ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 3. Boll Weevil Eradication Program Subchapter D. Collection of Assessments and Assessment Penalties 4 TAC sec.3.70, sec.3.71 The Texas Department of Agriculture (the department) adopts new sec.3.70 and sec.3.71, concerning the collection of assessments and penalties set by the boll weevil eradication foundation, with changes to the proposed text as published in the May 13, 1994, issue of the Texas Register (19 TexReg 3613). Changes have been made in both sec.3.70 and sec.3.71 to clarify that assessments and penalties are set by the Texas Boll Weevil Eradication Foundation. The new sections are adopted as required by the Texas Agriculture Code, sec.74.116 to establish requirements and procedures governing exemptions from payment of boll weevil eradication assessment penalties. The Department has determined that environmental, biological, and certain other undue hardships may be acceptable instances which would warrant an exemption from payment of established penalties. Section 3.70 provides a statement of authority for collection of assessments and assessment penalties. Section 3.71 provides procedures for requesting an exemption and processing an exemption request and provides criteria used to determine whether an exemption will be granted. No comments were received regarding the adoption of the new sections. The new sections are adopted under the Texas Agriculture Code, sec.74.116, which provides the Texas Department of Agriculture with the authority to adopt rules setting criteria for exemption from payment of assessment penalties. sec.3.70. Statement of Authority for Collection of Assessments and Assessment Penalties. Senate Bill 30, 73rd Legislature, 1993 (now codified at the Texas Agriculture Code, Chapter 74, Subchapter D), provides for the establishment of the Boll Weevil Eradication Foundation (the foundation) to establish and implement a boll weevil eradication program for Texas. The Code, Chapter 74, sec.74.113, provides the foundation with the authority to establish, by referenda of cotton growers, eradication zones and an assessment rate and method for collection of assessments for each zone. The Code, sec.74.115, provides that a cotton grower who fails to pay an assessment levied by the foundation when due may be subject to a penalty set by the foundation board. That section further provides other remedies for failure to pay an assessment and assessment penalty, including destruction of cotton. The Code, Chapter 74, sec.74.116, provides for an exemption for payment of assessment penalties set by the Texas Boll Weevil Eradication Foundation and authorizes the Texas Department of Agriculture to adopt criteria for exemption from payment of assessment penalties. sec.3.71. Exemption from Assessment Penalties. (a) Any cotton grower who fails to pay assessments set by the Texas Boll Weevil Eradication Foundation upon the appropriate due date, and who is subsequently assessed a penalty set by the foundation, may apply for consideration for a hardship waiver (exemption from penalty) in writing on a form prescribed by the commissioner, stating the conditions under which he requests such a waiver. Such waivers shall apply only to penalties and will be considered only upon submission of the following documentation. Additional information may be provided. The following must be submitted: (1) an assignment of deficiency payments for cotton or any other crop to cover the amount due for assessments and penalties, and a general crop lien for all crops and products of such crops if deficiency payments are insufficient; (2) a financial statement from a bank or other lending institution financing the farming operation indicating inability to pay; or (3) an income tax statement showing taxable net income for the taxable year in which the grower seeks a waiver. (b) Determination as to whether or not a waiver will be granted by the foundation will be based on the completed application and satisfactory documentation of the following criteria, including, but not limited to: (1) adverse health conditions supported by a physician; (2) a natural or physical disaster resulting in at least 30% crop loss and not covered by insurance; (3) a biological disaster such as severe insect or disease infestation not controllable by currently available pesticides or pest management strategies; (4) a financial disaster, such as theft or fire, supported by appropriate documentation; or (5) any other extraordinary circumstances, for which documentation must be submitted. (c) A cotton grower will not qualify for an exemption under this section in a year for which the amount computed by subtracting the assessments and penalties due under this subchapter from the cotton grower's net income subject to federal income taxation is greater than $15,000. (d) A cotton grower who applies for an exemption under this section must use a form prescribed by the commissioner. Forms may be obtained by contacting the Texas Department of Agriculture, Coordinator for Cotton Programs, P.O. Box 12847, Austin, Texas 78711. A cotton grower must file a separate application for each year for which the cotton grower claims an exemption. (e) The commissioner shall forward to the foundation a completed exemption application form. The foundation shall determine whether the applicant qualifies for a full, partial or reduced exemption and shall notify the commissioner of its determination in writing. (f) Upon notification by the foundation that a cotton grower qualifies for an exemption, the commissioner shall exempt the cotton grower from payment of an assessment penalty under the Texas Agriculture Code, sec.74.115, and take no further action. (g) On the foundation's recommendation, the commissioner may establish a payment plan for a cotton grower applying for an exemption under this section. (h) The commissioner shall promptly notify an applicant of the foundation's determination regarding the applicant's request for an exemption by mail at the applicant's last known address. (i) If an exemption under this section is denied, assessments and penalties for the year for which the application is made are due to the foundation on the later of: (1) the date on which they would be due in the absence of an application for exemption; or (2) 30 days after the date the applicant receives notice of the denial. 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 27, 1994. TRD-9445740 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: August 17, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 463-7583 TITLE 7. BANKING AND SECURITIES Part II. Banking Department of Texas Chapter 25. Prepaid Funeral Contracts Subchapter B. Regulation of Licenses 7 TAC sec.25.23 The Texas Department of Banking (the Department) adopts an amendment to sec.25.23, governing fees applicable to the regulated prepaid funeral services and merchandise industry, to reduce the insurance conversion fees in certain circumstances, without changes to the proposed text as published in the April 29, 1994, issue of the Texas Register (19 TexReg 3213). Pursuant to Texas Civil Statutes, Article 548b (the Act), the Department is empowered to set fees for insurance conversion applications. The amendment to sec.25.23 will reduce the insurance conversion fee in the case of a conversion application involving an annuity product identical in form to one that has been approved by the Department after December 1, 1993, in response to a substantially similar application. One comment was received from a group of five entities, Funeral Agency, Inc. , Funeral Directors Life Insurance Company, Texas Directors Life Insurance Company, Directors Investment Group, Inc., and Directors Succession Planning, Inc. While generally in favor of the amendment, the comment questioned the choice of December 1, 1993, as the date employed to determine whether a future insurance policy was identical to a policy approved after that date. The Department had imposed a moratorium on insurance conversion approvals in mid to late 1993 while it investigated allegations that certain insurance products were inadequate to meet statutory requirements. December 1, 1993, was selected as representative of the date the Department had developed sufficient expertise to lift the moratorium on insurance conversion approvals, and the date remains unchanged in the section as adopted. The comment also argued that the proposed amendment failed to take into account certain insurance conversion plans that are grandfathered by sec.4(a) of the 1993 amendatory act (Acts 1993, 73rd Legislature, Chapter 808, effective September 1, 1993). The Department rejects the notion that any insurance policy or annuity to be issued in connection with future conversions constitutes a plan envisioned by sec.4 of the amendatory act, whether or not an identical insurance product was approved by the Department in a conversion that occurred prior to the effective date of the amendatory act. The amendment is adopted pursuant to Texas Civil Statutes, Article 548b, sec.1A(d) and 2, which empowers the Department to set fees for insurance conversion applications. 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 28, 1994. TRD-9445798 Everett D. Jobe General Counsel Banking Department of Texas Effective date: August 18, 1994 Proposal publication date: April 29, 1994 For further information, please call: (512) 475-1300 Chapter 26. Perpetual Care Cemeteries 7 TAC sec.26.1 The Texas Department of Banking (the Department) and the Banking Commissioner of Texas (the Commissioner) adopt an amendment to sec.26.1, to change the financial base used for determination of examination fees assessed against regulated perpetual care cemetery trust funds pursuant to Chapter 712 of the Health and Safety Code, without changes to the proposed text as published in the April 29, 1994, issue of the Texas Register (19 TexReg 3215). The amendment establishes the examination fee base as required contributions to the perpetual care trust fund. The prior version used the absolute size of the trust fund as the assessment base, which could tend to discourage voluntary, excess contributions. No comments were received on the proposal. The amendment is adopted under the Health and Safety Code, sec.712.044(b), which empowers the Commissioner to set fees in sufficient amount to defray the cost of administering the Health and Safety Code, Chapter 712. 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 28, 1994. TRD-9445799 Everett D. Jobe General Counsel Banking Department of Texas Effective date: August 18, 1994 Proposal publication date: April 29, 1994 For further information, please call: (512) 475-1300 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 313. Athletic Trainers The Advisory Board of Athletic Trainers (board) adopts amendments to sec.sec.313.1, 313.4, 313.7 and 313.15; repeal of existing sec.sec.313.5, 313.6, and 313.13; and new sec.sec.313.5, 313.6, and 313.13, without changes to the proposed text as published in the June 14, 1994, issue of the Texas Register (19 TexReg 4618) and will not be republished. The amendments delete the definition of National Athletic Trainers Association, Inc.; add photograph and out-of-state license verification requirements for applicants; change the test administrations to two times a year; and make various minor changes to conform to current Texas Register style requirements. The repeal of existing sec.313.5 concerning educational requirements and sec.313.6 concerning apprenticeship requirements allows adoption of new sec.313. 5 concerning qualifications and new sec.313.6 concerning student trainer activities. Section 313.5 expands the qualifications accepted for licensure. The repeal of existing sec.313.13 removes the continuing education requirements. The new sec.313.13 replaces the continuing education procedures with new continuing education procedures that change the way licensees report continuing education activities. The new continuing education reporting system provides a more cost- effective manner for the board to ensure compliance with the continuing education requirements for licensure. The sections assure the regulation of athletic trainers continues to identify competent practitioners. No comments were received regarding the proposed rules. A public hearing was held on July 15, 1994, in Austin, Texas. General Requirements and Guidelines 25 TAC sec.sec.313.1, 313.4, 313.7, 313.15 The amendments are adopted under Texas Civil Statutes, Article 4512d, sec.5, which provide the Advisory Board of Athletic Trainers with the authority to adopt rules concerning the regulation and licensure of athletic trainers. 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 28, 1994. TRD-9445795 Michael Saly Chairman, Advisory Board of Athletic Trainers Texas Deparment of Health Effective date: August 18, 1994 Proposal publication date: June 14, 1994 For further information, please call: (512) 834-6615 25 TAC sec.sec.313.5, 313.6, 313.13 The repeals are adopted under Texas Civil Statutes, Article 4512d, sec.5, which provide the Advisory Board of Athletic Trainers with the authority to adopt rules concerning the regulation and licensure of athletic trainers. The sections affect Texas Civil Statutes, Article 4512d. 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 28, 1994. TRD-9445796 Michael Saly Chairman, Advisory Board of Athletic Trainers Texas Deparment of Health Effective date: August 18, 1994 Proposal publication date: June 14, 1994 For further information, please call: (512) 834-6615 The new sections are adopted under Texas Civil Statutes, Article 4512d, sec.5, which provide the Advisory Board of Athletic Trainers with the authority to adopt rules concerning the regulation and licensure of athletic trainers. The sections affect Texas Civil Statutes, Article 4512d. 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 28, 1994. TRD-9445797 Michael Saly Chairman, Advisory Board of Athletic Trainers Texas Deparment of Health Effective date: August 18, 1994 Proposal publication date: June 14, 1994 For further information, please call: (512) 834-6615 Chapter 401. System Administration Subchapter A. Advisory Committees 25 TAC sec.401.25 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.401.25, concerning Advisory Committees, without changes to the proposed text as published in the May 20, 1994, issue of the Texas Register (19 TexReg 3896). The new section recognizes a newly created advisory committee concerning equity of access to mental health and mental retardation services across the state. The new section outlines the purpose, tasks, and duration of the committee, which is subject to all other requirements of Chapter 401, Subchapter A, concerning advisory committees. No public comment was received concerning adoption of the new section. The new section is adopted under the Texas Health and Safety Code, sec.532. 015, which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on July 28, 1994. TRD-9445846 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: August 19, 1994 Proposal publication date: May 20, 1994 For further information, please call: (512) 206-4516 Subchapter L. In-Home and Family Support Program 25 TAC sec.sec.401.683, 401.685, 401.690, 401.692 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts amendments to sec.sec.401.683, 401.685, 401.690, and 401.692, concerning TDMHMR In-Home and Family Support Program, without changes to the proposed text as published in the May 10, 1994, issue of the Texas Register (19 TexReg 3542). Public comment was received from Collin County Mental Health and Mental Retardation Center. The commenter questioned if the second level of appeal conducted by the Legal Services Division of TXMHMR would be costly. The commenter felt that if the cost were insignificant then the amendment would be beneficial. The department responds that although some expense would be necessary, it would be significantly less than the cost of an administrative hearing. The amended sections are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. 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 August 1, 1994. TRD-9445851 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: September 1, 1994 Proposal publication date: May 10, 1994 For further information, please call: (512) 206-4670 Chapter 405. Client (Patient) Care Subchapter B. Prescribing of Psychotropic Medication-Mental Retardation Facilities 278>25 TAC sec.sec.405.25-405.38 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.405.25-405.38, concerning prescribing of psychotropic medication. Sections 405.27-405.28, 405.30, 405.32, 405.34, 405.36, and 405.37 are adopted with changes to the proposed text as published in the April 29, 1994, issue of the Texas Register (19 TexReg 3220). Sections 405.25-405. 