain to programs for older adults. The Department will promulgate sanctions for and initiate appropriate corrective action to secure compliance with the governing documents identified in this chapter. Copies of the documents are available from the Department, P.O. Box 12786, Austin, Texas 78711. (1) The Older Americans Act of 1965 and the Native Americans Programs Act of 1974, (Public Law 89-73) and any amendments thereto as may be promulgated in law by the Congress of the United States. (2) Part VI, Department of Health and Human Services, Office of Human Development Services, 45 Consolidated Federal Regulation (CFR), Parts 1321, 1326 and 1328, Grants for State and Community Programs on Aging; and Grants to Indian Tribes and Organizations Serving Older Native Hawaiians for Supportive and Nutrition Services, and any amendments or revisions as issued thereto by the Department of Health and Human Services, Administrative on Aging. (3) 45 CFR, Part 92, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, and any amendments or revisions as issued thereto by the Department of Health and Human Services. (4) Part III, Department of Labor, Employment and Training Administration 20 CFR, Part 626, 627, 628, 631, and 637, Job Training Partnership, and any amendments or revisions as issued thereto by the Department of Labor. (5) Office of Management and Budget Circular A-87, Cost Principles for State and Local Governments, and any amendments or revisions as issued thereto by the Office of Management and Budget (OMB). (6) OMB Circular A-88, Indirect Cost Rates, Audit, and Audit Followup at Educational Institutions and any amendments or revisions as issued thereto by the OMB. (7) OMB Circular A-102, Grants and Cooperative Agreements with State and Local Governments, and any amendments or revisions issued thereto by the OMB. (8) OMB Circular A-110, Grants and Agreements with Institutes of Higher Education and Other Non-Profit Organizations and any amendments or revisions thereto as issued by OMB. (9) OMB Circular A-122, Cost Principles for Non-Profit Organizations, and any amendments or revisions thereto as issued by OMB. (10) OMB Circular A-123, Internal Control Systems and any amendments or revisions thereto as issued by OMB. (11) OMB Circular A-133, Audits of Institutions of Higher Education and Other Non-Profit Institutions and any amendments or revisions thereto as issued by OMB. (12) The Civil Rights Act of 1991, Title I, and any amendments or revisions thereto as issued by the Congress of the United States. (13) Americans with Disabilities Act of 1990, as amended (Public Law 101-336), 42 United States Code, sec.12101 et seq, and any amendments or revisions thereto as issued by the Congress of the United States. (14) Document titled "the Texas Department on Aging State Plan," as amended. (15) Document titled "the Texas Department on Aging Strategic Plan," as amended. (16) Legislative Appropriations Act, currently enacted by the Texas Legislature. (17) State Office of Administrative Hearings, 1 TAC Chapter 155, Rules of Procedure. sec.254.9. Designation of planning and service areas. The Texas Department on Aging develops and maintains the aging services network by designation of planning and service areas and area agencies on aging. (1) Application for designation to become a planning and service area. The Department provides an opportunity to any unit of general-purpose local government or Indian reservation to apply to be designated as a PSA. The State may designate as a planning and service area any unit of general-purpose local government which has a population of 100,000 or more. In any case in which a unit of general-purpose local government makes application to the State agency under this part to be designated a planning and service area, the State agency shall, upon request, provide an opportunity for a public hearing on such application to such unit of general-purpose local government. Public agencies of units of general-purpose local government shall have the right of first refusal for new area agency on aging designation, where the boundaries of the unit of general-purpose local government and the boundaries of the planning and service area are reasonably contiguous. (2) Submission requirements. Applicants for PSA designation shall submit a written application to the Department no later than October 1 of the year preceding development of the State Plan. The application will include the following: (A) the distribution of persons age 60 and older within the proposed PSA in relation to those other counties within the State regional planning area involved delineating those persons age 60 and older with the greatest economic need and greatest social need; (B) a narrative and statistical description of the incidence of need for services supported by the Older Americans Act in the proposed PSA; (C) a list of agencies providing services supported by the Older Americans Act in the proposed PSA; (D) written evidence of approval by resolution of 75% of the general-purpose local government unit and other pictorial information depicting, at a minimum, the state-delineated regional planning areas, Indian reservations, existing economic development district boundaries and areas, boundaries of the state- delineated health services area, and the Department of Human Resources district area; (E) if the proposed PSA's boundaries are not contiguous with an existing designated state regional planning area, but is either a subdivision of or a combination of such areas, a narrative and statistical description shall address, as well, the basis of need for a PSA other than the regional planning areas involved; (F) an applicant that is submitting an application for designation as an interstate PSA shall include the following: (i) written indication of local interstate governmental agency support; (ii) information as required in paragraph (2) of this subsection; (iii) a list and description of those agencies providing aging services within the interstate area involved; and (iv) description of particular local conditions that may affect the written conditions agreed upon by each State as required by federal regulations. (3) Designation of planning and service area (PSA). (A) A proposed PSA shall be coterminous with, a combination of, or a subdivision of State planning regions as delineated by the governor and authorized by Local Government Code, Chapter 391. A proposed PSA should not split an existing PSA. (B) Existing PSAs shall continue to be designated unless the designation of another PSA is necessary for the assurance of the efficient and effective administration of the programs authorized by the Older Americans Act. (C) The Texas Department on Aging (state agency) shall document the basis for its designation of each PSA. (D) State procedures to provide due process to affected parties: (i) the state agency shall provide notice of an action or proceeding to the affected area agencies on aging, grantee organizations and citizens advisory councils by certified mail; (ii) the state agency shall provide in the notice the documentation for the need of the action or proceedings. The documentation will include: (I) statutory authority for the action; and (II) summary of projected impact of action on clients within service areas affected, and the anticipated improvements in service that will result from said action. (iii) the state agency shall conduct a public hearing for the action or proceedings. The state agency shall: (I) register participants at the hearing and tape record oral testimony presented; and (II) receive a report consisting of a summary of all oral testimony received at the hearing, copies of all written testimony, and a list of names of all persons attending. The report on the hearing will be presented in a public meeting of the Board within 30 calendar days of the completion of the hearing. (iv) the state agency shall request written comment from area agencies on aging, service providers, and older individuals on the action or proceedings; (v) the state agency shall allow an appeal to the Assistant Secretary on Aging of the decision of the state agency on the action or proceedings; and (vi) the state agency shall provide a plan for an orderly transition to ensure continuity in the provision of services to older persons in the PSA. (E) Adversely affected parties involved in an action or proceeding described in paragraph sec.254.9(3)(D) of this subsection may bring an appeal as provided in paragraph sec.254.9 (3)(F) of this subsection, relating to appeals to the Assistant Secretary on the basis of the following: (i) the facts and merits of the matter that is the subject of the action or proceeding; or (ii) procedural grounds. (F) Appeals to the assistant secretary. The assistant secretary's decision on the appeal described in paragraph (3)(E) of this subsection may affirm or set aside the decision of the State agency. If the Assistant Secretary on Aging sets aside the decision, the state agency shall nullify its action. (4) Hearing procedures for applicants for Planning and Service Area designation. (A) Right to a hearing. Any applicant for designation as a PSA whose application is denied by Department has a right to a hearing to appeal such denial. (B) Request for hearing. A request for hearing must be in writing and must state with specificity the grounds upon which the Department's decision is appealed and all grounds upon which petitioner refutes the basis of Department's decision. (i) The request must include: (I) the dates of all relevant actions; (II) the names of individuals or organizations involved in the action; (III) a specific statement of any section of the Act or regulations believed to have been violated; and (IV) a certified copy of the minutes or resolution in which the applicant's governing body requests a hearing and authorizes a person or persons to act in behalf of the agency or organization. The minutes or resolution shall indicate adoption by a majority of a quorum of the governing body of the agency or organization. (ii) The request for hearing must be filed with the Department within 30 calendar days following petitioner's receipt of the notice of Department's decision. (iii) The petitioner may submit written amendments to the request for hearing which must be received by the Department not less then ten calendar days prior to the hearing date. (iv) The Department may require that additional information as to the basis for appeal be provided to the Department at any time prior to the hearing. (C) Notice of Hearing. (i) Upon receipt of a request for hearing, the Executive Director shall, within ten working days, set a date for the hearing. (ii) The Department shall issue a written notice to the petitioner, which shall include: (I) a statement of time, date, location, and nature of the hearing; (II) a statement of the legal authority and nature of the hearing; (III) a reference to the particular section of statutes, regulations and rules involved; and (IV) a short and plain statement of the reasons for the decision that is being appealed and the evidence on which the decision was based. (iii) If the Department is unable to state in detail the evidence and reasons for the decision at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, a more definite and detailed statement shall be furnished not less than three working days prior to the date set for the hearing. (iv) Petitioner shall be given no less than ten working days notice of the scheduled hearing. Notice shall be sent by registered or certified mail, return receipt requested. (D) Hearing examiner. The executive director shall select an impartial hearing examiner to preside at the hearing. The hearing examiner may not be an employee of Department, and the hearing examiner may be but is not required to be an attorney at law. The hearing examiner shall conduct the hearing in an orderly fashion and in accordance with the procedures outlined herein. It is the responsibility of the hearing examiner to fully consider information relevant to the complaint and to draft a fair proposed decision based on such information. (E) Conduct of Hearing. The proceedings and conduct of the hearing shall follow the rules promulgated in 1 TAC Chapter 155, State Office of Administrative Hearing, Chapter 155, Rules of Procedure, et seq. (F) Appeal to the Assistant Secretary, Administration on Aging, U.S. Department of Health and Human Services. Any petitioner whose appeal is denied by the Department may appeal to the Assistant Secretary on Aging. Such appeal shall be governed by the procedures outlined in the current 45 Code of Federal Regulations, Part 1321. (5) Designated Planning and Service Areas. The following are the currently designated planning and service areas in which the Texas Department on Aging operates aging programs for the elderly. (A) PSA 1: Armstrong, Briscoe, Carson, Castro, Childress, Collingsworth, Dallam, Deaf Smith, Donely, Gray, Hall, Hansford, Hartley, Hemphill, Hutchinson, Limpscomb, Moore, Ochiltree, Oldham, Parmer, Potter, Randall, Roberts, Sherman, Swisher, and Wheeler counties. (B) PSA 2: Bailey, Cochran, Crosby, Dickens, Floyd, Garza, Hale, Hockley, King, Lamb, Lubbock, Lynn, Motley, Terry, and Yoakum counties. (C) PSA 3: Archer, Baylor, Clay, Cottle, Foard, Hardeman, Jack, Montague, Wichita, Wilbarger, and Young counties. (D) PSA 4a: Collin, Denton, Ellis, Erath, Hood, Hunt, Johnson, Kaufman, Navarro, Palo Pinto, Parker, Rockwall, Somervell, and Wise counties. (E) PSA 4b: Dallas County. (F) PSA 4c: Tarrant County. (G) PSA 5: Bowie, Cass, Delta, Franklin, Hopkins, Lamar, Morris, Red River, and Titus counties. (H) PSA 6: Anderson, Camp, Cherokee, Gregg, Harrison, Henderson, Marion, Panola, Rains, Rusk, Smith, Upshur, Van Zandt, and Wood counties. (I) PSA 7: Brown, Callahan, Coleman, Comanche, Eastland, Fisher, Haskell, Jones, Kent, Knox, Mitchell, Nolan, Runnels, Scurry, Shackelford, Stephens, Stonewall, Taylor, and Throckmorton counties. (J) PSA 8: Brewster, Culberson, El Paso, Hudspeth, Jeff Davis, and Presidio counties. (K) PSA 9: Andrews, Borden, Crane, Dawson, Ector, Gaines, Glasscock, Howard, Loving, Martin, Midland, Pecos, Reeves, Terrell, Upton, Ward, and Winkler counties. (L) PSA 10: Coke, Concho, Crockett, Irion, Kimble, Mason, McCulloch, Menard, Reagan, Schleicher, Sterling, Sutton, and Tom Green counties. (M) PSA 11: Bosque, Falls, Freestone, Hill, Limestone, and McLennan counties. (N) PSA 12: Bastrop, Blanco, Burnet, Caldwell, Fayette, Hays, Lee, Llano, Travis, and Williamson counties. (O) PSA 13: Brazos, Burleson, Grimes, Leon, Madison, Robertson and Washington counties. (P) PSA 14: Angelina, Houston, Jasper, Nacogdoches, Newton, Polk, Sabine, San Augustine, San Jacinto, Shelby, Trinity, and Tyler counties. (Q) PSA 15: Hardin, Jefferson, and Orange counties. (R) PSA 16a: Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Liberty, Matagorda, Montgomery, Walker, Waller, and Wharton counties. (S) PSA 16b: Harris County. (T) PSA 17: Calhoun, Dewitt, Goliad, Gonzales, Jackson, Lavaca, and Victoria counties. (U) PSA 18a: Atascosa, Bandera, Comal, Frio, Gillespie, Guadalupe, Karnes, Kendall, Kerr, Medina, and Wilson counties. (V) PSA 18b: Bexar County. (W) PSA 19: Jim Hogg, Starr, Webb, and Zapata counties. (X) PSA 20: Aransas, Bee, Brooks, Duval, Jim Wells, Kenedy, Kleberg, Live Oak, McMullen, Nueces, Refugio, and San Patricio counties. (Y) PSA 21: Cameron, Hidalgo, and Willacy counties. (Z) PSA 22: Cooke, Fannin, and Grayson counties. (AA) PSA 23: Bell, Coryell, Hamilton, Lampasas, Milam, Mills, and San Saba counties. (BB) PSA 24: Dimmit, Edwards, Kinney, La Salle, Maverick, Real, Uvalde, Val Verde, and Zavala counties. sec.254.11. Designation of Area Agencies on Aging. The following procedures shall be used to select and designate area agencies on aging. (1) Eligible Entities. The Department shall provide opportunity for the following types of agencies to be designated as an area agency on aging; (A) an established office on aging which operates within a PSA; (B) any office or agency of a unit of general-purpose local government that is proposed by the chief elected official of the unit; (C) any office or agency proposed by the chief elected officials of a combination of units of general-purpose local government; or (D) any other public or private nonprofit agency, except any regional or local agency of the state. (2) Application Procedures. Applicants for area agency designation shall submit a written application to the Department no later than February 1 of the year of development of the state plan. The application shall include: (A) a description of the legal basis upon which the agency is organized; (B) an organizational description and chart of the agency; (C) a list of members serving on the governing board of the agency and the entities they represent; (D) job descriptions of those positions which the agency intends to staff; (E) a copy of the most current agency audit; (F) a copy of the agency's current approved financial plan; and (G) a narrative description of the agency's past relationships with agencies which are providing services to the elderly in their planning and service area. (3) Competing Applications. Any application for area agency designation which, if approved, would result in the replacement of an existing area agency or substantially impact upon the aging network within the PSA involved shall include: (A) written indication by resolution of 75% of the governing bodies of city and counties with the PSA involved; (B) documentation that existing services can be substantially improved through the proposed change in designation; and (C) assurance that no staff or board member of the agency has served on the staff or board of the existing area agency within the affected PSA, Department, or the Administration on Aging for a period of not less than two years prior to the date of notification of application. (4) On-Site Reviews. The local agency being considered for area agency designation shall provide an opportunity for on-site review and assessment by the Department to ensure that said agency has the capacity to perform the functions of an area agency. The on-site assessment shall include but not be limited to: (A) a review of the agency's administrative and fiscal management capability to conform with sec.254.3 of this title (relating to Support Documents); (B) a review of the agency's capability, through employment and retention of appropriate staff, to develop and administer an area plan for a comprehensive and coordinated system of services; (C) a review of the agency's capability to serve as the advocate and focal point for older Americans in the designated PSA involved; and, (D) a review of the agency's capability to furnish local financial resources and support as required by state and federal law. (5) Effective Dates of Designation. The Department shall designate an area agency in each PSA in which the Department decides to allocate funds under the Older Americans Act no later than March 31 of the year involved in the development of the state plan. Preference will be given to established area agencies and shall take into consideration the historical experience applicant agencies have had in coordinating, planning, and delivering services to the elderly. (6) Designated Area Agencies on Aging. The following is a listing, in alphabetical order, of area agencies which are currently designated in the State. Planning and service area number is indicated as follows: (A) Alamo Area Agency on Aging (18A); (B) Ark-Tex Area Agency on Aging (05); (C) Bexar Area Agency on Aging (18B); (D) Brazos Valley Area Agency on Aging (13); (E) Capital Area Agency on Aging (12); (F) Central Texas Area Agency on Aging (23); (G) Coastal Bend Area Agency on Aging (20); (H) Concho Valley Area Agency on Aging (10); (I) Dallas County Area Agency on Aging (04B); (J) Deep East Texas Area Agency on Aging (14); (K) East Texas Area Agency on Aging (06); (L) Golden Crescent Area Agency on Aging (17); (M) Harris County Area Agency on Aging (16B); (N) Heart of Texas Area Agency on Aging (11); (O) Houston-Galveston Area Agency on Aging (16A); (P) Lower Rio Grande Valley Area Agency on Aging (21); (Q) Middle Rio Grande Area Agency on Aging (24); (R) North Central Texas Area Agency on Aging (04A); (S) North Texas Area Agency on Aging (03); (T) Panhandle Area Agency on Aging (01); (U) Permian Basin Area Agency on Aging (09); (V) Rio Grande Area Agency on Aging (08); (W) South East Texas Area Agency on Aging (15); (X) South Plains Area Agency on Aging (02); (Y) South Texas Area Agency on Aging (19); (Z) Tarrant County Area Agency on Aging (04C); (AA) Texoma Area Agency on Aging (22); and (BB) West Central Texas Area Agency on Aging (07). sec.254.13. Department Responsibilities for Imposing Sanctions. (a) Background. When a grantee has failed to comply with the terms of a grant or contract which govern the use of monies appropriated under that grant or contract, or with Federal and/or State statutes, codes, and/or rules which detail the legal obligations and responsibilities incurred as a result of agreeing to the terms of a grant or contract, the Texas Department on Aging may take actions as may be legally available and appropriate to the circumstance. (b) Contractor/Grantee Responsibilities. A contractor or grantee responsible for compliance with the terms of the grant or contract shall: (1) comply, as applicable, with Federal and/or State statutes, rules and policies set forth in sec.254.3 of this title (relating to Support Documents); (2) comply with the requirements of approved contracts, plans, and/or grants, including all operational requirements for implementing such contracts, plans and/or grants; (3) meet routine and standard administrative requirements as published by the Department, including all budget documents and required reporting in a timely and correct manner, consistent with sec.260.1 of this title (relating to Area Agency on Aging Administrative Requirements) as published by the Department; (4) respond to requests by the Department for specific corrective action as a result of: (A) the area plan or area plan amendment review; (B) program and fiscal reviews and assessments; (C) investigation and response to complaints; (D) erroneous or incomplete information on proram performance reports; and, (E) other routine and standard administrative requirements which may be necessary to administer grants or contracts funded by the Department. (c) Department responsibilities. The Department shall take appropriate action to secure the continuing administrative compliance of the grantee. For failure to fulfill routine and standard administrative or operational requirements listed in subsection (b) of this section, the Department shall: (1) request compliance from the grantee agency by telephone simultaneously confirm the request in writing by certified mail, return receipt requested, specifying the items for which compliance is requested and the date on which such response is due to the Department; (2) if no response is received by the due date the Department shall notify the grantee by certified mail, return receipt requested, no later than three working days after the due date of the items for which compliance has not been demonstrated and the effective date of the sanction to be imposed, in the following sequence: (A) withholding of funds from the grantee agency on a temporary basis for specifically budgeted function or service or any part thereof, for failure to meet administrative and operational requirements listed in subsection (b) of this section. (i) These funds will be withheld until such time as the matter is resolved to the satisfaction of the Department, but no longer than 90 calendar days. (ii) Once compliance has been demonstrated, funds will be released to the grantee no later than ten working days from the date of compliance. (iii) If the matter is not resolved by the end of the 90-day period, the Department will notify the grantee of intent to impose the sanction listed in subparagraph (B) of this paragraph using the procedures in this section. (B) terminating the grant as a result of failure to comply as described in subparagraph (A) of this paragraph, using the following procedures: (i) request compliance and simultaneously confirm the request in writing by certified mail, return receipt requested, specifying the items for which compliance is requested; (ii) if no response is received in ten working days, make a written request to the grantee agency director, by certified mail, return receipt requested, requesting compliance and specifying the sanction to be imposed; and (iii) impose sanction on a grantee by issue of a letter of notification, by certified mail, return receipt requested, citing the items for which compliance has not been demonstrated, and the effective date of the sanctions to be imposed; (C) providing payment to the grantee for costs incurred under the terms of the grant until the date the termination is effective. Grants terminated through this process are subject to the grant close-out procedures adopted by the Department. (d) Dedesignation. The Department may withdraw an area agency designation whenever the Department, for specific reasons and after reasonable notice and opportunity for a hearing as provided in sec.sec.257.11-257.20, 257. 