26, 405.29, 405.31, 405.33, 405.35, and 405.38 are adopted without changes and will not be republished. In addition to establishing general principles to be utilized in the prescribing of psychotropic medication for persons with mental retardation, the new subchapter outlines procedures for the ongoing evaluation of individuals for whom psychotropic medication has been prescribed. In addition, the new subchapter introduces a drug protocol to be used for purposes of assessing quality improvement. The provisions would supercede rules governing the same matters in Chapter 405, Subchapter GG (concerning Prescribing of Psychotropic Medications), which remain in effect for community-based mental retardation services. In sec.405.27, the definition of "fully qualified psychiatrist" is revised to include a fully licensed physician with at least one year of psychiatric training who is under the supervision of a board-certified psychiatrist. In the definition of "interdisciplinary team," it is clarified that the team includes "MR service professionals." Also in sec.405.27, the term "medical director" is replaced with "chief physician." The definition is revised to reflect that the chief physician may provide a consultation if clinically qualified (e.g., a chief physician who is not a fully qualified psychiatrist could not provide a consultation which was required to be provided by a fully qualified psychiatrist). The term "medical director" is replaced with "chief physician" throughout the document. The definition of "polypharmacy" is revised to clarify that the period of overlapping use of more than one psychotropic medication when a physician changes an individual from one drug to another shall not be considered polypharmacy. The phrase "shall not be considered polypharmacy" was inadvertently deleted from the text in the proposal. Section 405.28(b) is reorganized to clarify intent. Section 405.28(c) is revised to clarify that an individualized plan for the collection of clinical and behavioral data and monitoring of the data is a systematic way must be developed prior to prescribing psychotropic medication. Language concerning prescribing of psychotropic medication for behavior management is removed from sec.405.28(c) and inserted into new sec.405.28(d). Section 405.28(g) is added to clarify that if the physician is not a fully qualified psychiatrist, the physician must obtain a consultation with a fully qualified psychiatrist prior to initiating a psychotropic medication. Section 405.28(j) is added to clarify that this subchapter does not supercede other applicable federal standards. Section 405.28(k) is added to address the issue of least restrictive treatment alternative. Section 405.28(l) is added to address exceptions necessary to the well-being of the patient or others. It is clarified in sec.405.30(d) that reference to PRNs in this subchapter applies only to psychotropic medication. Section 405.32 is revised to require that a face-to-face evaluation be conducted at least quarterly by a physician, preferably a fully qualified psychiatrist. The term "qualified physician" is replaced with, "physician" in sec.405.32(d). Section 405.32(f) is revised to clarify that the IDT shall have input and participation in determination of whether or not the annual attempt to withdraw an individual from psychotropic medication is contraindicated. Section 405.33(5)(B) is revised to clarify intent. Section 405.34(a)(1) is added to clarify that when an individual is admitted for respite services and is taking psychotropic medication, the facility physician shall review the medication regimen and, if appropriate, issue an order for the psychotropic medication. No medications shall be dispensed without an order from the physician. It is clarified in sec.405.34(a)(2) that the physician shall seek input from the IDT (if one exists) when considering changing the regimen of an individual admitted for extended respite services. "Sleep" is deleted as an example in sec.405.36. Written comments were received from four organizations, including: Mental Health and Mental Retardation Authority of Harris County, Houston; The ARC of Texas, Austin; Life Management Center for MH/MR Services, El Paso; and Advocacy, Inc., Austin. All commenters offered recommendations for changes. A commenter noted that the development of these rules has taken a very long time-the commenter noted five years -and asked why the process had taken so long. The department responds that the issues surrounding the subject are extensive and required lengthy discussion and review in order to ensure that the balance between an interdisciplinary approach to treatment and recognition of the physician's responsibilities was maintained. The same commenter expressed concern about potential abuse in using psychotropic medication for behavior intervention. The commenter noted that such medications should only be used as a last resort. The department responds that although psychotropic medication is not necessarily a treatment of last resort, it should only be prescribed when it is the least restrictive, clinically appropriate treatment alternative. Language is added to sec.405.28 to address this issue. A commenter expressed concern about the subchapter's limited application, noting that community-based programs of state schools and community mental health and mental retardation centers (CMHMRCs) were left following a different set of standards. The department responds that consideration was given to extending this set of provisions to community-based services. However, it was determined that the most efficient solution would be to attempt to establish parallel provisions for community-based services through the revision of the mental retardation community standards. Concerning sec.405.27, a commenter recommended replacing the term "fully qualified psychiatrist" with the term, "psychiatrist." The commenter noted that a physician who completes an approved residency program in psychiatry is a psychiatrist, and suggested that the term "fully qualified psychiatrist" was redundant. The department responds that the term is used to correspond with the meaning assigned in sec.405.27. Also concerning sec.405.27, a commenter recommended rewording the definition of "interdisciplinary team" to reflect membership by "MR service professionals. " The department agrees, and the language is revised. The same commenter also noted that the definition of "polypharmacy" seemed to be incomplete. The department agrees, and the phrase, "shall not be considered polypharmacy," has been added to complete the definition. A commenter recommended reorganizing sec.405.28(b) to clarify intent. The department responds that the paragraph has been reorganized. Also concerning sec.405.28(b), a commenter recommended deleting the phrase, "for punishment." The department responds that the use of psychotropic medication for punishment is expressly prohibited. Regarding sec.405.28(e), several commenters recommended revising the rule to state that a physician who is not a fully qualified psychiatrist must consult with a fully qualified psychiatrist prior to prescribing or changing a psychotropic medication. Language is added requiring a physician who is not a fully qualified psychiatrist to obtain a consultation with a fully qualified psychiatrist prior to initiating psychotropic medication. In the event of a change to the regimen, the physician must obtain a consultation with a qualified professional. This language was used to reflect that other individuals, including pharmacists, might be qualified to provide the consultation. A commenter noted that application of sec.405.30(b) to (CMHMRCs) would entail higher costs for the center. The department responds that although the requirement does not currently extend to CMHMRCs, any pharmacist filling a prescription would normally review the prescription as outlined prior to dispensing medication. With regard to sec.405.30(d)(1), several commenters noted the importance of the physician reviewing the chart of an individual who is receiving medication on a PRN basis. The department responds that the chart is reviewed by health care professionals on a regular basis, with the physician notified in the event of a potential problem. A commenter expressed concern that the application of sec.405.32(a)(2) to CMHMRCs would entail higher costs for the center. The department responds that at this time, the requirement does not apply to CMHMRCs. Monitoring of side effects and collection of behavioral and/or clinical data is conducted according to provisions specified by the individual's IDT. The same commenter also expressed concern that the requirement for a quarterly pharmacist's review as outlined in sec.405.32(e) would entail higher costs of applied to CMHMRCs. The department responds that at this time, the section does not apply to CMHMRCs. A commenter noted that sec.405.32 included reference to a "qualified physician." The commenter noted that the term had not been utilized before, and recommended replacing it with "physician." The department agrees, and "qualified" is deleted. Two commenters noted that sec.405.33(2) does not include provisions for a person who may not be competent and who does not have a legal guardian to have the relevant aspects of a diagnosis of a medication-related dyskinesia (e.g., tardive dyskinesia) explained. The commenters recommended that the IDT initiate proceedings for a limited legal guardian or utilize a surrogate decision-maker. The department responds that application of the surrogate decision-making process is not extended to TXMHMR facilities under the authorizing statute. During its deliberations, the interdisciplinary team (IDT) would normally consider any possibilities for ensuring the most protection for the individual; in some cases, this might lead the IDT to take steps to secure a limited guardian. Concerning sec.405.33(5)(B), a commenter suggested that the term "attempt a discussion" be replaced with "discuss potential benefits." The department responds that language has been revised to respond to the commenter's concerns. With regard to sec.405.34(a), a commenter recommended deleting the phrase "if possible" from the end of the sentence since the term, "will attempt," which was used earlier in the paragraph, carried the same meaning. The department agrees, and the language has been deleted. Two commenters recommended adding language to sec.405.36 addressing the need for quarterly screening for medication-related dyskinesia for individuals who receive psychotropic medication even if the medication is prescribed for a nonpsychiatric or non-behavioral condition. The department responds that neuroleptics are very rarely prescribed for nonpsychiatric or non-behavioral conditions; however, when appropriate, the physician would ensure such screening took place as part of good patient care. Two commenters recommended adding language to sec.405.38 requiring the department to develop a summary of the rule in simple, easy to understand terms and provide the document to the individual, legal guardian, or surrogate. The department responds that a simple, easy-to-read brochure has been created and will be attached to the rule and made available at facilities. No new language is added to the rule. These sections are adopted under the Texas Health and Safety Code, sec.532. 015, which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. sec.405.27. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise: Commissioner-The commissioner of the Texas Department of Mental Health and Mental Retardation (TXMHMR). Consultation-A deliberation with or report by a health care professional providing an expert opinion as requested by a physician or other authorized person. Department-The Texas Department of Mental Health and Mental Retardation (TXMHMR). Emergency-A situation in which, in the opinion of the treating physician or other appropriate professional, the immediate use of medication is necessary for acute treatment or essential to interrupt imminent danger to the individual or others. Fully qualified psychiatrist-A physician, licensed to practice medicine in Texas, who has completed approved residency training in psychiatry, or a fully licensed physician with at least one year of psychiatric training who is under the supervision of a board-certified psychiatrist. Individual-A person who is receiving residential services at a state school or state center. Individual's record -The facility's official written record of an individual's care (medical record, chart). Informed consent -Voluntary consent given by a person or the person's legally authorized representative. Guidelines for obtaining and documenting informed consent are outlined in Chapter 405, Subchapter I of this title (relating to Consent to Treatment with Psychotropic Medication-Mental Retardation). Interdisciplinary team (IDT)-A group of MR service professionals and paraprofessionals plus other concerned persons, including the individual, who assess the individual's treatment, training, and habilitation needs and make recommendations for services. Chief physician -The medical director or clinical director of a facility. When clinically indicated, the chief physician is, by definition, qualified to render the consultations or second opinions required in this subchapter. Mental retardation facility-All state schools and state centers providing 24-hour residential services to persons with mental retardation. The term applies to the campus-based programs of state schools and state centers, but does not apply to multiple disability units of state hospitals. Pharmacist-A person with a current license issued by the Texas State Pharmacy Board to practice pharmacy. Physician-A doctor of medicine or osteopathy who holds a current license issued by the Texas State Board of Medical Examiners to practice medicine, or who possesses an institutional practice permit issued by the Texas State Board of Medical Examiners. A licensed dentist or podiatric physician, when acting within the scope of his/her professional training and licensure, is authorized to prescribe, dispense, and administer medications appropriate to the specialty, and is included in this definition. Polypharmacy-Simultaneous use of more than one psychotropic medication from the same medication class to treat an individual. For the purpose of this rule, the period of overlapping use of more than one psychotropic medication when a physician changes an individual from one drug to another shall not be considered polypharmacy. Prescription-A lawful written or telephone/verbal order by a licensed prescriber or the authorized agent of a licensed prescriber to dispense or administer medication. PRN-As needed. Psychotropic medication -Any medication which is prescribed for the primary purpose of, and with the primary intent of, improving cognition, affective state, and/or behavior. Registered nurse -A person with a current license issued by the Texas State Board of Nurse Examiners to practice professional nursing. Respite care-The care of a person with mental retardation voluntarily within a mental retardation facility for a brief period of time, the purpose of placement being to provide temporary relief or special assistance for the individual or the individual's family. TXMHMR Executive Formulary Committee-A committee which is responsible for creation and revision of the TXMHMR Formulary and other duties. TXMHMR Formulary -A continually revised printed listing by nonproprietary name of all drugs approved for use within TXMHMR facilities by the Executive Formulary Committee. sec.405.28. General Principles. (a) Prior to the administration of psychotropic medication, informed consent for the medication class and the individualized dosage range will be obtained as described in Chapter 405, Subchapter I of this title (relating to Consent to Treatment with Psychotropic Medication-Mental Retardation Facilities). (b) Psychotropic medication shall not be used: (1) excessively; (2) for punishment; (3) for convenience of staff; (4) as a substitute for activities or treatment; or (5) in frequency or quantities that interfere with the individual's habilitation program. (c) Psychotropic medication shall be prescribed only after: (1) a psychiatric evaluation (including documentation of current symptoms and/or behaviors) of the individual for whom the medication is being prescribed has been conducted; and (2) behavioral and clinical goals and objectives have been established and an individualized plan for the systematic collection and monitoring of clinical andor behavioral data is documented; and (3) appropriate laboratory screening procedures have been performed. (d) Psychotropic medication shall only be prescribed with prior input and participation by the individual's IDT, and as a part of the individual's treatment program. (e) When a psychotropic medication is prescribed primarily for control of inappropriate behavior, it must be used only as an integral part of the individual's treatment program plan that is directed specifically toward the reduction of and eventual elimination of the behavior for which the medication is employed. There must be consensus between the physician and the IDT before prescribing psychotropic medication primarily for control of inappropriate behavior. (f) Documentation of the significant factors considered in arriving at the decision to use psychotropic medication, the consent process, the treatment procedures, and the individual's response to treatment are to be entered into the individual's record. (g) If the prescribing physician is not a fully qualified psychiatrist, a consultation with a fully qualified psychiatrist must be obtained before initiating a psychotropic medication regimen. (h) If the prescribing physician is not a fully qualified psychiatrist, a consultation must be obtained before any change in medication class or other significant changes are made to a psychotropic medication regimen. Except for emergencies, changes will be made with input and participation by appropriate members of the individual's IDT. (i) Nothing in this rule shall be understood to preclude use of psychotropic medication in an emergency, as outlined in sec.405.32 of this title (relating to Emergency Use of Psychotropic Medication). In the event of an emergency, requirements of subsections (c) and (d) of this section shall be met in keeping with provisions outlined in sec.405.32. (j) Facilities are required to comply with applicable federal standards concerning prescribing of psychotropic medication for persons with mental retardation. (k) Psychotropic medication shall only be prescribed when appropriate and when it has been determined to be the least restrictive, clinically appropriate intervention. However, it should be noted that psychotropic medication is not necessarily a treatment of last resort and in certain cases may be the treatment of choice. (l) If deviation from the policies outlined in this subchapter is deemed necessary for the well-being of the patient or others, clear documentation of the deviation, its rationale, and clinically appropriate consultation will be entered in the record of the person served. sec.405.30. Prescribing Parameters. (a) Dose and dosage levels. The TXMHMR Formulary or other professionally accepted and authoritative references will be used as guidelines for dosage. Higher doses may be used only with treatment by or documentation of consultation with a fully qualified psychiatrist. (b) Pharmacist's responsibility. (1) Prior to dispensing or distributing medication the pharmacist shall review the prescription for: (A) dosage ranges; (B) drug interactions; (C) polypharmacy; and (D) drug allergies or sensitivities. (2) If the pharmacist discovers an irregularity, he or she shall contact the prescribing physician for resolution of the issue. The prescribing physician shall consult with a fully qualified psychiatrist as needed for additional professional opinion and clinical recommendation. If no agreement is reached, the pharmacist or prescribing physician shall contact the facility's chief physician for assistance. (c) Polypharmacy. The simultaneous use of more than one psychotropic medication of the same class (polypharmacy) in treating an individual shall be permitted only after the prescribing physician (if not a fully qualified psychiatrist) has reviewed the matter with a fully qualified psychiatrist and the prescribing rationale has been documented. (d) PRNs for psychotropic medication. (1) PRN orders for antipsychotic and anxiolytic drugs are valid for a maximum of 96 hours. (2) All PRN orders for psychotropic medications other than antipsychotic and anxiolytic drugs are valid for a maximum of 31 days. (3) All PRN orders must include: (A) the target symptoms or signs which trigger use of the medication; (B) the dose to be used; (C) the minimum interval allowed between doses; and (D) the maximum dose in a single 24-hour period. sec.405.32. Initiation and Ongoing Evaluation of Medication Response and Clinical Condition. (a) Initiation of psychotropic medication. When a new psychotropic medication is initiated or a dose is significantly changed: (1) The response and clinical condition of the individual shall be directly evaluated and documented in the individual's record by a physician as often as medically necessary for the period of time needed to stabilize the clinical response, but at least weekly for one month. (2) Side effects shall be monitored and evaluated by the registered nurse or physician's designee at least weekly for at least one month. The evaluations shall be reviewed weekly by a physician. (b) Monthly evaluation of prescription. At least monthly the individual's prescribing physician and/or a fully qualified psychiatrist, along with appropriate members of the individual's IDT, will review the case of each individual who is taking psychotropic medication. (c) Quarterly physician evaluation. At least quarterly, a physician, will personally review data compiled since the last review, assess each individual taking psychotropic medication, and discuss the case with appropriate members of the individual's IDT. (d) Quarterly tardive dyskinesia screening. All individuals receiving medication known to be associated with tardive dyskinesia shall be screened by an appropriately trained physician, physician's assistant, registered nurse, or pharmacist for involuntary movements prior to initiation of therapy (except in an emergency), with all positive findings verified by a physician, and the verification documented in the individual's record. Subsequent testing shall be performed quarterly for the duration of the treatment, unless otherwise specified, by appropriately trained professional staff as described above utilizing a recognized examination procedure for abnormal involuntary movement. Results shall be documented in the individual's record. Abnormal findings shall be reviewed and verified by a physician. Psychiatric or neurologic consultations will be obtained as clinically indicated, and at the first examination which suggests a diagnosis of tardive dyskinesia. A diagnosis of tardive dyskinesia will only be made by a psychiatrist or neurologist. (e) Quarterly pharmacist's review. (1) At least quarterly, a pharmacist with input from appropriate members of the individual's IDT shall review the drug regimen of each individual consistent with the "Medication Audit Criteria and Guidelines" referred to herein as Exhibit A. (2) The pharmacist must report any irregularities in the drug regimen to the prescribing physician and IDT. The pharmacist must prepare and maintain a record of each individual's drug regimen review. (f) Annual withdrawal. Withdrawal from psychotropic medication shall be attempted in a clinically appropriate manner at least annually, unless clinical evidence is provided and documented in the individual's record that attempted withdrawal is contraindicated. The IDT shall have input and participate in the determination, and will participate in clinical and behavioral monitoring as needed. (g) Laboratory and other evaluations. After medication is initiated, laboratory and other evaluations shall be carried out as clinically appropriate. Relevant hematologic and other body systems shall be examined at least every 12 months. (h) Medication concentration in fluids and tissues. Concentrations of medication in body fluids or tissues shall be determined when possible and clinically indicated, provided appropriately valid and reliable laboratory measures are available. sec.405.34. Prescribing of Psychotropic Medication for Special Populations. (a) Respite services. (1) Prior to administration of any psychotropic medication to an individual receive respite services, the facility physician shall review the psychotropic medication regimen and, if appropriate, order administration of the medication. (2) When an individual admitted for extended respite services is taking psychotropic medication, the facility will attempt to obtain current medical and psychiatric record summaries from the individual's outside attending physician or psychiatrist. (A) If the facility physician determines the psychotropic medication regimen is not appropriate, the facility physician may choose to change the regimen consistent with clinical need and the provisions of this subchapter. The facility physician will seek the input and participation of the IDT (if one exists), confer with the individual and/or family/guardian of the individual, as appropriate, and the outside prescribing physician, if available, to discuss the proposed changes. The facility physician, if not a fully qualified psychiatrist, shall obtain a psychiatric consultation prior to any significant change and shall attempt to notify the outside prescribing physician of the change. (B) If, in the opinion of the facility treating physician, the preadmission psychotropic medication regimen is appropriate, the medication will be continued. (b) Children/Adolescents. In cases in which large doses of psychotropic medication not usually recommended for pediatric use are warranted, justification and consultation with a fully qualified psychiatrist, preferably a child psychiatrist, must be documented in the individual's record. (c) Pregnant or nursing individuals. When, based upon consideration of potential benefits and risks, psychotropic medication is required during pregnancy or nursing, the following will occur: (1) Except in emergency, consultation will be obtained from an obstetrics consultant or the physician currently managing the pregnancy (in the case of pregnant individuals) OR from a pediatrician or the physician currently managing the infant (in the case of nursing individuals), prior to prescribing. (2) A summary of current treatment, including diagnosis and medications, will be communicated to the physician or clinic (if any) providing prenatal or postnatal care. (3) The actions taken in paragraphs (1) and (2) of this subsection will be documented in the individual's record. (d) Other special clinical populations. The facility physician will be aware of special medication issues, and consider consultation with an appropriate specialist, before prescribing psychotropic medication for persons with particular clinical or risk factors associated with their treatment. In addition to children and adolescents and pregnant or nursing individuals, such persons include the elderly, persons with alcohol and or drug abuse/dependency, and persons with a general medical condition which may significantly affect psychiatric diagnosis or treatment. sec.405.36. Use of Medication Commonly Considered Psychotropic for Nonpsychiatric and Non-Behavioral Conditions. Medications commonly considered psychotropic but prescribed for a nonpsychiatric or non-behavioral symptom, sign, or condition (e.g., spasticity), are not considered "psychotropic" for purposes of this rule. Ordinary prescribing rules and standards will apply. sec.405.37. Quality Improvement. (a) Each state school and state center shall maintain a pharmacy and therapeutics committee (PTC). The PTC will be composed of at least two physicians, one pharmacist, and one registered nurse. (b) On a quarterly basis, the chief pharmacist will submit to the PTC a summary of findings regarding use of psychotropic medication as determined by the quarterly drug regimen review. (c) The PTC shall consider potential problems with utilization of psychotropic medication, findings, conclusions, recommendations, action taken, and results of actions taken. The minutes of the meeting will reflect active physician participation in the psychotropic medication use evaluation process. The minutes or portion of the minutes applicable to medication audit will be maintained in a file in the office of the medical director or the director of quality assurance or management and program evaluation of each facility, subject to outside inspection or review only upon authorization of the director, Legal Services. (d) The PTC shall forward a summary of its recommendations to the facility's chief physician, who shall share the summary with executive staff. The summary will include known trends or potential problem areas requiring improvement. (e) The TXMHMR Executive Formulary Committee or other duly appointed departmental bodies will, upon request of the commissioner or the TXMHMR medical director, be authorized to review representative minutes to determine facilities' compliance with this section. (f) The actions of the PTC shall be considered part of the quality assurance process of each facility, each of which is a healthcare organization as defined in Texas statute. As such, the actions, minutes, reports and data used by the committee shall be confidential and privileged to the fullest extent allowed by law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on July 28, 1994. TRD-9445850 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: August 19, 1994 Proposal publication date: April 29, 1994 For further information, please call: (512) 206-4516 Subchapter C. Life-Sustaining Treatment 25 TAC sec.sec.405.51-405.62 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.sec.405.51-405.62 (concerning life-sustaining treatment) . The repeal of the sections is adopted contemporaneously with the adoption of the new sections which replace them, new Chapter 405, Subchapter C, also concerning life-sustaining treatment. The new subchapter updates terminology and references and addresses the issue of advance directives as they relate to life-sustaining treatment. No public comment was received concerning adoption of the proposed repeals. The repeals are adopted under the Texas Health and Safety Code, sec.532.015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on July 28, 1994. TRD-9445847 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: August 19, 1994 Proposal publication date: May 27, 1994 For further information, please call: (512) 206-4516 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.405.51-405.62, concerning life-sustaining treatment. Sections 405.53-405.55 and 405.57-405.59 are adopted with changes to the proposed text as published in the May 27, 1994, issue of the Texas Register (19 TexReg 4084). Sections 405.51, 405.52, 405.56, and 405.60-405. 62 are adopted without changes and will not be republished. The new sections are adopted contemporaneously with the repeal of the subchapter they would replace, also known as Chapter 405, Subchapter C, relating to life-sustaining treatment. The new subchapter updates terminology and references and addresses the relationship between advance directives and determination of resuscitative status. Throughout the document, the term "factually incompetent" is replaced with "incompetent" as defined in the subchapter. In addition, references to the involvement of the "legal guardian and/or family" are revised to read, "legal guardian, if any, or the family" to clarify legal responsibility. The definition of "resuscitative status" in sec.401.53 is revised to clarify the meaning of the term "morbidity," and a definition for "residential facility" is added. Section 405.54 is revised to clarify that a competent individual must be allowed the right to determine resuscitative status. Section 405.59 is revised to delete language addressing actions to be taken in the event a person served has executed an advance directive; the language is moved to sec.405.58, which addresses decision-making for persons who have issued directives. Written comments on the proposed subchapter were received from two individuals. One commenter offered recommendations for changes. A commenter noted appreciation for careful attention to the details of developing rules necessary for the implementation of laws governing the function of the department. Concerning sec.405.53, a commenter recommended adding guidelines to the definition of "directive" concerning how a legal guardian of an incompetent person might execute an advance directive for the incompetent person. The department responds that the Natural Death Act does not permit a legal guardian to execute an advance directive on behalf of an incompetent person. The commenter also requested the addition of definitions for "morbidity" and "palliative measures." The department responds that "palliative measures" is provided within the definition of "resuscitative status" as part of subparagraph (C). The term "illness" is added in reference to "morbidity" within the definition of "resuscitative status." Regarding sec.405.54(a), a commenter recommended revising language to clarify that an order not to resuscitate would only be appropriate if the person served were terminally ill. The department responds that such an order might also be appropriate if an individual were involved in a serious accident that resulted in a catastrophic condition. The current language ("would be most appropriate") recognizes that other similar situations exist. Concerning sec.405.54(b)(1), a commenter noted that the competent person should be given the right to determine the resuscitative status rather than "consensual partnership in the determination." The department agrees, and language is revised. The same commenter noted that the decision should be made with the consultation of the legal guardian, and recommended that the family only be a part of the decision-making process if the legal guardian elected to include them. The commenter recommended deleting the term "and/or" and replacing it with "and." The department agrees that if a legal guardian has been appointed, he or she has the ultimate decision-making authority. Language is revised to read, "legal guardian, if any, or the family." With regard to sec.405.55(a)(3), a commenter stated that the decision should be made by the legal guardian and not by the physician. The commenter questioned the reason for allowing the physician to have any decision-making power. The department responds that the resuscitative status categorization process is modeled after processes used in the private sector. In the absence of an advance directive outlining the individual's wishes, the physician must be involved in the process for the purpose of evaluating the individual's medical condition and making a recommendation. If the physician feels he or she cannot honor the legal guardian's wishes, the legal guardian is free to seek another physician. The same commenter also questioned the requirement for a physician's review of the categorization in sec.405.55(d), noting that the physician should not be allowed to make the decision unilaterally. The department responds that the physician must review the medical condition of the individual to determine whether he or she still remains in the "qualified person served" category. If the physician recommends a change, he or she discusses this with the legal guardian/family as previously outlined in the subchapter. The physician does not make the decision unilaterally. The commenter also noted that having to consider resuscitative status is added stress for family members, and wondered why it was necessary to review it at all. The department responds that the seriousness of the situation requires its consideration. In the event of a terminal condition, the people caring for a person served need to know the family's wishes concerning life-sustaining treatment so that treatment to the contrary is not provided. Concerning sec.405.56(b), a commenter requested that language be revised to reflect that the physician "shall make every effort to transfer the person served." The department responds that the current language, which reads, "shall make a reasonable effort" is the language found in statute (Natural Death Act). With regard to sec.405.57(a)(3), a commenter suggested that since only a competent person can complete a directive, it seemed odd to allow a person to revoke a directive without regard to competency. The department responds that provisions allowing an individual to revoke a directive regardless of competency are found in statute (Natural Death Act). Concerning sec.405.59(a), a commenter opposed the involvement of physicians in the decision-making process concerning resuscitative status for a person who is not competent and who has not completed a directive. The department responds that the physician must be involved to determine the individual's medical condition and determine whether or not the individual meets the criteria for "qualified person." Only in such a case would a resuscitative status category of II or III be appropriate. A commenter recommended revising sec.405.60(b) to limit participation by other advocacy groups to situations in which families' groups declined to participate. The commenter also recommended replacing the term, "parents' groups," with "families' groups." The commenter noted that many brothers and sisters are members. The department responds that other advocacy groups might also include brothers and sisters and parents and many other interested and affected parties, and therefore should not be limited in participation more than other groups. Concerning the responsibilities of the ethics committee as outlined in sec.405.60(c), a commenter noted that the ethics committee should not be making any decisions. The department agrees; sec.405.60(d) notes that the ethics committee only makes recommendations. The new sections are adopted under the Texas Health and Safety Code, sec.532. 