22, and 257.23 of this title (relating to Hearing Procedures for Area Agencies) , finds that: (1) the area agency does not meet the requirements of federal or state regulations, as specified in sec.254.3 of this title, in the current or previous funding periods; or (2) the area plan or area plan amendment is not approved, as specified in subsection (b)(2) of this section; or (3) there is substantial failure to meet routine and standard administrative requirements as specified in subsection (b)(3) and (4) of this section in the current or previous funding periods. (e) Notification of withdrawal of area agency designation. If the Department contemplates withdrawal of designation, action shall be taken to assure that appropriate individuals and agencies are informed in advance of the reasons which make it necessary. Correspondence shall be prepared summarizing the basis for the action. This correspondence shall be mailed, by certified mail, return receipt requested, to the following: (1) the Governor; (2) State Senators and Representatives of the districts where the grantee provides services; (3) the Chairman of the Board of the Texas Department on Aging and all board members; (4) the Texas Department on Aging Advisory Council members; (5) County judges and mayors of cities and towns in the affected planning and service area; (6) the board of governors of the grantee agency; (7) service providers contracted for by the grantee agency; and (8) the area agency on aging advisory council. (f) Notification of the Grantee/Contractor. The grantee shall be notified, by certified mail, return receipt requested, ten working days prior to the effective date of the dedesignation as an area agency on aging. Such notification shall explain the right of the agency to appeal such decisions as outlined in sec.257.11. (1) Emergency situations. If, in the Department's judgement, an emergency situation exists as to seriously threaten the health and welfare of a significant segment of the elderly population, the dedesignation/termination may be made effective immediately and so stated in the letter of notification to the grantee. Emergency dedesignation does not preclude processing appeals under sec.257.11 of this title (related to Designation of Area Agencies on Aging). (2) Administration of the grant. If a grant to an area agency is terminated, the Department may administer the area plan during the period of termination or designate a new grantee. (g) Procedures following withdrawal of designation. If the Department withdraws an area agency's designation, the Department shall take the following action. (1) Notify appropriate entities. The Department shall notify, by certified mail, return receipt requested, the Assistant Secretary on Aging, Department of Health and Human Services, and those individuals and agencies specified in subsection (e) of this section. (2) Continue services. The Department shall provide a plan for the continuity of services in the affected planning and service area and will: (A) discontinue reimbursement to the grantee concerned; (B) notify service providers to submit requests for reimbursement directly to the Texas Department on Aging or to the designated contractor/grantee; (C) place a notice in local and regional newspapers advising that claims against the grantee related to Older Americans Act programs shall be referred to the Texas Department on Aging; and (D) designate an interim area agency in the planning and service area in a timely manner, or designate a new area agency in the planning and service area in a timely manner. (3) Administration by the Department. If necessary to ensure continuity of services in a PSA, the Department may for a period of up to 180 days after withdrawing designation of an area agency: (A) perform the area agency responsibilities; (B) assign the responsibilities of the area agency to another agency in the planning and service area; (C) assign the responsibility to an area agency on aging in a contiguous planning and service area; (D) if necessary, may request an extension of the 180-day limit from the assistant secretary. The Assistant Secretary may extend the period an additional 180 days if the need for the extension is satisfactorily demonstrated. 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 July 20, 1994. TRD-9445359 Mary Sapp Executive Director Texas Department of Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Chapter 255. State Delivery Systems Designation of Area Agencies on Aging 40 TAC sec.255.1 The Texas Department on Aging adopts the repeal of sec.255.1, concerning definitions use in Older Americans Act programs, without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1805). This rule has been relocated elsewhere in the Department's portion of the administrative code. Without adoption of this repeal, recodification of the rules could not be accomplished. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate the rules governing the operation of the Department. 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 July 20, 1994. TRD-9445361 Mary Sapp Executive Director Texas Department of Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Planning and Service Area Designation 40 TAC sec.sec.255.11-255.13 The Texas Department on Aging adopts repeal of sec.sec.255.11-255.13, concerning application for designation as a planning and service area, designation of planning and service areas, and designated planning and service areas, without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1805). These rules have been relocated elsewhere in the Department's portion of the administrative code. Without adoption of the repeals, recodification of the rules could not be accomplished. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate the rules governing the operation of the Department. 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 July 20, 1994. TRD-9445362 Mary Sapp Executive Director Texas Department of Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Area Agency Designation 40 TAC sec.sec.255.31-255.34 The Texas Department on Aging adopts the repeal of sec. sec.255.31-255.34, concerning application for designation for area agencies on aging, designation of area agencies on aging, and designated area agencies on aging, without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1806). These rules have been revised and relocated elsewhere in the Department's portion of the administrative code. Without adoption of the repeals, recodification of the rules could not be accomplished. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate the rules governing the operation of the Department. 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 July 20, 1994. TRD-9445363 Mary Sapp Executive Director Texas Department of Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Chapter 257. Hearing Procedures General Hearing Provisions 40 TAC sec.sec.257.1-257.3 The Texas Department on Aging adopts the repeal of sec. sec.257.1-257.3, concerning definitions, interested persons, and incorporation of Administrative Procedure and Texas Register Act, without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1806). These rules have been relocated elsewhere in the Department's portion of the administrative code. Without adoption of the repeals, recodification of the rules could not be accomplished. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate the rules governing the operation of the Department. 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 July 20, 1994. TRD-9445364 Mary Sapp Executive Director Texas Department of Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Hearing Procedures for Applicants for Planning and Service Area Designation 40 TAC sec.sec.257.31-257.36 The Texas Department on Aging adopts the repeal of sec. sec.257.31-257.36, concerning right to a hearing, request for a hearing, notice of hearing, hearing examiner, conduct of hearing and appeal to the commissioner, without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1806). These rules have been relocated elsewhere in the Department's portion of the administrative code. Without adoption of the repeals, recodification of the rules could not be accomplished. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate the rules governing the operation of the Department. 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 July 20, 1994. TRD-9445365 Mary Sapp Executive Director Texas Department of Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Chapter 259. Board on Aging Policies and Procedures 40 TAC sec.sec.259.1-259.8 The Texas Department on Aging adopts the repeal of sec. sec.259.1-259.8, concerning functions, board composition, chairman of the board, compensation, entitlements, and the appointment of an executive director, without changes to the proposed text as published in the March 15, 1994 issue of the Texas Register (19 TexReg 1807). These rules have been relocated elsewhere in the Department's portion of the administrative code. Without adoption of the repeals, recodification of the rules could not be accomplished. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate the rules governing the operation of the Department. 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 July 20, 1994. TRD-9445366 Mary Sapp Executive Director Texas Department of Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Chapter 260. Area Agency on Aging Administrative Requirements 40 TAC sec.sec.260.1, 260.3, 260.5, 260.7, 260.9, 260.11, 260.13 The Texas Department on Aging adopts new sec.sec.260.1, 260.3, 260.5, 260.7, 260.9, 260.11, and 260.13, concerning the administrative requirements of Area Agencies on Aging, with changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1807). The new sections establish administrative requirements for area agencies on aging, the access and assistance program, the information and assistance service, the case management service, the legal awareness service, ombudsman services, and the implementation of the options for independent living program, and reduce, refine and clarify the rules area agencies require to operate Older Americans Act Programs in Texas. These rules replace previous rules and reduce, refine and clarify the policies and procedures under which the Department operates Older Americans Act Programs in Texas. The Texas Association of Regional Councils, Golden Crescent Area Agency on Aging (AAA), Concho Valley AAA, Texas Association of Area Agencies on Aging, South Plains AAA, Lubbock Meals on Wheels, North Texas AAA, Houston-Galveston AAA, Alamo Area Agency Advisory Council, the staff of the Texas Department on Aging, the Department on Aging Board and Advisory Council, the Attorney General's Office, the Legal Aid Society of Texas and the general public commented on the rules. In sec.260.1, Area Agency on Aging Administrative Requirements, several comments were received regarding definitions. One commenter suggested adding "or as defined below" to ensure that readers understood that targeting requirements were also specified in the Americans With Disabilities Act. The Department concurred and amended the text. One commenter suggested that several definitions were too specific. Where wording was suggested, the Department amended or rejected proposed wording based on close analysis of what was appropriate. The Department recommended that several definitions be included that were not in the original text and that several be moved from one section of the rule to the definition section. These changes were made and definitions were renumbered accordingly. Several commenters recommended replacing the definition of "advocacy" with the one located in sec.260.3(d). This was accomplished. One commenter recommended a rewording of the definition for Benefits Counseling as being to nebulous. This definition was reworded. In the definition of "conflict of interest," one commenter suggested that the phrase "ownership or investment in a long-term care service" was too broad. The Department concurred and wording has been altered. The Department recommended a change in wording from "been employed" to "employed within a one year waiting period." This was accepted and incorporated into this definition. Two commenters recommended a three year waiting period following employment in a nursing facility. Department disagreed with this suggestion as it set an artificial limit on eligibility for employment. In the "homemaker" definition, three commenters recommended replacing this with the definition contained in the Health and Human Services Dictionary. The Department concurred and has made this change. The Department recommended that the definition of "information and assistance" be relocated to the definition section from sec.260.3 and that "information and referral" be deleted. This change was made. The Department recommended that the "activities of daily living" definition be included since it is referenced in sec.260.7. This was accomplished. Four commenters recommended replacing the definition of "outreach" with the one located in sec.260.3 (d). This was accomplished. Two commenters recommended that "professional" be revised to delete specific references to Ombudsman. The Department concurred since this definition is not substantially different from the previously stated requirements for case manager. The Department recommended that subparagraphs (A)-(I) be deleted from the definition on "related disorders" as they duplicated those listed in the definition for "Major life activities." This duplication has been eliminated in the adopted text. The Department recommended that the definition for "service authorization" be moved from sec.260.3 to this section. This was accomplished. The Department recommended that the definition for "Texas Department of Human Services" was inappropriate for the Department's list of definitions. This definition was eliminated. The Department recommended that the definition for "transportation" be deleted as it was repeated in sec.270.2. This was accomplished. Several comments suggested that "one unit of legal awareness should equal one contact" be used for the definition of this unit of service. The Department concurred and has revised this definition. In sec.260.1(b) two commenters suggested that area agency director's compensation method be revised based on an expansion of their duty requirements. The Department concurred and has revised this requirement to realistically account for time spent in other functional areas of service delivery in the agency subject to the Department's approval on an individual agency basis. Several comments suggested that sec.260.1(f)(3)(C), dealing with targeting, was unclear. The Department concurred and has amended the language. In subparagraph (E), the Department noted a clerical error which was corrected with the addition of "as specified in this section." Two commenters noted that sec.260.1(g) seemed to repeat language in sec.254.13(c). No change was made as the Department included this paragraph only as a guide for referral and did not include the full text of the reference. In sec.260.3, Access and Assistance Program, the Department noted the inappropriate use of "chapter" and replaced this misuse with "section" where appropriate. In subsection (b) Program Outcomes, three commenters recommended a revision to specify that the Department would use a "consistent methodology for determining and measuring outcomes." The Department concurred and has revised the text. In subsection (c), three commenters recommended that the components of the access and assistance program be identified. The Department concurred and has amended the language. In (c)(1) two commenters recommended the elimination of "at various points along the continuum" as having little meaning. The Department concurred and has eliminated this wording in the adopted text. In (c)(3), the Department noted that there was an incorrect reference. This reference was corrected. In (c)(5), referring to case load, three commenters said this conveyed no meaning. The Department concurred and has eliminated this subparagraph. In (c)(6) of the proposed text, one commenter suggested a change in wording to enhance understanding of this requirement. Department concurred and has added "which, if any, of the available" to this language. In (c)(7) of the proposed text, two commenters proposed eliminating "believe in the empowerment of" and replacing it with "assist." The Department concurred and has made this change. In (d), the Department recommended moving the definitions for Advocacy, Information and Assistance, Benefits Counseling, Ombudsman service, service authorization, and case management to the definitions section. This was accomplished. One commenter suggested "service authorization" be more clearly identified and followed up with a standard. The Department disagrees as the definition is clear in indicating that "service authorization cannot occur separately from direct purchase of service processes. Three commenters stated that "service authorization and case management must be clearly identified as a required agency function rather than optional area agency function under access and assistance and that not so doing promotes inconsistency and associated problems. One commenter suggested using "service" rather than "function" throughout this section for clarity. One commenter stated that "access and assistance" should be separate from direct delivery of services to assure coordination and negate conflict of interest. One commenter stated that the rules as written appear to create a lack of support from the Department. One commenter stated that these services should not be permitted as an option and one commenter agreed with the flexibility that the wording provided. The Department does not concur with the objections. The Department believes that providing options to grantees promotes service flexibility, more effectively contributes to service delivery and provides adequate support to area agency functions. The Department has made every effort to remove barriers that would prohibit an area agency from directly performing the access and assistance services. However, the Department believes that if in certain areas these services can be better performed by contracting, the area agencies must have this option to be effective in meeting all situations. The use of "service" is consistent with usage throughout the rules. In (d)(4), one commenter stated that it would be helpful for the Department to specify the format and type of documentation that will demonstrate integration of access and assistance functions. The Department concurred and has incorporated this information into an area agency self evaluation checklist which has been distributed to the network. In sec.260.5, Information and Assistance Service, the Department noted that "section" should replace the use of "chapter" to conform to style requirements. The Department has amended the text in this regard. In (g)(3), one commenter recommended deletion of this paragraph as information and assistance is not funded as an emergency service and area agencies do not receive emergency calls, noting that 911 would accept these calls. The Department does not concur as this paragraph gives flexibility to establish the linkages needed. Consequently, this paragraph was rewritten to delete the word "emergency" and a separate paragraph (4) was developed to incorporate procedures for establishing linkages outside of regular office hours with emergency response organizations. In subsection (j) of this section, the Department recommended paragraph (6) be rewritten to delete "meals" and add "day activity and health services" as meals are not Medicaid reimbursable. This was accomplished. In (k) (1), one commenter noted that the Department may not be the primary funding source for the information and assistance service and that the paragraph should take this into consideration. The Department concurred and has amended the text. In subsection (n), the Department noted and corrected a reference. In sec.260.7, Case Management Services, the Department recommended that all definitions be relocated to sec.260.1(a). This was accomplished. In (b), a commenter recommended including travel time in the unit of case management service, stating that the result would be "consistent and efficient tracking" of service volume. Another commenter recommended deleting the reference to "unit rate," since the service is paid on cost reimbursement basis. While the Department agrees that travel time and cost are legitimate expenses of providing the service, and the paragraph so states, the Department does not concur that time spent in travel should be counted as time providing the service. The Department has revised the wording to emphasize the fact that costs of travel are allowable and reimbursable. Time spent in travel will reduce the available time for service provision, and consequently reduce the number of hours, or units, of service that can be provided, thereby affecting the cost of each hour, or unit. The Department has replaced the term "unit rate" with "cost per hour of case management service." Number of persons served, number of hours of service provided, and cost per hour of service are all performance measures for which the Department is accountable. Two other commenters stated that "Since this is no longer reimbursed by units, it needs to be amended to reflect cost reimbursement." The Department concurred and has amended the text. In (d) of the proposed text, one commenter stated that sec.260.7(d)(1)-(3) limit case management service only to "medically needy" persons, and imply that those persons would have to be bed-ridden to qualify for assistance from a case manager. The Department does not concur with this interpretation. Functional impairment is not the same thing as medical need. Likewise, the Department does not interpret these paragraphs to mean that a person should, or must, be bed- ridden in order for case management to be provided. The Department has revised paragraph (4) to clarify that not every person who meets the target criteria specified in (1)-(3) will necessarily need or want the assistance of a case manager. Subsection (c)(1)(B) of the proposed text was revised in response to the Department's comment recommending deletion of "meals" and addition of "day activity and health services," since meals are not Medicaid reimbursable, and since day activity and health service is Medicaid reimbursable. One commenter recommended a time limit for completion of the care plan be included in sec.260.7. This requirement is stated in sec.260.7(g)(5). The Department recommended that a paragraph be added to clarify that service authorization is a responsibility of case managers. This was accomplished by adding subparagraph (E) to subsection (e)(4). Regarding subsection (f) of the proposed text, one commenter stated "it should be clear that the case management subcontractor should be independent and separate from the direct delivery of other services to assure better coordination and prevent conflict of interest." The Older Americans Act, sec.306(a)(20), establishes specific language regarding prevention of conflict of interest and is the basis for including this in the proposed text. Three commenters recommended that the Department require that case management be provided by an area agency, and that references to provision of case management by a subcontractor be deleted. The Department does not concur, for the reasons stated previously in response to comments on sec.260.3(d)(1), (2), and (3). One commenter stated that Title III funds should not be allowed to be used for case management, stating that such use will result in reduction of Title III funds for congregate meals and senior centers. The Department believes that case management, meals and senior centers are all needed services. It is the responsibility of the area agency to determine what combination of services will be provided locally with Title III funds. The Department cannot prohibit an area agency from funding a service that is allowable under the Older Americans Act. The Older Americans Act and the Department encourage the provision of case management service to help frail older persons obtain in-home and the other services they need to maintain independence at home for as long as possible. The Older Americans Act and the Department also encourage the provision of congregate meals to targeted populations. In subsection (i) of the proposed text or (h) of the adopted text, five commenters stated that education and experience requirements for case managers were too stringent, and tended to "over-professionalize" case management. One of the commenters also stated that there is no apparent reason for case managers to be required to have more education than staff ombudsmen, benefits counselors, or I&A staff. One commenter stated that staffing requirements and minimum education requirements should be "left up to each area agency." Another commenter stated that the requirements should not be changed, stating that "if the network is to present the most professional alternative when seeking to do business with Texas Department of Human Services and others, the professional credentials of staff must be unquestionable." The Department recognizes that in many instances the same individual staff person may be responsible for two or more of the access and assistance functions. Conflicting staffing requirements for each of those functions can be confusing and, at times, result in less than cost effective decisions regarding staff assignments. The Department strongly believes that it is essential that access and assistance personnel be professional, qualified, and competent to provide assistance to vulnerable persons. The Department believes that the modified requirements regarding case manager qualifications will result in assignment of quality personnel to the access and assistance positions, while at the same time allowing local flexibility in determining who is best qualified. The Department noted that it had referenced a manual which as yet is not available. The Department has deleted this reference pending the manuals issue. The "Access and Assistance Notebook," compiled and distributed to area agencies and their staff in November 1993, will be integrated into the referenced manual. The Department noted that incorrect references were used in the proposed subsections (l) and (n) and has corrected the references in the adopted version. In sec.260.9, Legal Assistance/Legal Awareness, two commenters felt that the funds identified in (a) should have been allocated using the Department's funding formula, rather than by competitive process. The policy to issue these funds by request for proposal was made by the Texas Board on Aging in December, 1993. The policy was made in light of the limited funds available under this Title, and due to an additional Board decision that the funds be used to expand current services and programs. Distributing the funds by formula allocation would result in many area agencies receiving very small amounts of funding, with no practical application to expand activities. One commenter noticed that the word in (a)(2) should be "Advocacy," not "Assistance." The Department concurred and has amended the text. One commenter noted that the provision in (a)(3), as reads "shall be in addition to legal services furnished with funds from other services," is unrealistic since services provided by legal providers are funded from multiple sources and there is no clearly demarcated line where, for a given client, the other funding sources stop and these funds begin. This commenter also suggested that such wording may have the untenable result of local service providers eliminating older persons from their own priorities of populations to be served. The Department concurred that funding sources apply to all aging services, as well as legal assistance and the wording was amended to be consistent with the wording in sec.307(a)(15)(d) of the Older Americans Act, and to assure providers that funds from other sources are used to serve a proportionate share of older persons. In (e), the Department noted that wording should be added to be consistent with other area agency staff qualifications in the access and assistance program and that extraneous words were in this paragraph. "Professional staff" was added and redundant wording was deleted. The Department noted that additional references were needed in (f)(1) and amended the text to include these references. One commenter noted that subsections (f) (2) and (3) are the only two ways that legal services providers can receive compensation for rendering legal services to the elderly in that "appropriate and timely referral mechanisms" will result in either referrals made only by the benefits counselor to the legal provider, or the provider encouraging the client to waive his attorney/client privilege so that he can be "billed" to the area agency. The Department does not concur and will retain this wording as there is nothing in the paragraph that requires the legal service provider to reveal the name, or other identifying information of the client in order to be compensated for service. One commenter took exception to this section because it singles out providers funded by that commenter, and that "capacity" to serve the person is difficult to determine, given the multiplicity of funding sources and the wide variance in duration and intensity of existing or potential cases. Additionally, the commenter feels that this section limits service to older persons who are neither low income nor who have legal problems of a nature that falls within the priorities of the provider. The Department concurred, but points out that the intent of this subsection is addressed in the previous paragraph, (f)(4), of the proposed rule. One commenter feels that overall, the rules contained in this entire sec.260.9 violate the provision in the Older Americans Act forbidding area agencies from requiring legal providers to reveal information protected by the attorney-client privilege, particularly regarding referral and reporting. The Department does not concur. This wording will remain, as the Department sees nothing in (f)(3) or (h) that requires legal providers to report information that would reveal client names or otherwise violate confidentiality protected by the attorney-client privilege. In sec.260.11, Ombudsman Services, one commenter disagrees with the regional program being a subdivision of the Office of the State Long-Term Care Ombudsman as they work for the Councils of Government. The Department does not concur. The Older Americans Act, as reauthorized, permits this designation in sec.712(a)(5)(A) of the Act. The Department affirms that regional programs should be held accountable for maintaining ratios of certified volunteers to licensed nursing facilities, as prescribed by the LBB and agrees with the ratio requirement. Regional programs should be consistent with State requirements. The Department has amended the text accordingly. One commenter requested definition of "certain classes" of volunteers. The Department does not concur. The intent of this statement was to afford liability for selected friendly visitor programs currently operating in the State. Further definition of the term would limit flexibility of the office in affording the immunity for good faith efforts of volunteers. One commenter stated that substandard conditions are reported to other agencies and regional programs have no control over resolution. The Department disagrees with changing this statement, as regional programs are responsible for knowing conditions in facilities and assuring that problems are resolved, whether by referral or directly by the regional program. Involvement with the facility does not cease when a problem is referred to another agency. In sec.260.13, Implementation of the Options for Independent Living Program, a commenter recommended that "priority should be given to existing Options projects in good standing until such time that the Department receives sufficient funding for statewide implementation of the program." The Department believes that all area agencies should have the opportunity to apply for and obtain Options funding. Additionally, "existing projects in good standing" could be expected to have an advantage over new applicants in any competitive process, since they will have a proven history of meeting the program requirements. The selection criteria are more appropriately placed in the Request for Proposal, rather than in rules. New language has been inserted to clarify this concept. The Department noted in (e)(4)(B) that a reference required corrections and that additional language was needed for clarity. The text was amended accordingly. One commenter recommended deletion of the word "must" and the use "may" in (f)(1)(C) concerning the package of support services to be made available. The commenter stated that all the services listed may not be available, nor necessarily "the appropriate mix." The Department does not concur as the statute establishing the Options program (Human Resources Code Chapter 101, sec.101.044) requires that the listed services be available for Options clients. This section does not state that only these services and no others are to be available, nor does it state that each Options client must receive each and every service. In (f)(2)(A), the Department has substituted "personal assistance" for the term "homemaker" and has changed all previous references to this term to be consistent with current terminology adopted by all the health and human service agencies. Finally, in (f)(5)(B), a commenter suggested increasing the limit to $1,500 on residential repair service. The Department does not concur as increasing this amount could result in decreasing the number of people who receive the service. The new sections are proposed under the Human Resources Code, sec.101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. sec.260.1. Area Agency on Aging Administrative Requirements. (a) Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Definitions relating to targeted populations are as outlined in the Older Americans Act, as amended, and the Americans with Disabilities Act of 1990, as amended, or defined as follows. (1) Access-All methods used to make information and assistance available to potential inquirers and accessible to specialized populations. (2) Accessible-Without physical, cultural, language, geographical, financial, or psychological barriers. (3) Activities of Daily Living (ADLs)-Tasks that are essential to independent living such as bathing, dressing/undressing, eating, toileting, continence, transfer in/out of bed or chair, and indoor mobility. (4) Advocacy-Actions by or on the behalf of individuals and/or groups to ensure that they receive the benefits and services to which they may be entitled, and to ensure that their rights guaranteed by law are protected and enforced. (5) Alzheimer's Disease-A progressive, degenerative disease that attacks the brain and results in impaired memory, thinking, and behavior. (6) Benefits Counseling-Legal awareness or legal assistance services that assist seniors in claiming the various kinds of benefits to which they may be entitled. Activities may include legal or other assistance in completion of insurance or application documents, and assistance with problems with Social Security, Medicaid, pensions or other benefits. (7) Black-A person of African-American decent, including those from the Caribbean Islands, the Dominican Republic, or Haiti. (8) Broker-Arranger of services. (9) Case Management-An ongoing process (also known as service management), which includes assessment, service plan development, arranging of comprehensive and unified services, follow-up, ongoing monitoring of an individual's or family's status and the services delivered, and periodic review, with any necessary revision of the service plan. (10) Case management unit of service-One unit of service equals one hour. A unit is defined as that time which is spent by the caseworker, or qualified designee, engaged in working on an eligible client case. A unit does not include travel time, staff training, program publicity, or direct client services other than case management. Travel time, staff training and program publicity are allowable and reimbursable expenses. (11) Certified volunteer-An individual who has been selected by a regional program to serve as an advocate for long-term care facility residents and participate in the ombudsman program. Certified volunteers shall successfully complete an internship, or equivalent experience, as determined by the office, and complete required training prior to being certified and prior to engaging in independent complaint resolution. A certified volunteer shall be a representative of the office. (12) Classification system-A system which is used to categorize available human services in a standard manner to simplify retrieval of service information, increase the reliability of planning data, make evaluation processes consistent, and facilitate comparisons of data. (13) Clients or recipients of services-Persons who reside in settings defined as a long-term care facility in this subsection, and their families. (14) Conflict of interest-A representative of the Office of the State Long- Term Care Ombudsman, paid or volunteer, or an immediate member of his/her family, who has one or more of the following: (A) direct involvement in the licensing or certification of a long term care facility or of a provider of a long term care service; (B) ownership or direct investment interest in a long-term care service; (C) employed by or participates in the management of a long-term care facility; (D) receives or has the right to receive, directly or indirectly, remuneration under a compensation arrangement with an owner or operator of a long term care facility; or (E) has a family member residing in a long-term care facility in which the representative is assigned or provides advocacy. (15) Department-The Texas Department on Aging, the single state agency for Older Americans Act programs. (16) Developmental disability-A severe, chronic disability attributable to a mental or physical impairment, or combination of both that: (A) is manifested before age 22; (B) is likely to continue indefinitely; (C) results in substantial limitations in three or more of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, and economic self- sufficiency; and (D) results in the need for individually planned and coordinated services lifelong or over an extended period of time. (17) Education and training-Providing the experience and/or knowledge for clients to acquire skills, in a formal or informal, individual or group, setting. In the Options program, this service is directed to older persons and their caregivers to help them improve their abilities in responding to their health care needs and limitations in overall functioning capacity. (18) Emergency Response System (ERS)-Services provided to the homebound, frail elderly using an automatic monitoring system to link them to emergency medical services when life and/or safety are in jeopardy. These ERS services include the installation of the individual monitoring unit, training associated with the use of the system, periodic checking to assure that the unit is functioning properly, equipment maintenance calls, response to an emergency call by a medical professional, paraprofessional or volunteer, and follow-up with the client. (19) Follow up-Contacting by telephone, correspondence or in person the inquirers and/or the agency to which referred, to verify that linkage has been established between the inquirer and the agency to which referred. (20) Frail-An older person who: (A) is unable to perform at least two activities of daily living without substantial human assistance, including verbal reminding, physical cuing, or supervision; and (B) requires substantial supervision due to a cognitive or other mental impairment and behaves in a manner that poses a serious health or safety hazard to himself or others. (21) Friendly visitor-A volunteer who does not participate in complaint resolution. Friendly visitors receive orientation and may receive local training but do not receive certification. (22) Grantee-An eligible entity awarded funds by the Texas Board on Aging to provide services funded by the Department. (23) Hispanic-A person with a heritage originating from Mexico, Spain, Puerto Rico, Central America, South America, or any other area where Spanish is the native language. (24) Home delivered meals-Hot, cold, frozen, dried, canned or supplemental food (with a satisfactory storage life) which provides a minimum of one-third of the daily recommended dietary allowances (RDAs) as established by the Food and Nutrition Board of the National Academy of Sciences-National Research Council, and which is delivered to an eligible person in his/her place of residence. (25) Homemaker-A service provided by trained and supervised homemakers involving the performance of housekeeping/home management, meal preparation and/or escort tasks, provided to individuals who need assistance with these activities in their place of residence. The objective is to help the recipient sustain independent living in a safe and healthful environment. (26) Information and assistance-Services which inform, guide, direct and link individuals to appropriate human service resources. This may include individual client screening and/or assessment, which is a process of gathering and analyzing all pertinent information to identify an individual's strengths and needs for the purpose of determining a plan to assist the individual in the achievement of objectives and goals. (Used interchangeably with the term information and referral). (27) Information giving-The process of providing basic or detailed information about resources to an inquirer by a staff person. (28) Information and referral service-See information and assistance. (29) Instrumental activities of daily living (IADLs) -Tasks which may not need to be done every day (like ADLs), but which are nevertheless important for living independently: meal preparation, housework, laundry, shopping, taking medicines, getting around outside, transportation, money management, and telephone use. (30) Inquirer-Any person or organization seeking assistance from the system. (31) In service-A planned educational effort conducted or coordinated by professional staff or certified