015, which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. sec.405.53. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise: Competent-Possessing the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to any proposed treatment decision. Consulting-The descriptor for persons not employed by the Texas Department of Mental Health and Mental Retardation who serve on an ethics committee on a voluntary basis, i.e., without monetary or other tangible compensation. Directive-Written or oral expression by a competent adult of his or her desires regarding life-sustaining treatment in the event of an occurrence of a terminal condition as certified by two physicians, one of whom is the attending physician, which meets the legal requirements of the Natural Death Act. Types of advance directives include the "Directive to Physicians/Living Will" and the "Durable Power of Attorney for Health Care Decisions." Ethics committee -An advisory committee of facility staff, consulting professionals, and advocates, whose purpose is to provide advice and consultation to physicians, parents, guardians, and family members regarding treatment decisions concerning qualified persons served. Facility-Any state hospital, state school for persons with mental retardation, state center, or other institution of the Texas Department of Mental Health and Mental Retardation, and any organizational entity that hereafter may be made a part of the department. Family-The spouse, reasonably available adult children, parent(s), siblings, or nearest relative of the person served. Incompetent-Lacking the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefit and harms of and reasonable alternatives to any proposed treatment decision. Legal guardian -The person who, under court order, is the guardian of the person of the person served. Life-sustaining treatment -A medical procedure or intervention which utilizes mechanical or other artificial means to sustain, restore, or supplant a vital function. Person served-A person receiving residential services from a facility of the Texas Department of Mental Health and Mental Retardation. Qualified person served-A person served diagnosed and certified in writing to have a terminal condition by two physicians, one of whom is the attending physician, and both of whom have personally examined the person served. Residential facility -All state hospitals, state schools, and state centers providing 24 hour residential services to persons with mental retardation or mental illness. Resuscitation-Act of reviving from apparent death or unconsciousness. Resuscitative status categories-Categories of intervention for persons served, as follows: (A) Category I: Maximum therapeutic effort-Intervention in which everything reasonably necessary will be done to reduce mortality and morbidity (illness), including transfer to a medical facility for additional services; (B) Category II: Therapeutic effort with no heroics -Intervention in which conservative therapeutic and supportive measures will be performed to reduce mortality and morbidity, excluding initiation of endotracheal intubation and external cardiac massage. Defibrillation, surgical intervention, hyperalimentation, or implementation of other measures deemed extraordinary may be restricted or excluded. This category of intervention is only designated when a person served is qualified (see sec.405.54 of this title, relating to Resuscitative Status Policy); and (C) Category III: Palliative measures only-Intervention in which measures directed toward reducing pain and enhancing the comfort and dignity of the person served will be maintained. However, no resuscitative measures will be performed. This category of intervention is only designated when a person served is qualified (see sec.405.54 of this title, relating to Resuscitative Status Policy). Terminal condition -An incurable or irreversible condition caused by injury, disease, or illness, which without the application of life-sustaining procedures, would, within reasonable medical judgment, produce death, and for which the application of life-sustaining procedures would serve only to postpone the moment of death of the person served, i.e., death would result within a relatively short time without application of such procedures. sec.405.54. Resuscitative Status Policy. (a) The resuscitative status of a person served is an integral part of the overall evaluation of the medical care of the person served. An order not to resuscitate (Category II or III) will be given only for a qualified person served and should be based on a judgment that resuscitation is an ethically extraordinary and non-obligatory procedure for prolonging his or her life. Such an order would be most appropriate when the person served is terminally ill and resuscitation would only prolong the dying process. (b) Resuscitative status should be discussed with the person served (or legal guardian) and his or her family in advance of a medical emergency. When a determination of that status is being made by the person served (or legal guardian), family, and physician, the following considerations are recommended: (1) The competent person served must be allowed the right to determine resuscitative status. If the person served is incompetent (as defined in this subchapter), comatose, or incapable of communication, the decision should be made with the consultation and consent of his or her legal guardian, if any, or family. Because the wishes of the person served, if known, are to be honored, an expression of those wishes made when he or she was competent and capable of communication, e.g., in a directive issued in accordance with the Natural Death Act, should be respected and followed. (2) Persons served who are comatose are living human beings whose lives are to be valued; however, this does not mean that all technologies for prolonging life are appropriate or obligatory. (3) Age, handicaps, economic status, or incompetency should not be determinants of resuscitative status. (4) Category II status normally reflects a decision to pursue a conservative therapeutic effort in the face of a chronic disabling illness. There may be persons served with such severe recurring complications that resuscitation would be contraindicated even though they are not in the final stages of a single, defined terminal illness. The physician, with the consultation and consent of the person served, or, if the person served is unable to participate in decision-making, his or her legal guardian, if any, or family, may order the further restriction of other measures. In such cases, although treating the intervening illness remains the primary goal, full resuscitation could be considered non-obligatory and a Category II order would be appropriate. (5) A Category III order does not indicate withdrawal of palliative procedures. A person served for whom such an order has been written will receive all the usual care given to enhance comfort, dignity, safety, and a sense of well-being. (6) In any problematic case involving a Category II or III designation or when a person served with a Category II or III designation has no legal guardian and/or family, consultation with the facility ethics committee should be sought. (c) In the event a person served has executed a directive as outlined in sec.405.57 of this title (concerning Legal Expression Through Directive Under the Natural Death Act), the provisions regarding life-sustaining treatment outlined in the directive shall supersede any resuscitative status category. sec.405.55. Determination and Implementation of Resuscitative Status Order. (a) All persons served will be initially evaluated on an individual basis as to resuscitative status by the attending physician. Normally this evaluation will be made on admission to services but in all cases within one year of admission. (1) If the attending physician does not categorize the person served, he or she will automatically be considered Category I. (2) If the person served is competent and wishes to be classified Category II or III, the request will be honored. (3) When the person served is incompetent, comatose, or incapable of communication, the wishes of the legal guardian and family will be honored, provided the attending physician concurs. If there is disagreement between the legal guardian and family, within the family, or between the legal guardian or family and physician, the person served will be designated Category I status until there is consensus. Consultation with the facility ethics committee should be sought. (4) If the person served is unable to give direction and has no legal guardian or family, the physician(s) should seek consultation with the facility ethics committee before designating a Category II or III resuscitative status for the person served. (b) When the condition of the person served deteriorates subsequent to initial categorization, and this contingency has not been previously addressed by the ethics committee, the person served may be reclassified by following the procedure described in subsection (a) of this section. (c) The attending physician will note in the medical record that the person served or his or her legal guardian, if any, or family have been consulted and concur with the designated status (or redesignation) and its corresponding treatment plan. Such consultations should be witnessed and documented. (d) The resuscitative status categories of II and III must be evaluated and documented by the attending physician (or his/her physician designee) at least monthly. The resuscitative status category of every person served must be reviewed at least annually, preferably at the annual staffing and should be reevaluated when there is a significant change in the clinical condition of the person served. Documentation will be in the physician's orders section and the progress notes section of the chart. If an order to renew the resuscitative status category of a person served is not updated in writing, he or she will automatically be considered Category I until redesignated by the physician. (e) When the physician has documented the need and written an order for a Category II or III designation, a form designated by the department will be placed in the chart of the person served. This form will have appropriate spaces for documentation of the periodic review. sec.405.57. Legal Expression through Directive under the Natural Death Act. (a) When an adult person served is competent to make a decision regarding life-sustaining treatment and it is clinically appropriate to do so, the person served should be informed of the provisions of the Natural Death Act and provided with a copy of the form of the directive herein adopted as Exhibit B. The desires expressed by the competent person served should be observed. (1) The directive may be made in writing at any time that the person served is competent to make such a decision. (2) The directive may also be made by a nonwritten means of communication by a qualified person served. (3) The directive may be revoked by the person served at any time, without regard to his mental state or competency. (4) The present desire of the competent person served shall at all times supersede a directive. (5) A competent adult person served can designate a person to make a treatment decision in the event that the person served becomes comatose, incompetent, or otherwise mentally or physically incapable of communication. (b) A directive may be made on behalf of a qualified person served who is under 18 years of age by his or her spouse, if the spouse is an adult, or by the parents or legal guardian of the person served. However, such a directive can be overridden by the contrary desire of a competent person served, even if he or she is under 18 years of age. (c) Although only a competent person may execute an advance directive, all persons served shall receive information about the right to execute advance directives upon admission. sec.405.58. Decision-making under the Natural Death Act for Persons Served Who Have Issued Directives. (a) If the person served has executed an advance directive, the directive shall be attached to the person's chart and/or medical record. Such directives are evidence of the person's wishes if/when he or she becomes a qualified person served and shall be honored. Directives are not necessarily related to resuscitative status unless the person served is already a qualified person (i.e., a person who has a terminal condition). Persons who are not qualified persons should remain in resuscitative category I, regardless of an advance directive. Should the person served develop a life-threatening condition, the directive will assist the facility in determining resuscitative status category based on the desires expressed in the directive. (b) When a person served is incompetent to make a decision regarding life- sustaining treatment but was previously competent and at that time designated a person through directive to make such a decision, the person so designated will be accorded decision-making power. (c) When a person served is unable to communicate and has previously issued a directive without designating a person to make treatment decisions, the attending physician shall comply with the directive unless the physician believes that the directive does not reflect the present desire of the person served. sec.405.59. Decision-making under the Natural Death Act for Persons Served Who Have Not Issued Directives. (a) When a person served is incompetent to make a decision regarding life- sustaining treatment, has not previously issued a directive while competent, and has a legal guardian, the legal guardian, along with the attending physician, can make a decision based on knowledge of what the person served would desire, if known. (b) When a person served is incompetent to make a decision regarding life- sustaining treatment, has not previously issued a directive while competent, and does not have a legal guardian, at least two of the following persons, in order of priority, as available, along with the attending physician, can make the decision: the spouse, a majority of the reasonably available adult children, the parents, or the nearest living relative of the person served. (c) When a person served is unable to give direction regarding life-sustaining treatment; has not, while competent, issued a directive or designated another person to make such a decision; does not have relatives as described in subsection (b) of this section or such relatives are unavailable or unwilling to participate in decision-making; and has no legal guardian, the appointment of a legal guardian should be sought by the facility to the extent authorized by law or, in acute situations, the provisions of sec.405.60 of this title (relating to Ethics Committee), should be followed. 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 28, 1994. TRD-9445848 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: August 19, 1994 Proposal publication date: May 27, 1994 For further information, please call: (512) 206-4516 Subchapter I. Consent to Treatment with Psychotropic Medication -Mental Retardation Facilities 25 TAC sec.sec.405.201-405.209 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.405.201-405.209, concerning COnsent to Treatment with Psychotropic Medication-Mental Retardation Facilities. Sections 405.201 and 405.203-405.206 are adopted with changes to the proposed text as published in the April 29, 1994, issue of the Texas Register (19 TexReg 3220). Sections 405.202 and 405.207-405.209 are adopted without changes and will not be republished. In addition to establishing procedures for obtaining informed consent for treatment with psychotropic medications for persons admitted to mental retardation facilities, the new subchapter establishes guidelines for determining the appropriateness of treatment with psychotropic medications for persons who are judicially committed. The new subchapter includes a requirement that consent be reviewed and renewed on at least an annual basis, and requires that individuals be informed of their right to withdraw consent to treatment at any time. The pronoun "his" is replaced with "his/her" throughout the document. Section 405.201 is revised to clarify that the subchapter outlines procedures to be used to ensure due process for all persons who have been committed involuntarily. A definition of "capacity" is added to sec.405.203, as are definitions for "interdisciplinary team" and "objection to treatment." The definition of "committed person" is revised to reflect other provisions under which an individual could be committed to a mental retardation facility. The definition of "emergency" is revised to correspond with the definition of "emergency" in Chapter 405, Subchapter B (concerning Prescribing of Psychotropic Medication - Mental Retardation Facilities). Definitions for "interdisciplinary team (IDT)" and "objection to treatment" are added. Section 405.204(b) is revised to reflect that psychotropic medications shall only be prescribed by a physician. The term "legal capacity" is replaced with "capacity" in sec.405.205(b); the subsection is further revised to clarify that an individual who does not have a legally authorized representative may consent to medication if the individual meets the criteria for capacity outlined in sec.405.203. The phrase "judicial commitment" is deleted from sec.405.206 and replaced with "committed person" as defined in sec.405.206. Section 405.206(c) is revised to clarify that the recommendation is made by the physician with input from the interdisciplinary team, and the provision of information necessary to informed consent should be documented in the record of the individual. New sec.405.206(e) clarifies procedures in the event that an individual or the individual's legally authorized representative objects to administration of medication after the medication has already been initiated. Former sec.405. 