volunteers. (32) Legal assistance-Advice and representation by an attorney (including assistance by a paralegal or law student under the supervision of an attorney), or counseling or representation by a nonlawyer where permitted by law, to older individuals with economic and social needs. Legal assistance activities include the following. (A) Advice/Counseling-A recommendation made to a client regarding a course of conduct, or how to proceed in a matter, given either on a brief or one-time basis, or on an ongoing basis, and given either in person or by telephone. (B) Document preparation-Personal assistance given to a client which helps him in the preparation of necessary documents relating to public entitlements, health care/long-term care, individual rights, planning/protection options, and housing and consumer issues. (C) Representation-Advocacy on behalf of a client in protesting or complaining against a procedure, or seeking special considerations, appealing an administrative decision, or representation by an attorney of a client or class of clients in either the state or federal court systems. (33) Legal awareness-The dissemination of accurate, timely and relevant information, eligibility criteria, requirements and procedures, to older Texans about public entitlements, health/long-term care, individual rights, planning/protection options, and housing and consumer issues. (34) Long-term care facility-A facility that is licensed or regulated or that is required to be licensed or regulated by the Texas Department of Human Services. (35) Low income-A level of income (as defined by the federal Office of Management and Budget), below which a person or persons is considered to be living in poverty. (36) Major life activities-Functions such as: (A) self care-daily activities which enable a person to meet basic life needs for food, hygiene and appearance; (B) receptive and expressive language-communication involving verbal and/or non-verbal behavior enabling the individual to both understand others and to express ideas/information to others; (C) learning-ability to acquire new behaviors, perceptions and information, and to apply experiences in new situations; (D) mobility-ability to use fine and gross motor skills. Ability to move one's person from one place to another with or without mechanical aids; (E) self direction-management and taking control over one's social and personal life. Ability to make decisions affecting and protecting one's own interests; (F) capacity for independent living-ability to live without extraordinary assistance from other persons, especially to maintain normal societal roles; (G) economic self sufficiency-absence of dependence on family or public assistance for financial support; (H) cognitive functioning-general cognitive competence; and (I) emotional adjustment-self-esteem, self-confidence, and emotionally stability. (37) Minority-A person in one or more of the following four racial/ethnic groups: Black, Hispanic, Asian/Pacific Islander, and Native American. (38) Office-The Office of the State Long-Term Care Ombudsman, a division of the Texas Department on Aging. (39) Ombudsman intern-A volunteer who has been admitted to the regional training program as a potential certified volunteer ombudsman. (40) Outreach-Methods that seek to increase the availability and utilization of services by ensuring that a particular individual or group is aware of available services and encouraged to participate. (41) Personal assistance-Assisting another person with tasks which that individual would typically do if they were able. This covers hands-on assistance in all activities of daily living. (42) Professional-Refers to an individual who has obtained a four year bachelors degree in aging related areas or human services, but may include an individual who does not have a four year degree, but who has qualifying experience as a substitute for a degree. Such substitution shall be consistent with the employing entity's personnel policies. (43) Referral giving-Active participation in linking the inquirer with needed services after assessing the inquirer's needs and suggesting appropriate resources. (44) Regional program-A provider and its implementation of these standards on a sub-state level. Regional programs are area agencies on aging or other entities, as defined by the Board on Aging, Texas Department on Aging. (45) Related disorders (dementia)-The loss of intellectual functions (such as thinking, remembering, and reasoning), not caused by Alzheimer's Disease, of sufficient severity to interfere with an older person's daily functioning, including as listed in paragraph (36) of this subsection concerning major life activities. (46) Residential repair-Services consist of repairs or modifications of client occupied dwellings which are essential for the health and safety of the occupants. This also includes providing limited housing counseling and moving expenses where repairs or modifications will not attain reasonable standards of health and safety. (47) Resource file-An organized, cross-indexed file of information on services and programs in the area covered by the information and assistance service. (48) Respite care- (A) In home respite care-an array of services provided to dependent older persons who need supervision. Services are provided in the client's home environment on a short-term, temporary basis while the primary caregiver is unavailable or needs relief. In addition to supervision, services may include meal preparation, housekeeping, assistance with personal care and/or social and recreational activities. (B) Institutional/facility based respite care-an array of services provided in a congregate or residential setting (hospital, nursing home, adult day care center) to dependent older persons who need supervision. Services are offered on a short-term, temporary basis while the primary care giver is unavailable or needs relief. In addition to supervision, services may include, when appropriate, meals, social/recreational activities, personal care, monitoring of health status, medical procedures, and/or transportation. (49) Rural-Any county outside an identified metropolitan statistical area (MSA). (50) Service authorization-A process which includes determining eligibility for service(s), and using direct purchase of service (DPS) procedures to obtain and initiate one or more services. (51) Staff ombudsman-The professional staff person at the regional level who directs ombudsman program activities. The staff ombudsman shall be appointed by the regional program and so designated by the Executive Director, Texas Department on Aging, and under state law shall be granted access to long term care facility resident records. The staff ombudsman shall be a representative of the office. (52) State ombudsman-The person designated by the Executive Director, Texas Department on Aging, as Chief Administrator of the Office of the State Long-Term Care Ombudsman. The state ombudsman is accountable to the Executive Director, Texas Department on Aging, for program and personnel matters. (53) Targeting-The focusing of service provision efforts on those populations identified in the Older Americans Act of 1990, sec.306(a)(5)(B)(i), as amended. (54) Units of service for legal assistance and legal awareness-One unit of legal assistance shall equal one hour. One unit of legal awareness shall equal one contact. (b) Structure. (1) Area agencies shall develop and maintain an organizational structure which shall effectively administer Older Americans Act Programs and responsibilities and achieve those outcomes prescribed in the Older Americans Act, sec.306. (2) The organizational structure shall be reflected through job descriptions, staffing plans, and organizational charts and be included in the area plan submitted in accordance with submission requirements established by the Department. (c) Titles. Each individual selected to perform the duties of the full time director shall be identified on the staffing pattern and in job descriptions as either director, area agency on aging, or as manager, area agency on aging. (d) Compensation. Area Agency on Aging Directors and Managers shall be budgeted based on time spent performing the duties of administration and management, and the time spent in direct service delivery as indicated in the approved area plan, and will be subject to approval on an individual basis by the Department. (e) Monitoring. Area agencies shall conduct not less than one annual on-site fiscal and program monitoring of service providers. Fiscal and program monitoring shall be conducted concurrently if possible. (f) Targeting Service Delivery. (1) Purpose. These rules set policies for targeting Older Americans Act services to ensure that those most in need receive services and to reduce individual and social barriers to economic and personal independence for older persons. (2) Scope. These rules shall apply to all area agencies. (A) All area agencies shall comply with the provisions on targeting contained in the Older Americans Act, as amended. (B) All area agencies shall comply with the provisions of the Americans with Disabilities Act of 1990, as amended. (3) Administrative requirements. (A) Each area agency shall identify the targeted populations and the extent of their need for in-home services or services available in senior centers and develop outreach strategies in its area plan for meeting those needs. (B) Each area agency shall include its specific strategies for meeting the needs of the targeted population in its request for proposals for services and its provider contracts must include those strategies as a provision of the contract. (C) When funding is insufficient to serve everyone seeking services, greatest unmet needs in the targeted populations shall be the principle criteria for prioritization. (D) Each area agency shall include a strategy in its area plan which outlines how language translation services (including sign language translators) will be made available to older persons with limited English speaking ability when needed in order to obtain services. (E) The effectiveness of the area agency's outreach efforts to targeted populations shall be evaluated in accordance with the Department's procedures as specified in this section. (g) Sanctions. (1) The Department shall take appropriate action to secure the continuing administrative compliance of the grantee, in accordance with sec.254. 13(b) of this title (relating to Grantee Responsibilities). Sanctions shall be imposed for the following: (A) for failure to comply with routine and standard administrative or operational requirements; or (B) for failure to comply with federal and state statutes and regulations. The Department shall impose sanction/s on a contractor/grantee using the procedures cited in sec.254.13(c) of this title, (relating to Department Responsibilities). (2) It is the responsibility of the area agency to develop policies and procedures for imposing sanctions upon contractors/subcontractors for non- performance of the contract agreement or non-compliance with service delivery requirements. sec.260.3. Access and Assistance Program. (a) Purpose and Goals. This section establishes requirements for implementation by area agencies on aging of the Access and Assistance (A&A) Program. Each area agency on aging shall establish an Access and Assistance Program. The program shall incorporate necessary strategies and activities to meet the following goals: (1) to provide older persons and/or their family members or other caregivers efficient access to needed services; (2) to conduct effective screening and assessment of individual needs; (3) to efficiently and effectively target resources so that persons most in need receive assistance; and (4) to establish a strong local role and clear identity of the area agency on aging as a source of information and assistance for older persons and/or their family members or other caregivers. (b) Program outcomes. The Department shall establish a consistent methodology for determining and measuring outcomes, and will determine, through periodic monitoring activities, including analysis of area plans and other documentation and reports provided by the area agency, whether the following program outcomes have been or are being achieved: (1) older persons and/or their family members or other caregivers are aware of needed services and are able to make informed choices of services; (2) people in need are connected with existing benefits and services in the community; (3) services are prioritized for the community and the individual, based on need; (4) accurate data about frail elderly persons and their service needs is obtained and used in community-wide and area-wide service planning, prioritizing, and program development; (5) older persons and their family members are assured of high quality services through continuing quality improvement efforts; and (6) an Elder Rights Agenda is produced and carried out by and for the local community, as a result of the area agency's leadership in carrying out the Elder Rights Advocacy functions specified in the Older Americans Act, Title VII. (c) Program characteristics. The Access and Assistance Program, composed of advocacy, outreach, information and assistance, benefits counseling, ombudsman, service authorization, and case management shall maintain the following characteristics. (1) The program is flexible, meaning that it can meet individual requirements of clients-brief information for some, assistance and service authorization for others, on-going case management for more frail persons and/or those with multiple service needs. (2) Assistance is readily accessible and widely advertised. (3) The program is independent and separate from the direct delivery of other services, to assure better coordination and prevent conflicts of interest. (See also sec.260.7(o) of this title relating to Case Management Services). (4) Staff are knowledgeable about community services and creative in facilitating individual access. (5) Clients have choices about which, if any, of the available services they will use. (6) Staff assist elderly persons and/or their family caregivers to act in their own behalf. (d) Program Functions. Advocacy and outreach are inherent not only in the overall mission of the area agency, but also in each of the access and assistance functions defined in this chapter that are performed for and with individuals. (1) Required functions: (A) information and assistance; (B) benefits counseling; (C) Ombudsman service; (2) Optional functions. The following functions are optional: (A) service authorization; (B) case management. (3) Program design. Within the following parameters, each area agency shall design its Access and Assistance program to meet specific local needs and to take advantage of specific local strengths and resources. (A) Preferred method. The area agency shall designate staff who will be responsible for performing each of the required functions referred to in this section unless the area agency uses an alternative method in its program design, in accordance with subsection (d)(3)(B) of this section. An individual area agency staff member may be assigned responsibility for provision of one or more of the program functions. Area agency staff members who are responsible for the access and assistance program functions may be out stationed or officed in remote locations from the area agency headquarters. (B) Alternative method. The area agency may subcontract for any or all of the required and optional access and assistance functions, specified in subsection (d)(1) and (2) of this section, if the area agency can demonstrate that the program outcomes, specified in subsection (b) of this section, can be or are being more effectively achieved through the alternative method. The alternative method shall be described in a format specified by the Department, by the area agency at the time of submission of a proposed area plan or proposed amendment to the area plan, and at the time of program review by the Department. (4) Integration of program functions. The area agency must assure that the access and assistance program functions performed in the planning and service area will be performed in an integrated manner. The area agency will provide documentation in a format specified by the Department, to demonstrate that the integration of all of the access and assistance functions into an effective program has occurred or will occur as a result of the area agency's leadership. The required documentation in a format specified by the Department shall be submitted by the requesting area agency at the time of submission of a proposed area plan or proposed amendment to the area plan; and at the time of program review by the Department. (e) Compliance deadline. It is the intent of the Department that all area agencies will be in compliance with the requirement to provide the access and assistance functions specified in subsection (d)(1) of this section, no later than September 1, 1994. No later than September 1, 1995, and on at least a biennial basis thereafter, the Department will review the status of each area agency's progress toward establishing an access and assistance program in accordance with these requirements and evaluate whether each area agency is achieving the program outcomes specified in subsection (b) of this section; and, if an area agency is found to be not achieving the program outcomes, determine any needed corrective actions according to the process described in sec.254.13 of this title relating to department responsibilities for imposing sanctions. sec.260.5. Information and Assistance Service. (a) Purpose. This section details the quality of service expected from service providers who provide information and assistance services authorized under the Older Americans Act, Title III, by the Administration on Aging, the Texas Department on Aging and area agencies on aging. This section provides guidelines for the Texas Department on Aging, area agencies on aging, and service providers in establishing new services, reviewing current services, and upgrading existing services throughout the state to be consistent in quality, efficiency and cost. (b) Scope. This section applies only to information and assistance services funded under the Older Americans Act, Title III. (c) Eligibility. To be eligible for information and assistance services, individuals must be 60 years of age or older or the spouse, family member, friend or advocate of an eligible person. (d) Compliance deadline. It is the intent of the Texas Department on Aging that all providers of information and assistance services funded under the Older Americans Act, Title III, will be in compliance with the requirements of this section no later than September 1, 1994. (e) Organization and facilities requirements. Information and assistance services to be provided by area agencies on aging or service providers shall meet the following organizational and facilities requirements. (1) The information and assistance service provider shall be a public or private not-for-profit organization, or a clearly identifiable and visible unit within a broader agency, organization, component or activity. (2) The agency shall give particular attention to older persons as part of a service to all groups, or to older persons exclusively. (3) The agency shall be incorporated if it is a voluntary (or private non- profit) agency. (4) The facility shall be furnished with sufficient space to insure comfort and confidentiality during interviewing, if it is available to walk-in callers. (f) Access. (1) Older persons shall have reasonably convenient access to the services. (2) Services shall be available during established working hours through walk in centers, and/or by telephone, without a long distance charge to the inquirer, and shall be accessible to persons who are deaf and to persons who are hearing impaired. (3) Services shall be provided through a telephone answering service, call forwarding, and/or other appropriate resource for calls outside of established working hours. (4) Service providers shall establish linkages with emergency response organizations, such as local law enforcement agencies or other existing agencies/activities as appropriate to provide the necessary coverage. (5) Access to walk in centers shall be free of physical barriers to older and handicapped persons. (6) Services shall be available through staff or volunteers with language skills and other special capabilities to relate to the special needs of the population. (g) Resource information. (1) A provider of information and assistance services shall maintain current information about the services and programs available to older persons. (2) A resource file shall be compiled which identifies opportunities, resources, and services and their providers within the service area in all activities relevant to the needs of older persons. (3) The resource file shall be in a convenient form to enable rapid response to requests. (4) The information system shall be classified by name and nature of the agency, and types of services available. (5) The resource file shall be updated on a continuing basis and shall be verified or revised at least annually. (h) Staffing. The staff shall be competent, ethical, sufficient in number, and qualified by training and/or experience to implement the policies and procedures of the information and assistance program and meet its service requirements; shall have specialized knowledge of older persons; shall be acquainted with the service structure of the information and assistance service area; shall be capable of compiling and using a resource file; and shall be skilled in communicating with inquirers and service providers. (i) Interviewing, information, and referral. (1) Information and referral process. The information and referral process includes receiving an inquiry from and/or on behalf of an older person; assessing the inquirer's service needs; referring the inquirer to an appropriate resource/s for assistance; and following up on referrals to determine that the service was received or provided. (2) Interviewing and assessment. The staff shall receive inquiries and conduct interviews or brief assessments to determine the nature of information sought or the nature of the service needed. (3) Information. The staff shall provide information requested and/or refer callers, as indicated, to agencies or organizations for the assistance required. (4) Referral. The staff shall actively assist inquirers by identifying and linking them to the appropriate resource(s). (5) Follow up. The staff shall follow up on referrals in accordance with the standards which are contained in the department's Program, Policies, Standards and Procedures Manual. (6) All area agency information and assistance staff, and area agency funded information and assistance staff, shall refer appropriate clients to TDHS for Medicaid reimbursable services wherever possible. The department encourages the use of Medicaid resources for eligible persons needing personal care, day activity and health services, homemaker, and other related services. (j) Publicity and outreach. The information and assistance service provider shall apprise older persons, the general public, and providers of other services of the availability of the information and assistance service through the use of media and other outreach methods. The information and assistance service provider shall: (1) be visible to older persons, the general public, and other service providers through mass media, telephone listings, personal contacts, organizational announcements, distribution of printed materials, and other methods. Media releases shall list the Texas Department on Aging as a funding source; (2) coordinate with other community agencies and organizations and other information and assistance services; and (3) be linked, as appropriate and necessary, to other services such as transportation, escort, outreach, and advocacy to facilitate arranging supportive services to assist older persons in successfully using all resources. (k) Records and reports. The agency which provides information and assistance service shall develop and maintain records of its transactions for the purpose of measuring utilization and effectiveness of its service, identifying gaps in the service structure, assisting state and community planning, and providing reports to the Department in accordance with the requirements of sec.270.1 of this title (relating to General Service Requirements). The information and assistance provider shall: (1) record the number and nature of inquiries received; the number of requests for services received, and the agencies and organizations to which inquirers are referred; (2) maintain records of the results of follow-up efforts with inquirers and service providers, indicating whether individuals' service needs were met; (3) maintain records of services which were needed but not available; and (4) prepare and submit reports of the above on a regular basis to the Department or the area agency, and make such reports available to communities or agencies with planning and service development responsibilities. (l) Disclosure of information. An information and assistance service provider shall not disclose information by name about an older person without the informed consent, either written or verbal, of the older person or by his authorized representative. If consent is verbal, it shall be documented on the participant's record (i.e., date, specific purpose for consent). Each instance of disclosing information shall be discussed with the participant and documented. (m) Facilities identification. Offices, or areas within service provider facilities or area agencies on aging, shall be identified in accordance with the requirements of sec.270.1 of this title (relating to General Service Requirements). (o) National Association of State Units on Aging/Alliance of Information and Referral Services/United Way of America National Standards for Information and Referral. The NASUA/AIRS/United Way National Standards for Information and Referral provide a standard of excellence that all information and assistance service providers including those funded under Title III of the Older Americans Act are encouraged to attain. sec.260.7. Case Management Service. (a) Service objectives. The service objectives for case management service are: (1) to thoroughly assess the needs of the client and/or his or her spouse (if eligible) and effectively plan, arrange for, coordinate, and follow up on services which most appropriately meet the needs as mutually determined by the case manager, client, and/or caregiver; and (2) to provide the client with a consistent advocate who will offer necessary information and support and ensure, when feasible, that the desired effects are fully obtained. (b) Target groups. The target groups for case management service are persons age 60 or older and/or their spouses who: (1) are functionally impaired in their ability to perform regular activities of daily living such as bathing, dressing, meal preparation and therefore need at least two in-home or community based services; or (2) who may be likely to require nursing home care if appropriate in-home or community based services are not available through community support as identified by the case manager; or (3) who need additional attention during recuperation stages after hospital discharge; and (4) who need and request the assistance of a case manager to obtain necessary services to resolve the identified problems. (c) Service activities. The following list of activities, taken together, comprise the service "case management." In order for the service to be categorized as case management, all of these activities must be performed for the individual client. (1) Interviewing and initial screening. Interviews and screening will be conducted to determine problems, examine potential solutions for improving the person's situation and to determine whether ongoing case management service will be appropriate. (A) All area agency case managers, and area agency funded case managers, will refer appropriate clients to the Texas Department of Human Services for Medicaid reimbursable services wherever possible. (B) The Department encourages the use of Medicaid resources for eligible persons needing personal care, day activity and health services, homemaker, and other related services. (2) Needs assessments. A needs assessment includes performing or arranging for the performance of an assessment of the following. Home visits must be made as a part of the assessment to determine: (A) cognitive status; (B) emotional status; (C) physical environment; (D) social environment in which the client lives; (E) physical status; (F) economic status; (G) self-care capacity; and (H) services presently received. (3) Care plan. The case manager develops a care plan with the client and/or caregiver. Case management services must involve a written care plan developed in conjunction with the client and/or caregiver. The plan must specify the requested amount, frequency and duration of each service to be provided, and results to be achieved by the delivery of services. (4) Arranging for services. Arranging for services shall include: (A) exploring the availability and quality of services, eligibility criteria, and accessibility of a service to the client; (B) making and documenting referrals to community service agencies; (C) working with volunteers to provide services; (D) working with family and friends of the client to help achieve specific service goals; and (E) service authorization for services provided by area agency-approved vendors, using direct purchase of service procedures, when established by the area agency. (See also sec.260.1(a), relating to definitions.) (5) Monitoring activities. Monitoring includes performing necessary activities to ascertain the delivery of planned services and whether or not the service was successful in meeting the need and advocating for improvements in service delivery. Monitoring shall include at least monthly contacts with the client and with the service provider(s), and a home visit at least quarterly. (6) Follow up. This includes performing necessary activities to determine whether achieved results have persisted and if not, to determine what remedial steps are necessary. (7) Reassessment. Periodic reassessments shall be conducted either when the case manager's regular monitoring indicates that the client's condition has changed, or when a caregiver reports to the case manager that the client's condition has changed. Reassessments include contacting the client, the family or friends, or the service providers and applying case management procedures to newly discovered or still unmet needs. (e) Location of service. Case management services must be provided in accordance with the following requirements. (1) Case management service may be provided by an area agency on aging or by an agency with which the area agency subcontracts, and, in both instances, shall be provided in accordance with the requirements of this section as well as in accordance with sec.270.1 of this title (relating to General Service Requirements). (2) An area agency may use funds from the Older Americans Act, Title III, to provide case management only when the AAA also funds in-home services in the case management service area, and when a locally-determined number of units of the in-home services are reserved and available for referral by the case manager. The Department will consider requests for waiver of the requirement that the area agency fund in-home services in the case management service area if the area agency or the case management provider has established a written interagency agreement with a local in-home service provider(s) which assures that in-home service will be available for clients referred by the case manager. (3) Case management service activities which require in person contact with the client must be provided at the residence of the client and/or in a facility accessible to the client. Other case management service activities are performed in the office of the case manager and/or through collateral contacts with service providers, volunteers, client's family members or friends, physicians, or other individuals or organizations directly related to the client's care. (f) Access to services. Referrals shall be accepted from any source. The most likely sources are self-referrals, family members, friends, physicians, or hospitals. (g) Delivery characteristics. Case management service shall be characterized by compliance with the following requirements. (1) Initial screening. Each prospective client shall be screened initially within five calendar days of referral to determine whether ongoing case management is appropriate. The screening may be conducted on the telephone, in the case manager's office, in the client's home, or other location depending on the circumstances. (2) Service initiation. The assessment shall be completed and case management service initiated, if needed based on the assessment, no later than five calendar days from the date of screening. (3) Location of assessment. The assessment shall be completed in the client's place of residence. (4) Priority of actions. In the case of a hospital discharge client, initial screening, assessment, and service planning should occur before the client leaves the hospital, but it must occur no later than three calendar days after discharge from the hospital. (5) Care plan development. A care plan shall be written and placed in the client's file no later than three working days after the assessment is completed. The plan shall be completed according to a format prescribed by, or acceptable to, the Department. Client and family members and/or caregivers must be included in the planning process. The care plan must specify amount, frequency and duration of each service to be provided. (6) Service start date. The case manager shall arrange for the service(s) that are identified in the care plan to begin at the earliest possible date, consistent with the capacity of the provider agency(ies) to initiate service. (7) Client case records. A confidential client case record shall be maintained on each client served and shall be protected from damage, theft, and unauthorized inspection, and shall contain at least: (A) the needs assessment, including initial referral date and date of completion of assessment; (B) the care plan, including amount, frequency, and duration of each service to be provided; (C) names of service providers and informal caregivers responsible for service to the client; (D) a notation explaining any lapse in service; (E) notation of hospital admission and/or discharge, with dates; (F) date and signature for each notation; (G) record of all case manager visits and contacts; (H) record of all case manager collateral contacts; (I) record of monitoring visits; (J) record of any client complaints and action taken; (K) record of termination or closure; and (L) list of names and phone numbers for notification in event of an emergency. (8) Release of client information. Written procedures must be established and followed by the case management agency for obtaining the written consent of the client for release of confidential information to other service provider agency(ies) when referrals are made. (h) Staffing and training requirements. (1) Staffing. (A) Case managers shall have a bachelor's degree or be otherwise qualified as professional staff members as defined in 260.1(a), relating to definitions. (B) The case manager may delegate some responsibilities (excluding assessments) to other regular adjunct case management staff. All delegated assignments must be completed by staff members with appropriate education, case management training, and/or experience to complete delegated tasks. All decisions made by adjunct staff members must be reviewed by the case manager. (C) Qualifications of adjunct staff members must be documented. (2) Training. Case managers shall complete the training, and demonstrate the skills necessary to perform the duties and responsibilities of a case manager. Training, skills, and duties shall be determined by the Department. (i) Non-Reimbursable Activities. Direct client services (for example, homemaker, meal preparation, or home health services) performed by case managers or adjunct staff are not allowable as case management service activities and cannot be reimbursed as case management. If direct client services are provided by the agency which provides case management, they must be reported and accounted separately. (j) Prohibited service activities. Case management service providers will not perform or participate in any of the following activities: (1) accepting gifts from clients; (2) lending or borrowing money or articles to or from clients; (3) transporting the client in the case manager's automobile unless appropriate liability insurance is in force; and (4) driving or riding in the client's automobile. (k) Administrative requirements. The area agency or other agency providing case management service shall comply with the administrative and other requirements specified in sec.270.1 of this title (relating to General Service Requirements). (l) Monitoring and evaluation. The case management agency's performance shall be monitored and evaluated in accordance with the Department's procedures described in sec.255.35(c)(4) of this title (relating to monitoring). (m) Insurance. The area agency or other agency providing case management agency shall maintain insurance coverage as specified in sec.270.1 of this title. (n) Contracting for services. If the area agency is not the provider of case management service, the area agency shall use competitive selection processes as described in the Department's Program, Policies, and Standards Manual, and in accordance with the Older Americans Act, sec.306(a)(20) (C), which concerns who can provide case management service, and which prohibits the provision of case management by an agency that provides other services, unless it is located in a rural area and obtains a waiver of that prohibition. sec.260.9. Legal Awareness/Legal Assistance Services. (a) Legal authority. The Older Americans Act of 1965 as amended, designates legal assistance as a priority service funded under Title III B, sec.306(a)(2)(C). As such, the funding of legal assistance by each area agency is mandatory, and the Department has set a minimum level of 2.0% of each area agency's Title III B funds. (1) Additionally, the Older Americans Act, Title VII, sec.741, authorizes and funds the provision of outreach and counseling services as listed in subsection (c)(1) and (2) of this section, relating to scope of service, public and private benefits, respectively. Requests for proposals for these funds shall be issued to area agencies on an annual basis. (2) The Omnibus Budget Reconciliation Act (OBRA) of 1990 (Public Law 101-508) established the Health Information, Counseling, and Advocacy Grant Program (HICAP). Funds under this grant are also to be used for carrying out activities listed in subsection (c)(1) and (2) of this section. The grant program is a statewide one, and participation by each area agency is mandatory. (3) Legal assistance services shall be accessible and available throughout each of planning and service areas designated by the Department under sec.254.9 of this title (relating to Designation of Planning and Service Areas). (b) Application. This section applies only to legal awareness/legal assistance funded under the Older Americans Act, Titles III B and VII, and under Omnibus Budget Reconciliation Act of 1990. The use of these funds shall not supplant funds from other sources for legal services. (c) Scope of service. The area agency shall focus its legal awareness/legal assistance services on the priority issue areas listed below. This section does not require the delivery of services beyond budgetary capabilities. Caseloads should be limited to assure the quality and timeliness of advocacy assistance. (1) Income maintenance/public benefits-Social Security, Social Security Disability, Supplemental Security Income, railroad retirement, unemployment compensation, veteran's benefits/pensions, other pensions, and other income maintenance. (2) Health care/long term care-Medicare, Medicaid, Supplemental Insurance, other health insurance, HMO plans, nursing home/boarding home care, and residents' rights. (3) Planning/protecting autonomy-alternatives to guardianship, durable/general powers of attorney, advance directives, money management, and probate matters. (4) Individual rights-abuse, neglect, exploitation, domestic violence, age discrimination, and disability rights. (5) Housing/utilities-protection from loss of home (eviction, foreclosure), homestead tax credit, property tax deferral, low-income energy assistance, utility disconnections, weatherization, landlord/tenant issues, and housing discrimination. (6) Consumer issues-bill reduction, credit/collection issues, unfair sales practices/fraud, solicitation, bankruptcy, and financial counseling. (d) Client access and targeting. Services shall be provided in compliance with sec.260.3 of this title (relating to access and assistance programs) and sec.260.1(f) of this title (relating to targeting service delivery). (e) Qualifications and responsibilities of benefits counselors. Area agencies shall have a professional staff person available in the region who is known as a benefits counselor. The benefits counselor shall complete the training and certification process determined by the Department and demonstrate the skills and expertise necessary to perform the duties and responsibilities of a benefits counselor. (f) Service delivery. Legal awareness/legal assistance services shall be provided according to the following. (1) If the request for legal awareness or legal assistance involves any of the priority issues listed in subsection (c)(1) and (2) of this section, the benefits counselor shall render the assistance as permitted by law, or refer the older person to another benefits counselor in the area. (2) If the request for assistance involving any of the priority issue areas listed in subsection (c) of this section requires intervention by an attorney or paralegal, the older person shall be referred to the appropriate provider(s) in the area. (3) For the purpose of handling requests or referrals which originate from sources other than the area agency, the area agency and the benefits counselor, in consultation with local legal providers, shall develop appropriate and timely referral mechanisms for accomplishing subsection (f)(2) of this section. (4) Regardless of the referral source, it shall first be determined whether or not the older person may be assisted with other resources, such as through the Legal Hotline for Older Texans, pro bono or reduced-fee providers, or through services funded by the Legal Service Corporation (LSC). (5) If the area agency enters into direct purchase of service agreements or contracts with legal assistance providers, the area agency must integrate the provider(s) with the rest of the Access and Assistance service delivery system. The area agency must choose provider(s) who are best able to demonstrate the experience and the capacity to meet the requirements of federal and state law and regulations, as well as deliver the services in accordance with these policies, procedures and standards. (g) Relationship with providers. The area agency shall establish the following procedures when working with providers of legal awareness/legal assistance: (1) The area agency and the benefits counselor shall promote the development of subsection (f)(2) of this section through coordination and involvement with the Legal Hotline for Older Texans, the private bar and local legal programs, (such as law clinics or student law programs), Legal Service Corporation (LSC) grantees, the Ombudsman program, or other programs as appropriate. (2) Area agencies shall utilize the Legal Hotline for Older Texans to provide legal consultation and back-up to the Benefits Counselor, when needed. (3) If additional consultation/back-up for the benefits counselor is needed, the functions may be performed through agreements with such programs as pro bono or reduced-fee attorneys, law school students, local legal programs, or LSC grantees. (4) In accordance with the needs in the region, and to broaden the scope of legal services available to older persons, area agencies may enter into direct purchase of service agreements or contracts with the legal assistance providers in the area. In doing such, area agencies shall select providers that are best able to demonstrate the experience and capacity to carry out the functions and services as outlined in this section. (h) Monitoring and reporting. The area agency shall be responsible for meeting the following monitoring and reporting of service provision. (1) Working jointly with the benefits counselor and the legal assistance provider(s), the area agency shall regularly assess the legal awareness/legal assistance program for program performance, program outcomes, quality, and compliance