206(d)(4) is redesignated as sec.405.206(f). A provision concerning the completion of a consent form for persons who have been involuntarily committed is deleted from sec.405.207. Exhibit A is revised in response to expressed concerns that the document sounded too much like it was intended for a surgical procedure than for treatment with psychotropic medication. A place for documenting the date of consent is added, as is a place for documentation of an objection to treatment. Written comments were received from The ARC of Texas, Austin, and Advocacy, Inc., Austin. Both commenters offered recommendations for changes. A commenter expressed concern about the subchapter's limited application, noting that community-based programs of state schools and community mental health and mental retardation centers are required to follow a different set of standards. The department responds that consideration was given to extending these provisions to community-based services. However, the majority of provisions found in this subchapter concern situations in which the individual has been involuntarily committed. These provisions would not apply to community- based services. The department will instead attempt to establish appropriate parallel provisions through the revision of the mental retardation community standards. Concerning sec.405.206(a), two commenters noted that a person who is not competent and does not have a legal guardian would not be able to access the due process procedure outlined. The commenters suggested extending the surrogate decision-making process now used in ICF/MR facilities to these individuals. As an alternative, the commenters recommended that the IDT, facility superintendent, or some other designated person file a petition for a limited guardian. The department responds that the legislation establishing the surrogate decision-making committees now used in ICF/MR facilities specifically states that the process shall not be used in TXMHMR facilities. During its deliberations, the interdisciplinary team (IDT) would normally consider any possibilities for best ensuring the protection of the individual; in some cases, this might lead the IDT to take steps to secure a limited guardian. With regard to sec.405.207(a), a commenter again recommended that the individual who is not mentally capable of exercising the right to object to treatment should have a limited guardian or surrogate decision-maker available to make such decisions. The department responds that the legislation establishing the surrogate decision-making committees now used in ICF/MR facilities specifically states that the process shall not be used in TXMHMR facilities. During its deliberations, the interdisciplinary team (IDT) would normally consider any possibilities for best ensuring the protection of the individual; in some cases, this might lead the IDT to take steps to secure a limited guardian. Also concerning the same section, another commenter noted that the person involuntarily committed who is not competent and who has no guardian is asked to sign a form indicating they do not object to the procedure. The commenter noted that this is a kind of reverse consent. The department agrees, and the provision has been deleted. Statutorily, the department does not require consent from these individuals. Regardless, an explanation of the medication's risks and benefits must be provided to the individual, and the fact that the information was provided must be documented. Two commenters recommended adding language to sec.405.38 requiring the department to develop a summary of the rule in simple, easy-to-understand terms and provide the document to the individual, legal guardian, or surrogate. The department responds that a simple, easy-to-read brochure has been created and will be attached to the rule and made available at facilities. No new language is added to the rule. These sections are adopted under the Texas Health and Safety Code, sec.532. 015, which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. sec.405.201. Purpose. The purpose of this subchapter is to: (1) establish requirements for informed consent for treatment with psychotropic medication for those persons who have been voluntarily admitted to a mental retardation facility; (2) provide guidelines for obtaining and documenting this consent; and (3) ensure due process for those persons who have been committed involuntarily to a mental retardation facility. sec.405.203. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise: Capacity-An individual's ability to: (1) understand the nature and consequences of a proposed treatment, including the benefits, risks, and alternatives to the proposed treatment; and (2) make a decision whether to undergo the proposed treatment. Chief physician -The medical director or clinical director of a state mental retardation facility. Committed person -A person committed to a mental retardation facility involuntarily under the provisions of the PMRA, Texas Health and Safety Code, Subtitle D; transferred to a mental retardation facility under the provisions of the Mental Health Code, Texas Health and Safety Code, Part I, Subtitle C; or committed to a mental retardation facility under other provisions, including the Code of Criminal Procedures and the Family Code. Emergency-A situation which, in the opinion of the treating physician or other appropriate professional, the immediate use of medication is necessary for acute treatment or essential to interrupt imminent danger to the person served or others. Fully qualified psychiatrist-A physician, licensed to practice medicine in Texas, who has completed approved residency training in psychiatry, or a fully licensed physician with at least one year of psychiatric training who is under the supervision of a board-certified psychiatrist. Informed consent -Voluntary consent given by a person or the legally authorized representative of the person admitted to a mental retardation facility under the voluntary or Order of Protective Custody (OPC) provisions of the PMRA. The basic elements of information necessary to informed consent, and ongoing counselling with the patient regarding his or her care, must be provided by the treating physician or his/her designee in simple, non-technical terms in the person's primary language or mode of communication. The information necessary to provide for informed consent includes: (A) a fair explanation of the procedures to be followed and their purposes; (B) a description of any attendant discomforts and risks reasonably to be expected; (C) a description of any benefits reasonably to be expected; (D) a disclosure of any appropriate alternative procedures that might be advantageous to the person served as well as the potential risks and benefits associated with that alternative; (E) an explanation of the risks or benefits and potential consequences associated with refusal of treatment; (F) an offer to answer any questions concerning the procedures; and (G) an instruction that the consent may be withdrawn at any time without prejudice to the client. Interdisciplinary team (IDT)-A group of MR service professionals and paraprofessionals plus other concerned persons, including the individual and, if applicable, the individual's legally authorized representative, who assess the individual's treatment, training, and habilitation needs and make recommendations for services. Legally authorized representative-The parent, managing conservator, or guardian of a minor; or the guardian of the person of an adult; or the limited guardian of an adult, who has been granted specific authority to consent to such decisions. Medically appropriate treatment-Treatment with psychotropic medication based on a physician's judgment that such medication is clinically indicated and that the medication's potential benefits outweigh its potential risks. Mental retardation facility-All state facilities providing 24-hour residential services to persons with mental retardation. The term applies to the campus-based programs of state schools and state centers, but does not apply to multiple disability units of state hospitals or to community-based facilities of the department. Minor-A person under 18 years of age who is not and has not been married or who has not had disabilities of minority removed for general purposes. Objection to treatment-Actions which indicate a refusal to agree to administration of psychotropic medication, including, but not limited to, the following actions: (A) The individual or the individual's legally authorized representative communicates orally, through sign language, through communication device, or in writing that he/she refuses psychotropic medication. (B) The individual communicates through behavior that he/she refuses psychotropic medication. (C) The individual pretends to swallow oral psychotropic medications and the attending physician determines that the pretending behavior is due to an unwillingness to take the medication. Outside consultant -A fully qualified psychiatrist providing services to the facility on a contract-only basis for the purpose of providing a second opinion in the event a committed person or his/her legally authorized representative objects to the administration of psychotropic medication. The outside consultant shall be a psychiatrist other than the psychiatrist involved in the initiation and/or ongoing evaluation of the individual for whom psychotropic medications have been prescribed. Psychotropic medication -Any medication which is prescribed for the primary purpose of, and with the primary intent of, improving cognition, affective state, and/or behavior. sec.405.204. General Information. (a) Documentation. Each step of the procedure outlined in this subchapter shall be clearly documented in the person's clinical record. (b) Prescribing of psychotropic medications. This subchapter establishes guidelines for obtaining informed consent for administration of psychotropic medications. Such medications will only be prescribed by a physician in accordance with the guidelines established in Chapter 405, Subchapter B of this title (relating to Prescribing of Psychotropic Medications-Mental Retardation Facilities.) (c) Emergencies. Nothing in this subchapter is intended to preclude the administration of psychotropic medication to any person in an emergency as defined in sec.405.203 of this title (relating to Definitions) and as outlined in Chapter 405, Subchapter B of this title (relating to Prescribing of Psychotropic Medications-Mental Retardation Facilities). sec.405.205. Informed Consent: Persons Admitted Under the Voluntary or Order of Protective Custody (OPC) Provisions of the (PMRA). (a) Psychotropic medication will not be administered to persons admitted to a mental retardation facility under the voluntary or Order of Protective Custody (OPC) provisions of the PMRA without first obtaining informed consent or when existing consent has been withdrawn, except as provided in sec.405.204 of this title (relating to General Information). (b) Informed consent to administer psychotropic medication may be given by the legally authorized representative of a person admitted under the OPC provisions of the PMRA, or by the person who does not have a legally authorized representative if he or she meets the criteria for capacity described in sec.405.203 of this title (relating to Definitions). (c) Persons who are admitted under the voluntary provisions of the PMRA are presumed to have the legal capacity to give informed consent. sec.405.206. Informed Consent: Persons Involuntarily Committed Under the Provisions of the PMRA or Other Provisions (e.g., Code of Criminal Procedures, Family Code). (a) Committed persons do not require informed consent for medically appropriate treatment, although such persons or their legally authorized representatives objecting to the treatment will be afforded due process, as outlined in subsection (d) of this section. (b) Committed persons receiving psychotropic medication at the time of admission may be continued on that medication until the development of the individual habilitation plan (IHP) by the interdisciplinary team (IDT), within 30 days of admission. (c) On recommendation of the physician with input from the interdisciplinary team, the superintendent/director or his/her designee may authorize continued use or initiation of the use of psychotropic medication for a committed person. In such a case, the person and his or her legally authorized representative will be provided information necessary to informed consent, including the risks and benefits of the prescribed psychotropic medication, and will be informed of his or her right to object to the treatment. The provision of the information shall be documented in the record of the individual. (d) If a committed person or his/her legally authorized representative objects to the administration of psychotropic medication, the following review procedure will be initiated: (1) The chief physician of the mental retardation facility will ensure that an outside consultant psychiatrist will, within 14 calendar days of the person's objection or that of his or her legally authorized representative: (A) personally examine the person; (B) interview the person and his or her legally authorized representative, if the representative is available; (C) review the clinical record; (D) discuss the case with the treating physician; and (E) make a determination concerning the appropriateness of treatment with psychotropic medication. (2) Psychotropic medication may be administered if the outside consultant determines that the administration of such medication is medically appropriate treatment. In making this determination, the outside consultant will consider: (A) the accuracy of the diagnosis; (B) indications for the medication; (C) probable benefits and risks of the medication; (D) the existence and value of alternative, less restrictive forms of treatment, if any; and (E) whether the medication promotes greater functional independence. (e) If psychotropic medication has been administered to the individual without objection and the individual or the individual's legally authorized representative later objects to the medication, administration of the medication may be continued until the review procedure set out in subsection (d) of this section has been conducted. If the outside consultant determines that the administration of a psychotropic medication is not medically appropriate treatment, the administration of such medication will be discontinued within a reasonable period of time based on the condition of the person and the type and dosage of medication being administered pursuant to the professional judgment of the treating physician. (f) Ongoing evaluation of individuals administered psychotropic medications pursuant to a determination under subsection (b) of this section, will be in keeping with provisions outlined in sec.405.59 of this title (relating to Prescribing of Psychotropic Medications). 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 28, 1994. TRD-9445849 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: August 19, 1994 Proposal publication date: April 29, 1994 For further information, please call: (512) 206-4516 Chapter 406. ICF/MR Programs Subchapter A. General Requirements 25 TAC sec.sec.406.1-406.4 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.406.1-406.4, concerning general requirements, without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4686). The provisions of the new subchapter concern general requirements for participation in the intermediate care facilities for the mentally retarded program in Texas. The new rules are substantially the same as rules of the Texas Department of Human Services (TDHS) contained in 40 TAC sec.sec.27.101, 27. 103, and 27.105, governing the same matters. The primary difference between the two documents is that agency names have been modified to reflect the changing responsibilities as ICF/MR state operating agency functions are transferred from TDHS to TXMHMR. This transfer is enacted under the authority of the Health and Human Services Commission as the Medicaid single state agency pursuant to House Bill 7 of the 72nd Texas Legislature and the Medicaid State Plan. A public hearing was held on July 7, 1994, in the department's Central Office in Austin. No comments were received regarding adoption of the rule. The sections are adopted under the Texas Health and Safety Code, sec.532. 