with these rules. (2) The benefits counselor and the legal assistance provider(s) shall have a method for surveying client satisfaction and needs. (3) The area agency shall obtain from the benefits counselor, volunteer counselors, and from legal assistance provider(s), the reporting information listed in sec.270.1(i) of this title (relating to General Service Requirements). This information shall be submitted on a regular basis as determined by the Department. (i) Confidentiality. Area agencies shall adhere to the requirements regarding client confidentiality as outlined in sec.270.1 of this title (relating to General Service Requirements). sec.260.11. Ombudsman Services. (a) Legal Authority. (1) Ombudsman Rules are promulgated under the authority of Human Resources Code, Chapter 101, and the Older Americans Act of 1965, Chapter VII, as amended. (2) The Board on Aging of the Texas Department on Aging, shall make policy decisions regarding these rules and define service priorities, which shall include advocacy in long-term care facilities licensed by the Texas Department of Human Services or facilities providing care that should be licensed by the Texas Department of Human Services. (b) Purpose. The purpose of these standards is to assure the development and operation of a program which advocates for the rights of residents and their families to receive the highest quality of care in long-term care facilities. (c) Philosophy. (1) Persons who are unable to care for themselves are entitled to dependable and consistent care that includes: (A) a safe and healthy environment; (B) satisfaction of nutritional needs; (C) medical services, including physical, mental and psychosocial rehabilitation; (D) an environment that promotes and maintains the individuals' dignity, self determination, communication and protection of individual rights. (d) Eligibility. Residents of nursing facilities aged 60 and above are eligible for Ombudsman services. Residents who are under 60 years of age, who require advocacy services, may be served if the advocacy effort benefits the other 60-year-old and older residents in that facility. (e) Responsibilities of the Department on Aging. The Department shall: (1) operate the ombudsman program in cooperation with state and federal regulatory agencies and shall enter into a cooperative agreement with the Texas Department of Human Services to define areas of responsibilities, roles, and expectations; (2) assure that appropriate funding and resources are made available to the office to protect the office's ability to thoroughly investigate and resolve complaints and support a statewide advocacy effort. (f) Responsibilities of the Office of the State Long Term Care Ombudsman. The office shall: (1) be an aggressive advocate for the development of an effective and progressive system of quality long-term care; and of rules, policy, procedures, resource development, and legislation on the state and national level for quality long-term care services. It shall assure that residents and family members have regular and timely access to services provided through the office and that they receive timely responses from representatives of the office to complaints and requests for information and assistance; (2) form an advisory committee representing consumers, advocates, providers, and regulators to meet at least two times per year, to obtain advice on matters of priorities of service, standards, policies and procedures and identify advocacy strategies for the statewide program. Membership of the committee shall be approved by the Board on Aging, Texas Department on Aging; (3) demonstrate the coordination with citizen and advocacy organizations to support quality of care and increase community involvement with and awareness of long term care services; (4) develop procedures to evaluate the effectiveness of the statewide ombudsman program. The office shall conduct on-site evaluations of regional programs at least biennially; and (5) assure the functioning of an effective training program and promotional program to promote the acceptance and operation of the ombudsman program. (g) Responsibilities of regional programs. The regional program shall: (1) be an organization with a responsive, visible presence in its region. It shall be coordinated with State, regional and local agencies and be recognized as an active member in the continuum of care in the communities it serves. It shall have a mutually positive referral relationship with the Texas Department of Human Services and the Texas Department of Protective and Regulatory Services. It shall be an expert and reliable source of information for families seeking information on long-term care placement or general requests for assistance. It shall be a catalyst for community involvement in long-term care facilities and be viewed as a credible source of information for the community, the regulatory system, and the nursing home industry. It shall maintain an active and visible advocacy effort to assure quality of care and quality of life in every facility in the region; (2) have adequate staff to manage all aspects of the program and shall designate a professional staff person as the regional ombudsman. The regional ombudsman program shall be a subdivision of the office. The regional ombudsman under federal authority shall be a representative of the office; (3) recruit, select, provide regional certification training and supervision for volunteer ombudsmen to serve all licensed nursing facilities in the region with the goal of at least one ombudsman per nursing facility, but not less than the ratio of certified ombudsmen to licensed nursing facility beds, as prescribed by the Legislative Budget Board of the Texas Legislature. Selection, training, acceptance, and placement of volunteers shall be in accordance with procedures established by the office. Certified volunteers and certain classes of volunteers, shall be representatives of the office, as designated by the office; (4) provide active supervision and monitoring of certified volunteers and regional staff participating in the program, assuring that each certified volunteer contributes at least two hours per week, on the average, to the program. Staff ombudsman shall visit each nursing facility in the region at least once per year. Assure that facilities not regularly served by volunteers or staff are monitored by regional staff and/or certified volunteers to assure that residents have access to advocacy services and substandard conditions are identified and resolved to the satisfaction of the residents; (5) provide a minimum of 12 hours of in-service training for certified volunteers per year. Content and process will be in accordance with procedures developed by the office; (6) provide recertification of existing certified volunteers on a biennial basis, as directed by the office; (7) assure that residents, families, and complainants have regular, timely, and no-cost access to the program and that timely responses are given to complainants and requesters of the service. The ombudsman telephone number shall be listed under the area agency on aging listing in accordance with current Department policy; (8) support the formation of family and resident councils in each facility of the region, in an effort to provide advocacy resources to promote quality of care; (9) assure availability of materials, resources and in-services relating to quality of care to residents, family, and staff of each nursing facility in the region with the goal of providing at least one in-service per facility per year, conducted by certified volunteers or staff ombudsmen; (10) coordinate with regional administrators or their designees of the Texas Department of Human Services, and the Texas Department of Protective and Regulatory Services serving the region at least quarterly to develop efficient referral, communication, and problem-solving procedures; (11) participate in inspection and survey activities with the Texas Department of Human Services in accordance with the cooperative agreement between the Department and the Texas Department of Human Services; (12) submit program performance and other reports in accordance with requirements established by the office, to include an analysis of complaints, a facility by facility synopsis of advocacy activities and recommendation for policy-regulatory changes; (13) assure local awareness of the ombudsman program through the frequent use of local and regional resources, including the media, in order to assure access to the program; and (14) demonstrate the coordination with citizen, membership and advocacy organizations to support quality of care and increase community involvement with and awareness of long term care services. sec.260.13. Implementation of the Options for Independent Living Program. (a) Purpose. The Options for Independent Living Program is established in response to Senate Bill 482 and Senate Bill 222 (Text of Conference Committee Report), enacted by the 71st Texas Legislature and amended by the 72nd Texas Legislature with enactment of Senate Bill 1249. The program is to help elderly persons remain at home despite limited self care capacities, through provision of short term support services for the purposes of: (1) restoring functional capacities after illness or hospitalization; and (2) educating and preparing elderly persons and their caregivers to provide self care. (b) Application of this section. This section incorporates by reference the provisions of Chapter 101, Human Resources Code, Subchapter C, enacted by the 71st Legislature through passage of Senate Bill 482 and the Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. The provisions of this chapter apply to any project administered by an area agency on aging and/or an agency with which an area agency subcontracts, which is established as a result of receipt of a grant from the Texas Department on Aging and is designated by the Department as an "Options for Independent Living" (Options) project. (c) Responsibilities and objectives of options projects. In order to carry out the legislative mandate, each options project will be expected to take a lead role in the following: (1) building collaboration among community service providers; (2) acting as a broker/organizer of community-based care services; (3) serving as a care coordinator/case manager for the older person; (4) developing an appropriate cost-effective service package for the older person; (5) linking community-based care services with acute and primary health care services; (6) improving access to service by individuals and families; (7) implementing cooperative efforts with government support, community support, and client contributions; and (8) employing efficient business practices to expand in-home and community based services to the near poor and middle income segments of the elderly population. (d) Persons to be served. Services of the options program shall be available to persons age 60 and over. (1) Priority shall be given to those who: (A) have recently suffered a major illness or health care crisis or have recently been hospitalized; (B) live in rural areas; (C) have insufficient caregiver support; and (D) have a mild to moderate impairment or a temporary severe impairment; and (E) are in great economic or social need, with particular attention to low income minority older persons. (2) Coordination with Texas Department of Human Services. Each options project is expected to work as closely as possible with the local Texas Department of Human Services (TDHS) staff in order to assure that any persons referred to the project who may be eligible for TDHS services will be referred to that agency, and vice-versa. It is anticipated that in the majority of instances, options clients will not be the same persons as clients of the TDHS community care programs. However, in some instances it may be necessary for options services to be made available to persons who, while currently not receiving TDHS family care or primary home care service, may yet be found eligible for those services. Examples of such instances are: (A) persons on a waiting list for TDHS service; (B) persons in need of immediate service provision who are awaiting determination of eligibility for TDHS service; (C) persons in need of immediate service provision who are awaiting location and placement of a TDHS family care or primary home care service provider. (3) Coordination with hospitals. Prior hospitalization is not a prerequisite for an elderly person to receive service in the options program. However, each project is expected to develop formalized linkages with the local hospital(s) in order to assure follow-up on the hospital discharge plan, including provision of in-home services to help older persons served by the options project to stabilize and convalesce after a hospital stay. (e) Administration and financing of the program. The Department shall administer the program through grants to the area agencies with the advice of the Options for Independent Living Advisory Committee, whose members are appointed by the Board on Aging. (1) Grants. Until such time as the Department may receive sufficient funding for statewide implementation of the program, the department will issue, on a biennial basis, requests for proposal (RFP) to all area agencies that have been designated under sec.254.11 of this title (relating to Designation of Area Agencies on Aging), to determine, on a competitive bid basis, the areas to receive funding. Beginning in January 1995, the Department will competitively bid the projects every two years to coincide with the State biennial appropriation. The deadline and requirements for response to the RFP will be announced by the Department. The selection criteria shall be specified in the RFP and shall be established in such a manner as to enable proposal reviewers to determine whether program requirements have been, or (in the case of a new applicant) will be met. The funds to be granted by the Department for the program will include the state general revenue appropriated by the legislature for the program, and may include Older Americans Act administrative funds to the extent that federal funding levels allow. (2) Other resources. The RFP will require other resources to be applied to the project. The funds made available under the options program will be pooled with Older Americans Act funds available for in-home, supportive and nutrition services, which may be designated as some or all of the required other resources, if the services are coordinated through a case manager, as specified in subsection (f) of this section. To support the costs of the program, to assure community commitment to the program, and to allow community involvement in the coordination efforts of the case management service, each project will be expected to solicit contributions from businesses, private industry, hospitals, foundations, and/or local civic groups. (3) Client co-payments. Individuals receiving service will be expected to help defray the costs of the program, and to participate in the payment for services rendered according to the following guidelines: (A) An elderly person whose income is below the income requirements for financial eligibility for the Community Care for Aged and Disabled (CCAD) Program of the Texas Department of Human Services (TDHS) will be requested to make a voluntary contribution to the cost of services. (B) An elderly person whose annual income exceeds the income requirements for financial eligibility for the CCAD program of TDHS, but whose income is less than 200% of that level shall pay a portion of the cost of the support services provided by the options project according to a sliding fee scale to be published and distributed to the area agencies by the Department, annually or upon revision of TDHS' income requirements for the CCAD program (see subparagraph (D) of this paragraph). (C) An elderly person whose income exceeds 200% of the income level established by TDHS for financial eligibility for the CCAD program shall pay the full cost of support services provided by the options program. (D) The Department will distribute to the area agencies the income ranges and co-payment levels in effect annually or upon revision of CCAD income levels by TDHS. (4) Determination of client income level. The case manager will be responsible for determining the income level of the elderly person by requesting that the person declare the amount of his or her monthly income. (A) The case manager may take into consideration any recurring, out-of-pocket health care expenses incurred by the client, and subtract those from the client's monthly income to determine income level for purposes of client contributions or co-payments. Out-of-pocket health care expenses include physician, hospital, prescription or other medical bills for which the client is responsible, which are not reimbursed by any third-party resource. (B) The confidentiality of this and all other client information shall be assured by the agency providing case management, as specified in sec.270.1 of this title (relating to General Service Requirements) and in sec.260.7(h)(7) and (8), relating to client case records and release of confidential information. (5) Collection and accounting for client co-payments. The agency which provides the case management service is responsible for the collection of and accounting for client co-payments for services provided with options program funds. Periodic reports will be submitted to the area agency and to the Department at the times and in the format specified by the area agency and the Department. Client co-payments are to be utilized for support of the program, in accordance with a budget approved by the area agency and/or the Department. (f) Service requirements. (1) Case management. Each designated options project shall establish a case management unit, which will provide case management services in accordance with the rules specified in sec.260.7 of this title (relating to Case Management Service). The Department will designate the area agency as a case management unit for a service area. The area agency may act as the case management unit or the area agency may subcontract with another agency to act as the case management unit. (A) The case manager must be an employee of a case management unit. (B) The case manager shall conduct an individual assessment of the elderly person's needs and shall, in consultation with the elderly person and his or her family, create a plan of care that specifies the type, amount, frequency, and duration of support services the elderly person needs. This assessment shall be in accordance with the Department's client assessment procedures. (C) The plan of care must coordinate the available public and private services and resources that are most appropriate to meet the elderly person's needs. (2) Other services. Each project shall assure the availability of a package of support services, most of which will be provided in the client's home. The case manager is responsible for arranging for the provision of the combination of services most appropriate to the individual elderly person's needs, based upon the assessment. The package of support services that must be available for arrangement by the case manager includes the following: (A) personal assistance; (B) residential repair; (C) benefits counseling; (D) respite care; (E) emergency response system; (F) education and training for caregivers; (G) home-delivered meals; (H) transportation; and (I) other available public and private services appropriate to the elderly person's needs identified by the case manager and client through the assessment and care planning process. (3) Relevant Department standards. All services must be provided in accordance with relevant Department policies and rules pertaining to the service. (4) Relationship of case management to other services. The case manager is responsible for arranging for, making referrals to, and following up on the provision of needed combinations of the above services mentioned in subsection (f)(2)(A)-(I) of this section, based upon the individual client assessment. Options for Independent Living grant funds may be utilized for provision of any of the services mentioned in subsection (f)(2) (A)-(I) of this section, and the area agency on aging must assure that the services will be available for referral by the case manager. (A) In those instances in which Older Americans Act funds and/or State general revenue funds already support any of the services mentioned in subsection (b) (1)-(9) of this section, in an options project service area, then the area agency and the service provider must assure that an agreed-upon number of service units will be available for referral by the options case manager. (B) The area agency must assure that any conflicts of interest between the function of case management and the provision of direct client services be disclosed. The intent is to separate the function of case management from the provision of direct client services as soon as funds are available. (See also sec.260.7(o), of this title (relating to Contracting for Case Management Service.) (5) Service limitations. Because of the severe funding limitations, and since the services are intended to be short term to allow stabilization and convalescence following a health care crisis, the average length of service for each client shall not exceed three months, excluding case management. (A) Depending on the level of client co-payment and the amount of other funds available to and pooled for the local options project, the total length of service per client may exceed the three-month limit. (B) The cost of the residential repair service shall not exceed $700 per home. (C) Institutional/facility-based respite care is limited to three twenty-four hour periods per year. 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 July 20, 1994. TRD-9445367 Mary Sapp Executive Director Texas Department on Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Chapter 261. Citizen's Advisory Council on Aging Policies and Procedures 40 TAC sec.sec.261.1, 261.3, 261.5, 261.7, 261.9, 261.11, 261.13 The Texas Department on Aging adopts the repeal of sec. sec.261.1, 261.3, 261. 5, 261.7, 261.9, 261.11, and 261.13, concerning functions, composition, terms of office, compensation, presiding officer, meetings, and amendments, without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1820). These rules have been relocated elsewhere in the Department's portion of the administrative code. Without adoption of the repeals, recodification of the rules could not be accomplished. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate the rules governing the operation of the Department. 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 July 20, 1994. TRD-9445368 Mary Sapp Executive Director Texas Department on Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Chapter 270. General Service Requirements Statutes and Regulations 40 TAC sec.270.1 The Texas Department on Aging adopts new sec.270.1, without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1820). This new section establishes general service requirements for use by area agencies on aging. This section compiles service standards common to all services authorized under Older Americans Act of 1965, as amended, in a single location to make them readily available for reference. This section replaces previous sections and reduce, refine and clarify the policies and procedures under which the Department operates Older Americans Act Programs in Texas. The Brazos Valley Area Agency on Aging, the Texas Association of Regional Councils and the Texas Association of Area Agencies on Aging commented on the rules. In sec.270.1(c)(2) of the proposed section, two commenters said that the wording limits services to families and caregivers of Alzheimer's disease and does not include elderly "with other degenerative or debilitating impairments. " The Department does not concur. The language is consistent with the Older Americans Act, sec.306 and sec. 6>341, and identifies families and caretakers of elderly with Alzheimer's disease and related disorders. It does not extend to family caretakers of elderly with impairments in activities of daily living. Regarding client complaint procedures, a commenter noted that "caution should be exercised that absence of a complaint doesn't mean satisfaction with services received." The Department agrees and has included client-centered outcomes expected in each service rule. The Department also requires monitoring and evaluation of the service delivery system to validate achievement of service goals and document customer satisfaction. In subsection (i)(2) regarding the automated information system, one commenter felt that the use of the word "each" implies that each area agency, service provider and subgrantee must have a computer. The commenter stated that this is not economically feasible and not all service providers have staff that are able to learn computer skills. The Department affirms that the system can be automated at certain points to collect the data needed based on local decisions. But the Department does not concur that automation accomplished as a local decision will be always be sufficient to meet the statewide information needs. Therefore, the Department will continue to develop, maintain, and support the software that is used by the area agencies and service providers to collect the information needed to report to a variety of funding agencies. By developing, maintaining, and supporting the software, the Department will be able to collect the data in a consistent manner across the regions and will be able to make changes as they are required by the Department's funding sources. The new section is adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. 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 July 20, 1994. TRD-9445369 Mary Sapp Executive Director Texas Department on Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Chapter 283. Legal Assistance Standards Statutes and Regulations 40 TAC sec.sec.283.1-283.6 The Texas Department on Aging adopts the repeal of sec. sec.283.1-283.6 concerning legal assistance standards, the goals of legal assistance standards, standards for legal assistance, demonstration of adequacy in legal assistance programs, and waiver processes for program requirements, without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1822). These rules have been relocated elsewhere in the Department's portion of the administrative code. Without adoption of this repeal, recodification of the rules could not be accomplished. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate the rules governing the operation of the Department. 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 July 20, 1994. TRD-9445370 Mary Sapp Executive Director Texas Department on Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Chapter 285. Information and Referral Service Standards for the Elderly Statutes and Regulations 40 TAC sec.sec.285.1-285.6 The Texas Department on Aging adopts the repeal of sec. sec.285.1-285.5 concerning Title III Information and Referral Service Standards, scope of service, disclosure of information, facilities identification and alliance of information and referral services, without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1822). These rules have been relocated elsewhere in the Department's portion of the administrative code. Without adoption of the repeals, recodification of the rules could not be accomplished. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate the rules governing the operation of the Department. 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 July 20, 1994. TRD-9445371 Mary Sapp Executive Director Texas Department on Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Chapter 292. Implementation of the Options for Independent Living Program Policies and Procedures 40 TAC sec.sec.292.1, 292.3, 292.5, 292.7, 292.9, 292.11, 292. 13, 292.15 The Texas Department on Aging adopts the repeal of sec. sec.292.1, 292.3, 292.5, 292.7, 292.9, 292.11, 292.13, and 292.15 concerning purpose, application, responsibilities, persons to be served, administration and financing of the program, service requirements, service definitions and options advisory committee without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1823). These rules have been relocated elsewhere in the Department's portion of the administrative code. Without adoption of this repeal, recodification of the rules could not be accomplished. No comments were received regarding adoption of this repeal. The repeal is adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate the rules governing the operation of the Department. 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 July 20, 1994. TRD-9445372 Mary Sapp Executive Director Texas Department on Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Chapter 293. Case Management Service Standards Statutes and Regulations 40 TAC sec.sec.293.1, 293.3, 293.5, 293.7, 293.9, 293.11, 293. 13, 293.15, 293.17, 293.19, 293.21, 293.23 The Texas Department on Aging adopts the repeal of sec. sec.293.1, 293.3, 293.5, 293.7, 293.9, 293.11, 293.13, 293.15, 293.17, 293.19, 293.21, and 293. 23 concerning definitions, units of service, objectives target groups, service activities, location of services, access to services, delivery characteristics, staffing, training, non-reimbursable activities, prohibited service activities and administrative requirements, without changes to the proposed text as published in the March 18, 1994, issue of the Texas Register (19 TexReg 1982). These rules have been relocated elsewhere in the Department's portion of the administrative code. Without adoption of the repeals, recodification of the rules could not be accomplished. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate the rules governing the operation of the Department. 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 July 20, 1994. TRD-9445373 Mary Sapp Executive Director Texas Department on Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Chapter 299. Ombudsman Service Standards Statutes and Regulations 40 TAC sec.sec.299.1, 299.3, 299.5, 299.7, 299.9, 299.11 The Texas Department on Aging adopts the repeal of sec. sec.299.1, 299.3, 299. 5, 299.7, 299.9, and 299.11, concerning purpose and scope, philosophy and mission, definitions, responsibilities of the Department, responsibilities of the state long-term care ombudsman, and responsibilities of regional programs, without changes to the proposed text as published in the March 18, 1994, issue of the Texas Register (19 TexReg 1983). These rules have been relocated elsewhere in the Department's portion of the administrative code. Without adoption of the repeals, recodification of the rules could not be accomplished. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate the rules governing the operation of the Department. 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 July 20, 1994. TRD-9445374 Mary Sapp Executive Director Texas Department on Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Part XIV. Long-Term Care Coordinating Council for the Elderly Chapter 421. General Provisions 40 TAC sec.421.1, sec.421.2 The Texas Department on Aging adopts the repeal of sec.421.1 and sec.421.2, concerning incorporation of statute and purpose of the long-term care coordinating council for the elderly, without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1983). These rules are no longer applicable to the operations of the Department. Without adoption of the repeals, recodification of the rules could not be accomplished. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate the rules governing the operation of the Department. 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 July 20, 1994. TRD-9445375 Mary Sapp Executive Director Texas Department on Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Chapter 423. Membership and Meetings 40 TAC sec.sec.423.1, 423.20, 423.30, 423.40, 423.50 The Texas Department on Aging adopts the repeal of sec. sec.423.1, 423.20, 423. 30, 423.40, and 423.50, concerning composition, terms of office, compensation, officerholders and committees and meetings of the long-term care coordinating council, without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1983). These rules are no longer applicable to the operations of the Department. Without adoption of the repeals, recodification of the rules could not be accomplished. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate the rules governing the operation of the Department. 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 July 20, 1994. TRD-9445376 Mary Sapp Executive Director Texas Department on Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Chapter 425. Lead Agency 40 TAC sec.425.1 The Texas Department on Aging adopts the repeal of sec.425.1, concerning lead agency for the Department, without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1984). This rule is no longer applicable to the operations of the Department. Without adoption of this repeal, recodification of the rules could not be accomplished. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate the rules governing the operation of the Department. 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 July 20, 1994. TRD-9445377 Mary Sapp Executive Director Texas Department on Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Chapter 427. Grants and Donations 40 TAC sec.427.1 The Texas Department on Aging adopts the repeal of sec.427.1, concerning grants and donations for the long-term care coordinating council, without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1984). This rule is no longer applicable to the operations of the Department. Without adoption of this repeal, recodification of the rules could not be accomplished. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate the rules governing the operation of the Department. 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 July 20, 1994. TRD-9445378 Mary Sapp Executive Director Texas Department on Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 Chapter 429. Amendments of Bylaws Type of Action 40 TAC sec.429.1 The Texas Department on Aging adopts the repeal of sec.429.1, concerning amendments of bylaws for the long-term care coordinating council, without changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1984). This rule is no longer applicable to the operations of the Department. Without adoption of this repeal, recodification of the rules could not be accomplished. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate the rules governing the operation of the Department. 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 July 20, 1994. TRD-9445379 Mary Sapp Executive Director Texas Department on Aging Effective date: August 10, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 444-2727 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 31. Public Transportation Federal Programs 43 TAC sec.31.36, sec.31.37 The Texas Department of Transportation adopts amendments to sec.31.36, concerning the sec.18 grant program, with changes to the proposed text as published in the April 12, 1994, issue of the Texas Register (19 TexReg 2706). The department adopts new sec.31.37, concerning the Rural Transit Assistance Program, without changes to the proposed text as published in the April 12, 1994, issue of the Texas Register (19 TexReg 2706). These actions are necessary to establish policies that will then be incorporated in the state management plans for the Sections 16 and 18 programs as required by the Federal Transit Administration. On April 27, 1994 and May 3, 1994, the department held public hearings to receive data, comments, views, and/or testimony concerning the proposed amendments and new section. The Austin Transportation Study and Houston- Galveston Area Council suggested revisions, requested clarification, or expressed opposition to the proposed changes in sec.31.36. No comments were received concerning the proposed new sec.31.37. The comments received and the department's response are presented in the order in which they appear in the proposed rules. Several commenters suggested alternate wording for the goal statement contained in proposed sec.31.36(b) to clarify that the department does not directly operate public transportation services and can only encourage or promote efficiency, effectiveness, etc. Although the department does not directly operate public transportation systems at present, the suggested language would not accurately convey the department's strong interest in the quality and availability of public transportation services in nonurbanized areas. The phrase "promote the availability of" has been added to make the distinction sought by the commenters without sacrificing the premise of the department's oversight responsibilities. A number of comments related to the program objectives contained in proposed sec.31.36(b)(2) and (4). One commenter suggested revisions to clarify what "similar populations" means in sec.31.36(b)(2). Other commenters recommended revisions to sec.31.36(b)(4) to portray the private sector's role in a more positive way. Another commenter asked if that paragraph was meant to apply to private for-profit operators. For clarity, the words "nonurbanized populations" now replace "similar populations" in proposed sec.31.36(b)(2). Paragraph sec.31.36(b)(4) has been reworded as suggested by the commenters from "take advantage of private operators' ability to provide" to "include private sector operators in the overall plan." This revision now conveys more clearly the intent to include private for-profit operators in the provision of service. Two commenters posed questions on proposed sec.31.36(c)(2) which limits Section 18 funding to a single recipient in a particular geographical area. Both asked how the department would decide which entity to fund if more than one existed. There was also concern that a single operator might not be able to address all area transportation needs. One commenter requested clarification on the boundaries of a geographical area and suggested they should coincide with the department's districts. With respect to proposed sec.31.36(c)(5), questions were raised as to when the contract negotiations occur and how much time is required to complete that process. From the inception of the Section 18 program in 1978, the department has funded only one recipient in a particular area, so there are no duplications of service at present. No effort was made to establish uniform boundaries. Instead, system service areas are based on the recipient's boundaries, whether that is a city, county, or multi-county area. This process has worked very well in the past and the rules formally establish that policy. The commenter is correct in pointing out that a single operator may not be able to provide all the needed services. In such cases, one operator will be chosen by local officials and other area stakeholders to apply for Section 18 funding. That Section 18 recipient subcontracts with other local entities to fill those service gaps. This method of grant administration has proven to be very effective in a number of cases and prevents the dilution of limited Section 18 resources. Contract negotiation is a routine process with pro forma agreements used in the Section 18 program. Projects are based on the state fiscal year which begins September 1. Contracts are generally distributed for local signature during the month of July to ensure final execution by the end of August. Several organizations asked why the state administrative expenses for the Section 18 program, as defined in proposed sec.31.36(e)(1), are 15% of the total funding while only 10% of the Section 16 monies are used for program management. The suggestion was that the other 5% should be earmarked for technical assistance projects or invested in the direct provision of transit services. State and federal funding for rural public transportation now exceeds $20 million per year. The department's administrative expenses far exceed the 15% allotment, which is established in the federal circular. The federal guideline for the Section 16 program is 10%. Each year the department also estimates the expenditures for technical assistance projects and deducts that amount from the state allotment. If those requests exceed the available dollars, the department uses state dollars to defray its Section 18 management costs. This budgeting process has worked well since 1978 and the department believes changes are unnecessary. With respect to adding the 5.0% administrative allotment to the Section 18 operating budget, the department believes it is more prudent for the state to use federal resources whenever possible to defray administrative expenses. Further, the amount budgeted by the department is a relatively small percentage of total state and federal expenditures for rural transportation. To illustrate this point, the department's administrative expenses are less than 5.0% for all public transportation programs through the second quarter of FY 94. Another commenter suggested that the list of eligible capital expenses in proposed sec.31.36(e)(2) conform to the federal circular, that some items be eliminated or the list be prioritized, and that the Sections 16 and 18 programs be consistent in this area. The department agrees that the eligible capital items should conform to the federal guidelines and the original list has been modified accordingly. Prioritization of capital needs is a matter more appropriately determined by the local transit operator. A commenter asked if the match requirements of proposed sec.31.36(e)(3) and (4) excluded state assistance and suggested that a reference to sec.31.36(f) be added. These paragraphs relate only to maximum federal shares with subsection sec.31.36(f) outlining the local share requirements, which includes state assistance. The department believes the suggested cross-reference is unnecessary. A number of comments were received that relate to portions of sec.31.36 that were not being revised. One commenter suggested that the reference to "department administrative expenses" in sec.31.36(g)(2) should be revised to "state administrative expenses". Another noted that the January 15 filing deadline in that paragraph was consistent with planning timetables. A commenter recommended that sec.31.36(g)(4) be revised to have contracts include performance goals and management objectives written by the RPT contractor. Similar revisions were proposed for subparagraphs (A) and (B) of that paragraph. The commenter also suggested wording changes in subparagraphs (A)(iv), (B)(i) and (B)(ii). Another commenter suggested significant public input should be sought under sec.31.36(g)(4)(B)(ii) and endorsed the concepts embodied in clauses (iii) and (iv). Clarification was requested on the meaning of "good-faith effort" in sec.31.36(g)(4)(C). The cited provisions of sec.31.36(g) were formally adopted by the Commission in December 1993 after a lengthy debate on this language. The department does not believe the slight differences in the references to administrative expenses create confusion for the reader but instead provide greater clarity in their separate contexts. With respect to the suggestion that the RPT contractor should initiate the performance goals and management objectives, the department has been designated to administer the Section 18 program and cannot delegate those fiduciary responsibilities to another entity. The existing language in sec.31.36(g)(4) is a reasonable accommodation which allows and encourages considerable local input, from both the transit operators and other interested parties, a point raised by another commenter. The suggestion that subparagraphs (A)(iv), (B)(i) and (B)(ii) be revised to read "examples of which may include" appears to be redundant as all of the clauses under subparagraphs (A) and (B) now read "examples of which include, but are not limited to". This clearly expressed the department's intention to consider other measures which fall within a general category. The issue of "good-faith effort" was also raised during the previous comment period. The department recognizes that this determination is admittedly subjective. However, the provision of a grace period and technical assistance, as described in sec.31.36(g)(4)(C)(i), are evidence that the department would consider terminating financial support as a last option. RPT contractors are also explicitly granted the opportunity to appeal termination decisions under clause (ii) of that subparagraph. A commenter asked if proposed sec.31.36(i), which discusses the development of the section 18 program of projects, excluded first time projects and new starts. The definition of "service expansion", which is contained in sec.31.3 (relating to Definitions), includes new starts and first time program recipients. The amendments and new section are adopted under Texas Civil Statutes, Articles 6666, 6663b, and 6663c which provide the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation, and specifically to administer the state public transportation fund and state