015(a), which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking powers; and under the provisions of Texas Civil Statutes, Article 4413(502) sec.16, which provide the Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on July 28, 1994. TRD-9445860 Ann Utley Chairman, Texas MHMR Board Texas Department Mental Health and Mental Retardation Effective date: September 1, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 206-4516 Subchapter B. Contracting Requirements 25 TAC sec.sec.406.51-406.67 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.406.51-406.67, concerning contracting requirements. Section 406.53 and sec.406.57 are adopted with changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4687). Sections 406.51, 406.52, 406.54-406.56, and 406.58-406.67 are adopted without changes and will not be republished. The provisions of the new subchapter concern contracting requirements in the intermediate care facilities for the mentally retarded program in Texas. The new rules are substantially the same as rules of the Texas Department of Human Services (TDHS) contained in 40 TAC sec.sec.27.201, 27.203, 27.205, 27.207, 27.209, 27.211, 27.213, 27.215, and 27.217 and 40 TAC sec.sec.69.233, 69.261, 69.268, 69.275, 69.276, 69.277, 69.278, and 69.279, governing the same matters. The primary difference between the two documents is that agency names have been modified to reflect the changing responsibilities as ICF/MR state operating agency functions are transferred from TDHS to TXMHMR. This transfer is enacted under the authority of the Health and Human Services Commission as the Medicaid single state agency pursuant to House Bill 7 of the 72nd Texas Legislature and the Medicaid State Plan. A public hearing was held on July 7, 1994, in the department's Central Office in Austin. No testimony was offered. Written comments were received from the Private Provider Association of Texas; Concept Six, Concho Capital Corporation, and Rock House Inc., all private providers within the ICF/MR program; and six individuals who are the parents of adult children with mental retardation. One commenter questioned whether the department would be incorporating recent TDHS amendments to the current provider application rule in 40 TAC Chapter 27. The department responds that amended TDHS provisions, which have an effective date of August 1, 1994, have been incorporated into sec.406.53. One commenter indicated that incorporating references to the TXMHMR Contracts Management rule (Chapter 402, Subchapter E) renders the rule difficult to track. The department acknowledges that the combined TXMHMR/TDHS rules are difficult to track; however, the subchapter was proposed without major revisions to the text of the existing TDHS rule to ensure that ICF/MR state operating agency functions are transferred from TDHS to TXMHMR in a timely fashion. The department will revisit both rules once this subchapter is adopted to clarify points of ambiguity and delete repetition. The existing TXMHMR Contracts Management rule currently is under revision. Several commenters questioned the use of the terms "best interest" and "for cause." The department responds that the subchapter was proposed without major revisions to the text of the existing TDHS rule to ensure that ICF/MR state operating agency functions are transferred from TDHS to TXMHMR in a timely fashion. The rules will be revisited following adoption to identify points of clarification, repetition, or revision. Several commenters noted that language in sec.406.57 was open to interpretations that would result in additional contracting requirements. The department concurs that the language limits the flexibility of providers to enter into contracts necessary for the provision of professional services and has deleted the first sentence in subsection (b) and all of subsection (d) that required prior approval of contracts by the department. Several commenters commented on the debarment and suspension provisions stating they were unsure of the difference between the two types of rules. The department responds that these provisions will be evaluated as each of the eight subchapters concerning the ICF/MR program are revisited following adoption. In addition, the department notes that all applicable rules will be distributed to program providers and that these issues and possible recodification will be considered as topics for future training sessions. The sections are adopted under the Texas Health and Safety Code, sec.532. 015(a), which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking powers; and under the provisions of Texas Civil Statutes, Article 4413(502) sec.16, which provide the Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. sec.406.53. Provider Application Requirements Specific to ICF/MR. (a) The words and terms in paragraphs (1)-(3) of this subsection, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise: (1) Applicant-The individual(s) and/or entities specified on TXMHMR's facility ownership information form who: (A) operate a for-profit organization; (B) serve as the authorizing entity for a nonprofit organization; or (C) have management or ownership control. (2) Affiliate-An individual or entity associated with the applicant so that any one of them directly or indirectly controls or has the power to control one another in whole or in part. (3) Designated representative-The chief executive officer, the chief financial officer, the president or executive director, or other individual who serves in an upper management, decision-making capacity and has financial responsibility for the proposed facility. (b) All applicants for participation in the Intermediate Care Facility for the Mentally Retarded (ICF/MR) Program must submit an application to the Texas Department of Mental Health and Mental Retardation (TXMHMR) for review and approval. The application must include documentation to verify the applicant's ability to ensure the delivery of quality care and services. (1) The documentation submitted must indicate that the following persons will have completed the ICF/MR preapplication training course prior to approval of the application: (A) the applicant and/or a designated representative, other than a consultant; and/or (B) the individual who will be responsible for the direct management of the facility; or (C) those who, at the time of application, are not owners of an ICF/MR facility in the Texas ICF/MR Program. (2) If the employment status of the persons specified in paragraph (1) of this subsection changes prior to approval of the application, approval of the application will be postponed until the appropriate persons complete the training. (c) All applications are limited to one level-of-care classification (I, V, VI, or VIII) and must meet the requirements specified in paragraphs (1)-(5) of this subsection. (1) Requested certification is limited to a maximum of six beds per facility, except for those facilities funded only through state general revenue and being refinanced by TXMHMR during fiscal year 1994-1995. This includes new facilities seeking initial certification and currently certified facilities seeking to increase the certified bed capacity. During the 1994-1995 biennium, facilities funded only through general revenue and refinancing under the ICF/MR Program that have more than six beds must become six-bed facilities within three years from the date of TXMHMR approval of the ICF/MR application packet. (2) The proposed facility is in compliance with applicable special use permit requirements, local zoning, and/or occupancy code requirements, and sec.406.51 of this title (relating to Participation Requirements). The proposed facility must also meet the specifications described in subparagraphs (A) and (B) of this paragraph: (A) The applicant must submit information about the proposed facility which addresses the services detailed in clauses (i)-(iv) of this subparagraph. (i) Availability of 24-hour emergency medical services, utility services, fire protection, police and sheriff protection, waste water, and garbage disposal. (ii) If the proposed facility intends to serve individuals who are eligible for educational services, the application must include documentation to verify that the local school district has been notified of the development of the proposed facility. (iii) If the proposed facility intends to serve individuals who are 22 years of age and older, the application must include a description of how the program intends to provide and/or support the delivery of vocational, day habilitation, or supported employment services. (iv) If the services are to be provided by an entity other than the applicant or facility, the service provider must submit documentation of his intent to provide services to the individuals who will be residing in the proposed facility. If commensurate wages will be earned by individuals in a vocational services setting provided by the applicant, documentation of Department of Labor Certification is required. (B) The applicant must submit documentation that the proposed facility is not within a one-half mile radius of another ICF/MR, except in those community care facilities that were refinanced by TXMHMR during fiscal year 1994-1995. (3) A needs assessment has been conducted to include the following: (A) The applicant must submit a statement concerning the known number of developmentally disabled persons residing in the community and surrounding geographic area who can benefit from the services provided by the facility. (B) The applicant must submit documentation to verify that the Mental Retardation Authority in whose catchment area the proposed facility is located has been notified of the development of the proposed facility and the proposed facility's admission criteria. The applicant must obtain and submit two letters which address the need for the facility from the following sources: the superintendent of the state school and/or the executive director of the MHMR center in whose catchment area the proposed facility is located, advocacy groups, developmental disability service providers and organizations, school districts, and/or other appropriate developmental disability referral sources. Letters from individuals who have a financial interest in the proposed facility are not acceptable. The letters must: (i) refer specifically to the proposed facility by name and/or address; (ii) be current within six months prior to the submission of the application; and (iii) be printed on the letterhead of the acknowledging entity. (C) If the facility serves individuals qualifying for Level-of-Care VIII services, the applicant must additionally submit documentation that verifies that the regional DHS office and at least two other appropriate developmental disability referral sources, such as Head Injury Foundation and Spina Bifida Foundation, have been notified about the development of the proposed facility. (D) The applicant must submit a written description of the resident group to be served, including admission criteria. (4) If the applicant plans to serve individuals qualifying for Level-of-Care I or VIII services, the applicant must submit a written description of alternatives for semi-independent and independent living available to the facility for those individuals who successfully complete the active treatment plan and evidence ability to move to a less restrictive placement. In the absence of these alternatives, the applicant must present evidence of having initiated planning for the development of these alternatives. (5) Facilities that are in the application process prior to initial certification, certified facilities, and licensed facilities requesting to reclassify must withdraw from the program and submit a new application for the new level of care. (d) The applicant has 270-calendar days from the date an application for participation in the ICF/MR program has been approved by TXMHMR to obtain certification by the Texas Department of Human Services (TDHS). If, at the end of the 270-calendar-day period, the provider is unable to obtain certification, the request for program participation will be withdrawn by TXMHMR and the application will be returned to the applicant. (1) TXMHMR may grant applicants a 90-calendar-day extension for new construction delayed by inclement weather, natural disaster, construction strike, litigation, requirements of other state agencies, or other causes beyond the provider's control. New construction does not include renovations or modifications to existing structures. The request for the extension must: (A) be submitted in writing to TXMHMR prior to the end of the 270-calendar-day period; and (B) include documentation to support the circumstance which caused the delay. (2) If there is an agency delay which is not the fault of the applicant and results in failure to obtain certification within the 270-calendar-day period, an extension is granted to enable completion of the process. A copy of the written notification will be forwarded to the provider and the other state agencies involved. The length of the extensions is as follows: (A) new construction-90 days; (B) survey scheduling-not to exceed the scheduled date of survey; or (C) litigation-until: (i) litigation is resolved, plus 270 days if construction was stopped because of an injunction; or (ii) the scheduled date of survey if: (I) there was no new construction; or (II) construction was allowed to continue. (3) If an applicant must change locations following application approval by TXMHMR, the change in location must: (A) be requested within the first 30 days from the date of the original application approval and include the relocation information required by TXMHMR; (B) meet all requirements set forth in this section and be approved by TXMHMR, ICF/MR Section; (C) remain within the same geographic region as the previously approved location, as defined in TXMHMR's Plan on Long-Term Care for People with Mental Retardation or Related Conditions; and (D) not alter the applicant's ability to obtain certification within the 270- calendar-day time period set forth in this subsection. (e) To receive approval for participation, applications must meet all requirements set forth in this section and be in compliance with TXMHMR's Plan on Long-Term Care for People with Mental Retardation or Related Conditions. Applications that have not received approval from TXMHMR within a 90-calendar- day period from the date submitted will be withdrawn from the review process and returned to the applicant. (1) TXMHMR reserves the right to deny the approval of any application if the applicant or an affiliate has been excluded from Medicaid program participation under 40 TAC Chapter 79, Subchapter V (relating to Fraud and Abuse Involving Medical Providers) or debarred from contracting with TDHS under sec.sec.69.275- 69.279 of this title (relating to Debarment and Suspension of Current and Potential Contractor's Rights, Causes for and Conditions of Debarment, Causes for and Conditions of Suspension, Proof Required for Debarment and Suspension, and Notice Requirements for Debarment and Suspension) . TXMHMR also reserves the right to postpone the approval of any application if the applicant or an affiliate is currently under investigation or review for potential fraud, abuse, or misuse of Medicaid funds or for any violation for which a sanction could be taken under 40 TAC Chapter 79, Subchapters V, W, and X (relating to Fraud and Abuse Involving Medical Providers, Fraud or Abuse Involving Individual or Major Providers (Except Medical), and Recovery of Benefits Wrongfully Received). (2) As necessary, TXMHMR ICF/MR Program staff will contact the applicant to facilitate completion of the application process. Upon approval, TXMHMR will notify TDHS that the facility can begin the certification survey process. If a change in ownership or control occurs after the application is approved, but before the facility is certified, the application will be withdrawn and returned to the original owner and/or applicant. Applications are not transferable prior to certification of the facility. If a facility loses its license: (A) its certification will be revoked; and (B) the facility's provider contract will be canceled. (3) The contract for services is dependent on compliance with the provisions of this section. sec.406.57. Approval of Subcontracts. (a) Subcontracts are contracts for providing a part or all of the program components. Such contracts are between the party contracting with the department and the subcontractor. Subcontractors for ancillary or support services, such as janitorial services, are excluded. (b) No subcontract will be approved unless it contains a clause that the subcontractor agrees to accept and abide by all terms and conditions imposed on subcontractors under the primary contract between the department and the contractor. (c) The contractor must agree to require its subcontractor(s), if any, to accept and abide by each of the provisions of the contract with 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 authority. Issued in Austin, Texas, on July 28, 1994. TRD-9445859 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: September 1, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 206-4516 Subchapter C. Vendor Payments 25 TAC sec.sec.406.101-406.107 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.406.101-406.107, concerning vendor payments, without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4696). The provisions of the new subchapter concern procedures for vendor payments in the intermediate care facilities for the mentally retarded program in Texas. The new rules are substantially the same as rules of the Texas Department of Human Services (TDHS) contained in 40 TAC sec.sec.27.101, 27.103, and 27.105, governing the same matters. The primary difference between the two documents is that agency names have been modified to reflect the changing responsibilities as ICF/MR state operating agency functions are transferred from TDHS to TXMHMR. This transfer is enacted under the authority of the Health and Human Services Commission as the Medicaid single state agency pursuant to House Bill 7 of the 72nd Texas Legislature and the Medicaid State Plan. A public hearing was held on July 7, 1994, in the department's Central Office in Austin. No comments were received regarding adoption of the rules. The sections are adopted under the Texas Health and Safety Code, sec.532. 015(a), which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking powers; and under the provisions of Texas Civil Statutes, Article 4413(502) sec.16, which provide the Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on July 28, 1994. TRD-9445857 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: September 1, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 206-4516 Subchapter D. Reimbursement Methodology 25 TAC sec.sec.406.151-406.160 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.406.151-406.160, concerning reimbursement methodology. Sections 406.154, 406.157, and 406.158 are adopted with changes to the text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4686). Sections 406.151-406.153, 406.155, 406.156, 406.159, and 406.160 are adopted without changes and will not be republished. The provisions of the new subchapter concern reimbursement methodology for the intermediate care facilities for the mentally retarded program in Texas. The new rules are substantially the same as rules of the Texas Department of Human Services (TDHS) contained in 40 TAC sec.sec.27.401, 27.403, 27.405, 27.407, 27.409, 27.411, 27.413, 27.415, 27.419, and 27.421, governing the same matters. The primary difference between the two documents is that agency names have been modified to reflect the changing responsibilities as ICF/MR state operating agency functions are transferred from TDHS to TXMHMR. This transfer is enacted under the authority of the Health and Human Services Commission as the Medicaid single state agency pursuant to House Bill 7 of the 72nd Texas Legislature and the Medicaid State Plan. A public hearing was held on July 7, 1994, in the department's Central Office in Austin. No oral testimony was offered. Written comments were submitted by the Private Providers Association of Texas and the State Board of Examiners for Speech-Language Pathology and Audiology. One commenter noted that the Board of Human Services was referenced in sec.406.158(b) and suggested that it should be the Texas MHMR Board. The department concurs and has corrected the oversight. A commenter commented that the terminology for speech-language pathologists needs to be updated to reflect current licensure requirements. The department concurs and has replaced "speech therapist" with "speech-language pathologist" in sec.406.154. One commenter questioned the status of the children's alternative facility rate methodology rule. The department responds that the special provisions, which have been adopted by TDHS board in 40 TAC sec.27.413 and published in the July 15, 1994, issue of the Texas Register with an August 1, 1994, effective date, have been incorporated into sec.406.157 of this title (relating to Rate Setting Methodology) as new subsection (E). The special provisions remain in effect until September 30, 1994, as provided in the TDHS rules. The sections are adopted under the Texas Health and Safety Code, sec.532. 015(a), which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking powers; and under the provisions of Texas Civil Statutes, Article 4413(502) sec.16, which providesthe Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. sec.406.154. List of Allowable Costs. The following list of allowable costs is not comprehensive, but rather serves as a general guide and clarifies certain key expense areas. The absence of a particular cost does not necessarily mean that it is not an allowable cost. Except where specific exceptions are noted, the allowability of all costs is subject to the general principles specified in sec.406.153 of this title (relating to Allowable and Unallowable Costs). (1) Compensation of ICF/MR employees. This allowable cost includes compensation of only those employees who provide services directly to the client or staff of individual ICF/MR in the normal conduct of operations relating to client care: Qualified Mental Retardation Professionals (QMRPs); director of nursing; registered nurses; licensed vocational nurses; trainers, aides, and other salaried direct care staff; medical clerks; food service supervisor; cooks and other food service personnel; laundry and housekeeping staff; recreational staff; social workers; administrator; assistant administrator; houseparents; accountants and bookkeepers; other clerical and secretarial staff; and buildings, equipment, and grounds maintenance staff. Compensation includes: (A) wages and salaries; (B) payroll taxes and insurance, including Federal Insurance Contributions Act (FICA) or social security contributions, unemployment compensation insurance, and workmen's compensation insurance; and (C) employee benefits, including employer-paid health, life, accident, and disability insurance for employees; uniform allowances and meals provided to employees as part of an employment contract; contributions to an employee retirement fund; and deferred compensation. The allowable portion of deferred compensation is limited to the dollar amount that an employer contributes during a cost reporting period. The expense: (i) must represent a clearly enumerated liability of the employer to individual employees; (ii) must not be incurred as a benefit to employees who do not provide services directly to the recipients or staff of individual facilities; and (iii) must not represent a form of profit sharing. (2) Compensation of owners, partners, or stockholders, other than the facility administrator or assistant administrator, who provide services directly to the clients or staff of individual facilities. If the owners, partners, or stockholders are involved in other income-earning activities outside the individual facilities, the allowable compensation expense is limited to the pro rata portion of the actual working time spent in the facility. (3) Compensation of outside consultants. This includes medical director, registered nurse, social worker, pharmacist, audiologist, psychologist, recreational therapist, records librarian, physical therapist, occupational therapist, dentist, speech-language pathologist, psychiatrist, and Qualified Mental Retardation Professional (QMRP). (4) Management fees paid to unrelated parties. (5) Management fees paid to related parties, cash management expenses, and other home-office overhead expenses. Cash management expenses, other home office overhead expenses, and management fees paid to a related organization must be clearly derived from the actual cost of materials, supplies, or services provided directly to an individual facility. A facility that is owned, operated, or controlled by another individual(s) or organization(s) may report the allowable portion of costs for materials, supplies, and services provided directly to that facility. The allowable portion of such costs to a given facility is limited to those expenses that can be directly attributed to the individual establishment. (A) In multifacility organizations where the clear separation of costs to individual facilities is not always possible, the allowable portion of actual costs for materials, supplies, and services may be allocated to individual Texas facilities on a pro rata basis. Although the preferred allocation method for these costs is a resident-day-of-service basis, providers who wish to use a pro rata cost basis may do so. Once a provider has chosen an allocation method, however, he must consistently use that method in subsequent cost reports. (B) In organizations with multiple levels of management, costs incurred at levels above the individual facility in Texas are allowable only if the costs are incurred in the purchase of materials, supplies, or services directly used by facility staff in the conduct of normal operations relating to recipient care. In addition, the facility must furnish adequate documentation to demonstrate that the costs adhere to the following criteria. (i) Of the functions that Medicare and Medicaid both cover, only those required for participation in Medicaid in Texas and not reimbursed from non- Medicaid sources are allowable. (ii) The expense does not duplicate other expenses. (iii) The expense is not incurred for personal or other activities not specifically related to the provision of client care. (iv) The expense does not exceed the amount that a prudent business operator seeking to contain costs would incur. (C) Adequate documentation consists of all materials necessary to demonstrate the relationship of personnel, supplies, and services to the provision of client care. These materials may include, but are not limited to, accounting records, invoices, organizational charts, functional job descriptions, other written statements, and direct interviews with staff, as deemed necessary by auditors of TXMHMR or its authorized agent to perform required tests of allowability. During the course of an audit, the facility must furnish any reasonable documentation requested by TXMHMR or its authorized agent's auditors within 30 calendar days of the request. If the provider does not present the requested material within 30 days or during the course of the audit, whichever is longer, the audit is closed and TXMHMR or its authorized agent's automatically disallows the costs in question. (D) Expenses for private aircraft are allowable only if: (i) all criteria in subparagraphs (B) and (C) of this paragraph are satisfied; (ii) flight logs are maintained, including dates, mileage, passenger lists, and destinations, to demonstrate that trips are related to client care in Texas; and (iii) the provider furnishes documentation demonstrating that the expenses for travel via private aircraft are not greater than those for commercial alternatives. (6) Utilization review committee. This includes professional fees. (7) Materials and supplies. This includes food and nonalcoholic beverages; dietary supplements; food service supplies; cooking utensils; laundry and housekeeping supplies; office supplies; and materials and supplies for the operation, maintenance, and repair of buildings, grounds, and equipment. (8) Utilities. This includes electricity, natural gas, fuel oil, water, waste water, garbage collection, telephone, and telegraph. (9) Buildings, equipment, and capital expenses. It is generally expected that buildings, equipment, and capital are used by an ICF/MR solely in the course of normal operations in the provision of client care, and not for personal business. Whenever this is not the case, the portion of the costs relating directly to the provision of ICF/MR client care may be allowed on a pro rata basis, if the proportion of use for recipient care is documented. (A) Depreciation and amortization expense. Property owned by the provider and improvements to owned, leased, or rented ICF/MR property that are valued at more than $500 at the time of purchase must be depreciated or amortized, using the straight-line method. The minimum usable lives to be assigned to common classes of depreciable property are as follows: (i) buildings: 30 years, with a minimum salvage value of 10%. Since rates are uniform by class of service, all buildings are uniformly depreciated on a 30- year-life basis regardless of the actual date of construction or purchase. In other words, allowable depreciation is calculated by deducting 10% from the allowable historical basis of the asset and dividing the remainder by 30. Exceptions to this rule are permissible when providers choose a useful-life basis in excess of 30 years. (ii) building equipment; buildings and grounds improvements and repairs; durable medical equipment, furniture, and appliances; and power equipment and tools used for buildings and grounds maintenance: minimum schedules consistent with Estimated Useful Lives of Depreciable Hospital Assets, published by the American Hospital Association. (iii) transportation equipment used for the transport of individuals residing in the ICF/MR, or materials and supplies utilized by the ICF/MR: a minimum of three years for passenger automobiles; five years for light trucks and vans; and seven years for buses with a minimum salvage value of 10%. (B) Provider-owned property. Property owned by the provider and improvements to property owned, leased, or rented by the provider that are valued at less than $500 at the time of purchase may be treated as ordinary expenses. (C) Rental and lease expense. Rental and lease expense paid to a related party is limited to the actual allowable cost incurred by the related party. This includes buildings, building equipment, transportation equipment used for the transport of individuals residing in the ICF/MR, or materials and supplies utilized by the ICF/MR, durable medical equipment, furniture and appliances, and power equipment and tools used for buildings and grounds maintenance. (D) Interest expense. (i) Interest expenses are allowable on loans for the acquisition of allowable items, subject to all of the requirements for allowable costs plus two additional requirements: (I) the loan must be evidenced in writing; and (II) the loan must be made in the name of the provider entity as maker or co- maker of the note. (ii) Interest expenses on related-party loans are limited to the lesser of: (I) the cost to the provider entity, which is the cost to the related party; or (II) the prevailing national average prime interest rate during the year in which the loan contract was finalized, as reported by the U.S. Department of Commerce, Bureau of Economic Analysis, in the Survey of Current Business and the Business Conditions Digest. (E) Tax expense. This includes real and personal property taxes, motor vehicle registration fees, sales taxes, Texas corporate franchise taxes, and organization filing fees. (F) Insurance expense. This includes facility fire and casualty, professional liability and malpractice, and transportation equipment insurance. (10) Contract services by outside vendors. This includes daily direct care services, food service, laundry and linen service, housekeeping service, and professional services such as those of accountants and attorneys. (11) Business and professional association dues. This cost is limited to associations devoted primarily to issues of client care. (12) Outside training costs. These costs are limited to direct costs of transportation, meals, lodging, and registration fees for training personnel who render services directly to the clients or staff of individual facilities. To qualify as an allowable cost, the training must: (A) take place in the continental United States; and (B) be related directly and primarily to recipient care. (13) Expenses for pre-vocational training. When these services are provided jointly to a variety of individuals in such a way that they may be classified as prevocational training or active treatment for some individuals and as vocational training for others, the allowable portion of the expenses is the portion that qualifies as active treatment. The allowable portion must be determined on a pro rata resident-day-of-service basis. It includes the cost of buildings, utilities, supplies, and staff utilized in the provision of such services. sec.406.157. Rate-Setting Methodology. (a) Classes of providers. Reimbursement rates are determined separately by level-of-care within each of the four classes of ICF/MR providers. (b) Classes of service. A separate set of reimbursement rates corresponding to classes of service is determined within each provider class. The classes of service for state schools are ICF/MR I, ICF/MR V, and ICF/MR VI. The classes of service for community-based providers are ICF/MR I, large ICF/MR V facilities, small ICF/MR V facilities, large ICF/MR VI facilities, small ICF/MR VI facilities, and small ICF/MR VIII facilities. Large facilities are those with more than six Medicaid-contracted beds. Small facilities are those with six or fewer Medicaid-contracted beds. (c) Rate determination. The Texas MHMR Board determines general reimbursement rates for medical assistance programs for Medicaid recipients under the provisions of Chapter 409, Subchapter A, of this title (relating to Reimbursement Methodology). The Texas MHMR Board determines particular reimbursement rates for each class of ICF/MR provider by class of service based on the consideration of the recommendations by TXMHMR staff or TXMHMR's authorized agent. To develop a separate set of reimbursement rate recommendations for each class of service within each provider class, TXMHMR or its authorized agent applies the following procedures. (1) For each class of service, a cost component for each cost center is calculated at the adjusted per diem expense corresponding to the provider delivering the median day of service. (In calculating the median day of service, days of service delivered by each provider included in the rate base are summed cumulatively in the order which corresponds to the array of adjusted per diem costs, from lowest to highest.) (2) The cost component for each cost center is multiplied by an incentive factor, and the resulting rate components are summed by class of service to calculate the recommended total reimbursement rates. The Texas MHMR Board determines the incentive factor based on consideration of staff recommendations and input from interested parties. The incentive factor must not exceed 1.07. (3) Alternate children's facility reimbursement rates for selected children's facilities are determined as follows, effective January 1, 1992. (A) Definition of children. When referred to in this section, children are persons under 22 years of age. (B) Determination of eligibility. To be considered eligible for alternate children's facility reimbursement rates, a facility must be one of the selected facilities listed in clause (i) of this subparagraph and must meet the definition of a large children's facility as defined in clause (ii) of this subparagraph. (i) Selected facilities. Selected facilities must be one of the following facilities covered by the Royal Thomas v. Marlin Johnston lawsuit Settlement Agreement. (I) Ada Wilson Hospital, Vendor Number 3730; (II) The Children's Center of Austin, Vendor Number 3731; (III) Thomas Care Center, Vendor Number 3747; (IV) Human Development Center, Vendor Number 3751; and (V) Denton Development Center, Vendor Number 3764. (ii) Definition of children's facility. When referred to in this section, a children's facility is a facility which maintains a census of no less than 85% children and maintains at least seven Medicaid-contracted beds. A selected facility will automatically lose eligibility and be paid under the uniform statewide reimbursement rate when the facility's census falls below 85% children, or when the facility's number of Medicaid-contracted beds falls below seven. (C) Determination of alternative children's facility rates. An eligible children's facility is reimbursed in the following manner: (i) Facilities with projected total per diem costs which are less than the total uniform rate for the facility's class of service are reimbursed at that uniform rate. (ii) Facilities with projected total per diem costs which are greater than the total uniform rate for the facility's class of service, but less than or equal to 110% of that