and federal public transportation programs. sec.31.36. Section 18 Grant Program. (a) Purpose. The Federal Transit Act of 1964, Section 18, as amended (49 United States Code sec.1614), authorizes the Secretary of the United States Department of Transportation to make grants for public transportation projects in nonurbanized areas. The department has been designated by the governor to administer the Section 18 program. (b) Goal and objectives. The Department's goal in administering the Section 18 program is to promote the availability of professional, cost-effective, efficient, and coordinated passenger transportation services to the general public in nonurbanized areas using the most efficient combination of financial and other resources. To achieve this goal, the objectives of the department are to: (1) promote the development and maintenance of a network of general public transportation services in nonurbanized areas throughout the state, in partnership with local officials; (2) fully integrate the Section 18 program with other federal, state, and local resources that are designed to serve nonurbanized populations; (3) improve the efficiency, effectiveness, and safety of Section 18 systems through the provision of technical assistance and the establishment of performance goals and management objectives; and (4) include private sector operators in the overall plan to provide public transportation services. (c) Department role. The department acts as the designated recipient for all Section 18 funds appropriated to the state and has an oversight responsibility for all nonurbanized transit services within the state. The department, however, recognizes the contractors as partners who shall retain control of daily operations. As the administering agency, the department will: (1) develop application materials and disseminate information to prospective applicants and other interested parties; (2) allocate the available program funds in a fair and equitable manner as described in subsection (g) of this section (the department will not provide Section 18 funds to more than one transit system in a geographical area); (3) develop evaluation criteria and select projects for funding; (4) prepare the state's annual program of projects and funding application and submit that material to the Federal Transit Administration for approval; (5) negotiate and execute contracts with local Section 18 recipients; (6) prepare requests for federal reimbursement, and process payment requests from Section 18 recipients; (7) monitor and evaluate the progress of ongoing transportation operations, including compliance with federal regulations; and (8) provide technical assistance to Section 18 recipients to aid them in improving transit services. (d) Eligible recipients. State agencies, local public bodies, private nonprofit organizations, Indian tribes and groups, and operators of public transportation services are eligible to receive Section 18 funds through the department. Private for-profit operators of public transportation services may participate in the program through contracts with eligible recipients. (e) Eligible assistance categories. The following categories of expenses are eligible for federal reimbursement under the Section 18 program. (1) State administrative expenses. The department will use up to 15% of the annual federal apportionment to defray its expenses incurred for the administration of Section 18 program. Such funds may also be used to provide technical assistance to contractors. Technical assistance may include project planning, program development, management development, coordination of public transportation projects, and related research. Projects are solicited from contractors and other interested parties. State administrative and technical assistance expenses do not require a non-federal match. (2) Capital expenses. (A) Eligible items include, but are not limited to: (i) buses; (ii) vans or other paratransit vehicles; (iii) radios and communications equipment; (iv) passenger shelters, bus stop signs, and similar passenger amenities; (v) wheelchair lifts and restraints; (vi) vehicle rehabilitation; (vii) operational support such as computer hardware/software; (viii) other durable goods such as spare components or parts with a unit cost over $300 and a useful life of more than one year; (ix) installation costs; (x) vehicle procurement, testing, inspection, and acceptance costs; (xi) construction or rehabilitation of transit facilities including design, engineering, and land acquisition; (xii) facilities to provide access for bicycles to mass transit facilities or equipment for transporting bicycles on mass transit vehicles; (xiii) the lease of equipment or facilities, provided the local recipient, with the concurrence of the department, determines a lease is more cost effective than the purchase of equipment or facilities after considering management efficiency, availability of equipment, staffing capabilities and guidelines on capital leases as contained in 49 CFR Part 639; and (xiv) the capital cost of contracting as defined in FTA Circular 7010.1. (B) Based on funding availability, federal funds may be used to reimburse up to 80% of eligible capital expenditures. The federal share may increase to up to 90% for bicycle facilities projects or for incremental costs related to compliance with the Clean Air Act or the Americans with Disabilities Act of 1990. Eligibility standards for the higher federal share are defined in FTA Circular 9040.1C. The local contractor must provide a 20% or 10% cash match at the time the equipment is delivered or the services are received. (3) Project administrative expenses. Costs not directly tied, but essential, to the operations of passenger transportation systems may be reimbursed at up to 80% with federal funds. The local contractor must provide a 20% match, either in cash or with in-kind donations. (4) Operating expenses. Those costs directly tied to systems operations, such as fuel, oil, drivers', mechanics' and dispatchers' salaries, and replacement parts may be reimbursed at 50% of net operating costs. The local contractor must provide a 50% match, either in cash or with in-kind donations. (f) Local share requirements. Federal Transit Administration program funds cannot be used as the local share required for Section 18 grants. Eligible match sources include local or state programs, or unrestricted federal funds. At least half of the local share for both net operating and non-operating expenses must be cash or cash equivalent from sources other than unrestricted federal funds. In-kind contributions, volunteer services, and donations are eligible as local share if the value is documented. (g) Allocation of funds. As part of its administration of the Section 18 program, the department is charged with ensuring that there is a fair and equitable distribution of program funds within the state (FTA Circular 9040.1C, Chapter 1, sec.4). Effective January 15, 1994, the department will allocate Section 18 funds to local contractors in the following manner. (1) Unless the governor certifies to the Secretary of the United States Department of Transportation that the intercity bus service needs of the state are being adequately met, the department will reserve not less than 5% of the fiscal year 1992 Section 18 federal apportionment for the development and support of intercity bus transportation. The percentage to be reserved for intercity bus transportation will rise to 10% in fiscal year 1993 and 15% in fiscal year 1994 and beyond unless the governor certifies that such expenditures are not necessary. If it is determined that all or a portion of the set-aside monies are not required for intercity bus service, those funds shall be applied to the formula apportionment process described in paragraph (3) of this subsection. Procedures for determining if a certification of adequacy is warranted are as follows. (A) The department will review all data on intercity bus service availability, including outstanding requests from intercity operators, and levels of service. (B) The department will consult with other state agencies that have jurisdiction with respect to intercity bus regulation and seek their recommendations as to the adequacy of current service. (C) Based on the findings of subparagraphs (A) and (B) of this paragraph, the commission will recommend that the governor certify to the adequacy of intercity bus service. (2) An amount not to exceed 10% of the balance of the annual Section 18 federal apportionment, after the set-aside for intercity bus service described in paragraph (1) of this subsection and department administrative expenses are deducted, and 10% of the remaining balance of previous Section 18 federal apportionments shall be reserved for the expansion of nonurbanized public transportation services. No later than January 15 of each year, all applicants requesting funding under this paragraph shall file a notice of their intentions to expand services. All service expansions shall be initiated on September 1 following the filing of the notice of intent unless otherwise authorized by the department. The amounts to be awarded for each service expansion shall be determined by the commission. After receiving an award under this paragraph, service expansions shall become subject to the funding allocation process described in paragraph (3) of this subsection in succeeding fiscal years. If it is determined that all or a portion of the funds made available under this paragraph are not needed for the purposes described, those monies shall be distributed in accordance with the provisions of paragraph (3) of this subsection. (3) Except as provided in paragraphs (1) and (2) of this subsection, the balance of the annual Section 18 federal apportionment, plus the remaining balance of previous Section 18 federal apportionments, and any state funds appropriated specifically for the purpose of funding nonurbanized public transportation services will be allocated to existing RPT contractors as described in this paragraph. No later than June 1 of each calendar year, the department will announce the allocations for the fiscal year beginning on September 1 of the same year. (A) Subject to the following limitations and adjustments, each RPT contractor shall receive the same percentage of funds as were awarded to that contractor by the commission for fiscal year 1994. (i) The percentage awards to each RPT contractor will be adjusted annually to include any projects funded under paragraph (2) of this subsection during the previous fiscal year. (ii) If a portion of an RPT contractor's service area is declared an urbanized area by the United States Census Bureau or the service area is otherwise reduced, the department and that contractor shall negotiate an appropriate adjustment in the award of nonurbanized public transportation funding to that contractor. (iii) If a previously designated urbanized area is declared nonurbanized by the United States Census Bureau, a public transportation contractor serving that area shall apply for funds in accordance with paragraph (2) of this subsection. (B) Prior to receiving funds a contractor must complete and comply with all application requirements, rules and regulations applicable to the Section 18 program, and must negotiate a contract with the department pursuant to paragraph (4) of this subsection. (4) A contract for the allocation of funds pursuant to paragraph (3) of this subsection shall have an effective date of September 1, shall be for a 12-month period unless otherwise authorized by the department, and shall provide for performance goals and management objectives for the RPT contractor that are acceptable to the commission. (A) Performance goals for each fiscal year shall at a minimum include at least one measure deemed appropriate by that RPT contractor and the department after consultation with the affected RPT contractor from each of the categories listed in clauses (i)-(iii) of this subparagraph and may include at least one measure as provided in clause (iv) of this subparagraph. (i) Cost efficiency. Examples include, but are not limited to, specific performance targets related to revenue recovery ratio, cost per vehicle mile, or cost per service hour. (ii) Cost effectiveness. Examples include, but are not limited to, specific performance targets related to cost per passenger trip or cost per passenger mile. (iii) Service utilization. Examples include, but are not limited to, specific performance targets related to passenger trips per capita, passenger trips per mile, or passenger trips per hour. (iv) Other measures. The department and the RPT contractor may also adopt other performance goals that are deemed appropriate by the department and that RPT contractor to address particular operational issues. For example, if an RPT contractor has experienced a number of vehicular accidents during the preceding year, the department and that RPT contractor might agree to institution of a safety program with the goal of reducing the number of accidents by a specified percentage. (B) Management objectives for each fiscal year shall at a minimum include at least one measure deemed appropriate by that RPT contractor and the department after consultation with the affected RPT contractor from each of the following categories. (i) Training. Examples include, but are not limited to, a target for hours of training to be provided to drivers, renewal of first aid and related certifications for all drivers and management employees, or completion of a total quality management course by a specified number of supervisory staff members. (ii) Marketing and public involvement. Examples include, but are not limited to, the expenditure of a specified budget percentage or amount on marketing activities, the completion of a specified number of public meetings to obtain comments on system operations, or the administration of a passenger survey on quality of service. (iii) Disadvantaged business enterprise participation. Examples include, but are not limited to, achievement of a specified percentage increase in the use of disadvantaged business enterprises, or recruitment and certification of a specified number of disadvantaged business enterprises. (iv) General management activities. Examples include, but are not limited to, the automation of all financial and personnel records, preparation of a business plan to foster private sector partnerships, or completion of a staffing plan that identifies funding resources for anticipated personnel increases. (C) A contractor's performance goals and management objectives will serve as a basis for the department's annual review of the contractor's efficiency and effectiveness in providing public transportation services. If the contractor fails to meet those goals or objectives, and fails to demonstrate a good faith effort for their accomplishment, the commission may rule the contractor ineligible to receive nonurbanized public transportation funding. However, the department will make all possible efforts to ensure continuity of service in that area to accommodate the needs of public transportation riders. (i) The department will notify the contractor of any deficiencies noted in the annual review, and will allow the contractor a minimum grace period of one calendar year from the date of notification to correct those deficiencies. During the grace period, the department will make every reasonable effort to provide appropriate technical assistance to the RPT contractor. (ii) If at the end of the grace period the deficiencies have not been corrected, the commission may by written order authorize the department to terminate funding to the RPT contractor. The RPT contractor may request a public hearing before the commission to present input on why termination is not warranted in accordance with the provisions of sec.1.5 of this title (relating to Public Hearing). (h) Application requirements. A prospective applicant must submit an application for Section 18 grant funds to the appropriate department district office, on the forms and at the time specified by the department. The application shall document the need and demand for general public passenger transportation services. (i) Program of projects. All existing projects and proposed expansion projects for the following fiscal year will be identified in accordance with the allocation rules included in subsection (g) of this section no later than February of each year. Upon commission approval of the allocation, these projects will be submitted to the Federal Transit Administration as the annual program of projects for the fiscal year beginning the following September 1. (k) Intercity bus. If the governor does not certify to the adequacy of intercity bus transportation within the state, funds will be made available in accordance with subsection (g)(1) of this section. An annual request for proposals will be issued for projects complying with Federal Transit Administration definitions of intercity bus transportation. 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 July 21, 1994. TRD-9445439 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: August 11, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 463-8630 Program Administration 43 TAC 31.42-31.49 The Texas Department of Transportation adopts new sec. sec.31.42-31.49, concerning public transportation project management for federal programs. Section 31.44 is adopted with changes to the proposed text as published in the April 12, 1994, issue of the Texas Register (19 TexReg 2706). Sections 31.42, 31.43, and 31.45-31.49 are adopted without changes and will not be republished. These rules are necessary to comply with Federal Transit Administration requirements that will be incorporated in the state management plans for the Sections 16 and 18 programs. On April 27, 1994 and May 3, 1994, the department held public hearings to receive data, comments, views, and/or testimony concerning the proposed new sections. Texoma Council of Governments (Sherman) suggested changes to proposed new sec.31.44. Golden Hub Senior Center (Fredericksburg) made statements regarding proposed new sec.31.49 but did not express support or opposition. No comments were received concerning the proposed new sec.sec.31.42-31. 43 or sec.sec.31.45-31.48. The comments received and the department's response are presented in the order in which they appear in the proposed rules. Regarding the procurement requirements in proposed sec.31.44, one commenter suggested revisions that would provide flexibility for entities that are eligible to purchase items under state contract procedures. The department agrees with this suggestion and has added language to sec.31.44(B)(2)(A) and (B) to authorize such purchases. One commenter observed that the coordination principles contained in proposed sec.31.49 have been practiced for many years in some areas. The department agrees and believes this illustrates that coordination is most effective when it originates at the local level and is developed through a consensus-building process in which all the stakeholders participate. The department seeks to build upon the strong foundation that already exists in some areas and to encourage others to initiate efforts that can be tailored to meet local needs. The new sections are adopted under Texas Civil Statutes, Articles 6666, 6663b, and 6663c, which provide the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation, and specifically to administer the state public transportation fund and state and federal public transportation programs. sec.31.44. Procurement Requirements. (a) Purpose. This section describes procurement standards and related requirements for recipients of state and federal public transportation grant funds. (b) Standards. The standards contained in the common rule shall apply to public transportation procurement activities. All contractors must maintain written procurement policies. Those policies must, at a minimum, provide the following. (1) Vehicle purchases. All vehicle purchases, irrespective of unit price, shall be accomplished through formal sealed bids. (2) Equipment purchases. (A) Equipment with a unit cost of $15,000 or greater shall require sealed bids. Bids for computer and radio systems shall include all subcomponents necessary for the system to be operated in the unit cost. Exceptions will be allowed for those entities that are eligible to purchase items through the state open contract procedures. (B) Equipment with a unit cost of less than $15,000 does not require written bids, but does require the solicitation of bids from at least three sources. The contractor shall retain a written record of these solicitations. Exceptions will be allowed for those entities that are eligible to purchase items through the state open contract procedures. (3) Real property. (A) Acquisition of real property shall be accomplished in accordance with federal and state statutes, regulations, and policies. In particular, projects that receive federal funds must comply with the uniform relocation and real property acquisition standards established in 49 CFR Part 25. (B) Specific standards for construction and rehabilitation projects will be negotiated as part of the project agreement between the department and the contractor. (4) Records retention. All procurement documents are public information and shall be maintained by the contractor for at least three years after award of the purchase order or subcontract. (c) Department role. (1) Oversight and approval. The contractor shall furnish the department with notice of procurement awards. In competitive bidding situations in which a purchase order is awarded to other than the lowest bidder, the contractor shall also provide written justification for that action. Similarly, the contractor shall provide documentation as requested by the department in instances where only one bid is received in response to a competitive solicitation. With respect to professional services subcontracts, the department may request a written description of the contractor's methodology for selecting the successful firm. (2) Technical assistance. The department will provide vehicle specifications and guidance on competitive bidding procedures to contractors upon request. If contractors choose to develop their own specifications, they assume full responsibility for ensuring that the specifications do not restrict competition. 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 July 21, 1994. TRD-9445440 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: August 11, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 463-8630