uniform rate, receive their projected total per diem costs multiplied by an incentive factor of 1.03. (iii) Facilities with projected total per diem costs which are greater than 110% of the total uniform rate for the facility's class of service receive their projected total per diem costs only, with no incentive factor, up to a maximum of 150% of the total uniform rate for the facility's class of service. (iv) Facilities with projected total per diem costs which are greater than 150% of the total uniform rate for the facility's class of service are reimbursed at 150% of the total uniform rate for that class of service. (D) Additional supplemental reimbursement. Since provision is made to ensure that reasonable and necessary costs are covered, and an opportunity for an incentive is provided, the selected children's facilities covered by the Royal Thomas v. Marlin Johnston lawsuit Settlement Agreement do not qualify for additional supplemental reimbursement for heavy care clients as determined under subsection (c) of this section. (E) Temporary Method for determination of ICF/MR Level V alternative children's facility rates for the period beginning September 1, 1994. An eligible children's facility is reimbursed in the following manner; (i) Rates are based on projected per diem costs, not to exceed the current ICF/MR/RC-VIII base rate, including the estimated per diem coast of augmentative communication devices, plus the single highest supplemental rate amount, as specified under sec.406.159(c) of this title (relating to ICF/MR/RC VIII Experimental Class). The cost-based rates will not include a mark-up or incentive factor. (ii) Reimbursement for fixed capital assets is in the form of a use fee. The use fee will be paid in lieu of building and building equipment depreciation, land and leasehold amortization, mortgage interest, and/or building and building equipment lease expense. The annual use fee is calculated as 14% of the appraised value of the property is determined as the square footage of the facility devoted to the ICF/MR services multiplied by the statewide median value per square foot of facilities in the large facility Level V class of service. The per diem use fee is calculated by dividing the annual use fee by anticipated facility days of service. (iii) Projected costs may be calculated by using pro forma estimates based on historical costs adjusted to reflect anticipated expenses related to resident care, active treatment, health and safety, or other areas deemed necessary by TDHS for the particular children's population served. (iv) The portion of the Medicaid rate to a provider that represents administrative costs, as collected on the administrative cost are of the Medicaid cost report, is limited to the 90th percentile in the array of administrative costs for all large Level V ICF/MRs. (v) Any Medicaid payments not expended on Medicaid allowable costs will be recouped by the state. (vi) This temporary method remains in effect until September 30, 1994, or until formally replaced or modified through a State Plan amendment, whichever comes first. (d) Experimental class. TXMHMR may define experimental classes of service to be used in research and demonstration projects on new reimbursement methods. Demonstration or pilot projects based on experimental classes may be implemented on a statewide basis or may be limited to a specific region of the state or to a selected group of providers. Reimbursement for an experimental class is not implemented, however, unless the Texas MHMR Board and the Health Care Financing Administration (HCFA) approve the experimental methodology. (e) Supplemental reimbursement rate determination. The reimbursement rate for community based ICF/MR VI individuals whose needs require a significantly greater than normal amount of care is supplemented on an individual client basis when the appropriate score is indicated for all of the six criteria on the level-of-care assessment form. (1) The level-of-care assessment form must indicate the client meets the qualifying criteria by having the following scores on all of the items indicated: (2) The department determines the appropriate amount of supplemental reimbursement in the following manner. (A) The estimated time required by the class of direct care personnel is derived from appropriate and applicable time studies to determine the delivery cost for the supplemental ICF/MR VI rate. Each time estimate is multiplied by a projected hourly wage rate and by class personnel, including a factor for payroll, taxes and benefit expenses. The employee compensation costs are estimated from Medicaid provider cost reports and wage-and-hour survey data. (B) The portion of the ICF/MR VI class rate which covers employee compensation costs for direct care personnel is determined. (C) The amount of the ICF/MR VI supplemental reimbursement rate is determined by calculating the difference between the amounts in subparagraphs (A) and (B) of this paragraph. sec.406.158. ICF/MR/RC VIII Experimental Class. (a) ICF/MR/RC VIII facility class. The Texas Department of Mental Health and Mental Retardation (TXMHMR) defines as an experimental class community-based facilities that are certified as intermediate care facilities for the mentally retarded/related conditions (ICF/MR/RC VIII) and that have no more than six Medicaid-contracted beds. Cost reports from facilities in this experimental class will not be included in the cost arrays that are used to determine reimbursement rates for other classes of providers. (1) Facilities in the ICF/MR/RC VIII class receive per diem rates based on pro forma budgets for operation of facilities in this class. TXMHMR staff develop rates for this class of providers on a pro forma budget because of a lack of cost report information about the cost of client care by this class of provider, TXMHMR staff develop pro forma budgets based on a base rate and supplemental amounts. (2) The base rate is intended to capture the standard costs of providing care and active treatment in a comparable six-bed facility. The base rate is comprised of the small facility ICF/MR V rate and estimated additional costs for augmentative communication devices. Augmentative communication devices supplement or augment speech. These devices help an individual carry on a conversation and make basic needs known. These devices include, but are not limited to, personal computers, communication boards, speech synthesizers, and communication software packages. The base rate and supplemental payments were developed in close consultation with staff of the Texas Department of Mental Health and Mental Retardation (TXMHMR) and other professionals experienced in direct service delivery and program monitoring. (3) The supplemental amounts target specific client characteristics that are known to require additional facility space, equipment, staffing intensity, or professional staff time. Costs for additional facility space or equipment are derived from the median cost reported on the most recently submitted ICF/MR provider fiscal year cost reports. Additional staffing costs are estimated from the most recent ICF/MR wage and hour survey. Wage and hour information is collected at least annually in the ICF/MR provider fiscal year cost report. Wage and hour surveys other than those collected in the cost report may be used. As specified in sec.409.4 of this title (relating to Determination of Inflation Indices), costs from wage and hour surveys and cost reports are projected from the cost report or wage and hour survey base period to the rate period. (b) ICF/MR/RC VIII rate determination. The Texas MHMR Board revises ICF/MR/RC VIII rates at least annually based on anticipated cost increases. The board continues to set rates for this class in this manner until enough Medicaid cost- report data become available to determine rates on the basis of cost reports. The base rate and supplemental rates are uniform statewide rates. Payment rates vary by clients, based on their eligibility for supplemental payments. (c) Supplemental rate determination. In order to obtain a Level-of-Care VIII assignment, the ICF/MR/RC facility must complete the level-of-care assessment form for every Medicaid client living in the facility. TXMHMR reimbursement rates for the ICF/MR/RC program vary according to the assessed characteristics of each client. Each client is eligible for a base rate. The reimbursement rate for persons whose needs require a significantly greater than normal amount of care is composed of the base rate plus one or more supplemental payment rates. These supplemental payments are determined on an individual basis when criteria are met for selected items on the level-of-care assessment form. (1) The supplemental rate classification system. The ICF/MR/RC rate structure consists of a base rate and seven separate supplemental amounts. The base rate is based on the standard costs of providing care and active treatment in a six- bed facility. The supplemental amounts target specific characteristics of certain related conditions that are known to require more facility space or equipment, additional staffing time, or additional professional staff time. (A) All Medicaid-eligible persons residing in an ICF/MR/RC facility will receive the base rate. Persons who meet specific criteria based on the level-of- care assessment form will be eligible for supplemental payments up to a specified maximum rate. The first supplemental payment will pay the cost of all additional services, space, or equipment. The second and successive supplemental payments will pay only for costs other than direct care costs since the necessary direct care costs have already been factored into the first supplemental payment. (B) The seven supplemental rate classifications are based on the following criteria on the level of care assessment form: (i) Supplement 514 is applicable when Item 74 = 4 or 5; and Item 53 = 3. (ii) Supplement 515 is applicable when Item 51 = 4 or 5; and Item 53 = 4 or Item 44 and 45 = 4. (iii) Supplement 516 is applicable when Item 56 = 4 or 5. (iv) Supplement 517 is applicable when Item 63 = 4; and Item 64 = 3, 4, or 5. (v) Supplement 518 is applicable when Item 71 = 4 or 5; or Item 72 =4 or 5; or Item 73 = 4 or 5; or Item 74 = 4 or 5. (vi) Supplement 519 is applicable when Item 74 = 7. (vii) Supplement 520 is applicable when Item 41 = 3. (2) Supplemental rate determination effective periods. The effective periods of supplemental rate classifications are as follows. A supplemental rate classification and associated per diem rate payment remain in effect until the individual's next required continued-stay review, unless one of the following events takes place: (A) the individual is discharged and subsequently qualifies for a new admission assessment; (B) a provider submits an off-cycle assessment as specified in paragraph 3 of this subsection; (C) a provider submits an assessment requesting a change in level of care and the Texas Department Of Human Services (TDHS) approves it; (D) a provider submits an assessment requesting a change in supplemental rate status and TDHS approves it; or (E) a TXMHMR reviewer revises the level of care assessment and rate classification under the provisions of paragraph (4) of this subsection. (3) Individual assessment. The level of care assessment form is completed to determine ICF/MR/RC program eligibility. This assessment establishes the rate payment for which the individual is eligible. The continued-stay review periods are determined as follows: (A) The preadmission assessment establishes the rate for the individual and sets a continued-stay review period. (B) A continued stay review assessment establishes a new rate and continued- stay review period for the individual. (C) If an individual's characteristics change to the extent that he qualifies for a different rate category, the provider may submit an off-cycle assessment. Only two off-cycle assessments for any one individual may be submitted by the facility per year, one for the period from January-June, and one from July- December. An off-cycle assessment establishes a new rate classification only if the individual qualifies for a new supplemental rate category. The assessment sets a new continued-stay review period. (D) The level-of-care assessment form may be submitted for the purpose of allowing a provider to correct errors previously made in the assessment portion of the forms. This does not change the continued-stay review period or necessarily change the rate. Corrections must be submitted within 60 days from the date of assessment. Requests for changes after the 60 days will not be accepted. Submit a copy of the level of care assessment form containing the error and a new corrected form to TXMHMR, Attention: ICF/MR Program Director, P.O. Box 12668, Austin, Texas, 78711. (4) Individual assessment reviews. (A) TXMHMR Staff conduct desk reviews and in-depth, on-site reviews of samples of the level-of-care assessment form completed by providers for the ICF/MR/RC program. TXMHMR staff will, at their discretion, perform as many desk reviews and on-site reviews as needed to ensure the integrity of the ICF/MR/RC program. (B) When a reviewer identifies an error or an inconsistency on an assessment form, the reviewer will discuss the error with facility staff, and make appropriate corrections. The reviewer will verbally inform the facility staff of any changes that he or she makes to the level of care assessment form. The facility administrator will be notified of the changes by certified mail. If, as a result of the change, there is a reduction in the amount of Medicaid funds due the ICF/MR/RC, TXMHMR shall recoup the funds previously paid to the provider under the incorrect and/or erroneous TXMHMR level-of-care assessment form. Similarly, if any change in the level-of-care assessment form increases the amount of Medicaid funds due the ICF/MR/RC facility, TXMHMR will pay the ICF/MR/RC facility the increase. The change and the associated per diem rate become effective with the "effective date" of the level-of-care assessment form under review. This change is made when the reviewer determines that the level- of-care assessment form is not substantiated and/or does not accurately reflect the recipient's status. Changes remain in effect until a new assessment is submitted as specified in subsection (c)(3) of this section. (5) Informal reviews and administrative hearings. In order to resolve any differences, a provider who disagrees with the TXMHMR on-site reviews or adjustments must follow the procedures for informal reviews and administrative hearings set forth in this section. Only contracted providers are permitted to file for informal reviews and administrative hearings. Providers may be represented in these reviews and hearings by attorneys who are currently licensed to practice law in Texas. (A) Informal reviews. A provider who does not agree with decisions regarding the assignment of a client into a particular supplemental payment rate category may request an informal review of the decision. The review is an informal meeting rather than a formal administrative hearing. Within 15 calendar days following notification of the decision, the provider must request a review by writing: Texas Department Of Human Services Attention ICF/MR Program Specialist, Mail Code W-519, P.O. Box 149030, Austin, Texas 78714-9030. A request for a review must be postmarked within 15 days of the notification of the decision. At the earliest possible date for all parties concerned, TDHS will arrange for a review at which the provider may present information supporting his argument with the decisions in question. Staff members from TXMHMR and TDHS will consider the provider's case and render a written decision within 30 days of the review by certified mail, return receipt requested. When necessary, TXMHMR, TDHS, or the provider may request the services of an expert in a specific developmental disability to assist in the informal review. (B) Administrative hearings. If a provider does not agree with the result of an informal review, the provider may request a formal administrative hearing. The provider must file a written request for a hearing with the Hearings Department, Texas Department Of Human Services, Mail Code E-605, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days after receiving the review panel's decision. A provider may not request an administrative hearing before receiving TDHS's written review decision as specified in subparagraph (A) of this paragraph. The administrative hearing is limited to the issues that were considered in the informal review process. TDHS conducts administrative hearings according to the provisions of 40 TAC sec.sec.79.1605-79. 1614 (relating to Request for a Hearing, Effective Dates of Adverse Actions, Administrative Law Judge, Hearing Guidelines, Withdrawal of Hearing Request and Informal Disposition, Conduct of Hearings-General Requirements, Prehearing Procedure, Evidence and Depositions, Deliberation, and Decisions). If there is a conflict between the applicable sections of 40 TAC Chapter 79 (relating to Legal Services) and the provisions of this chapter, the provisions of this chapter will prevail. 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 28, 1994. TRD-9445856 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: September 1, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 206-4516 Subchapter E. Eligibility and Review 25 TAC sec.sec.406.201-406.217 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.sec.sec.406.201-406.217, concerning eligibility and review, without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4712). The provisions of the new subchapter concern eligibility and review requirements for the intermediate care facilities for the mentally retarded program in Texas. The new rules are substantially the same as rules of the Texas Department of Human Services (TDHS) contained in 40 TAC sec.sec.27.501, 27. 503, 27.505, 27.507, 27.509, 27.511, 27.513, 27.515, 27.517, 27.518, 27.519, 27.521, 27.523, 27.525, 27.527, 27.529, and 27.531, governing the same matters. The primary difference between the two documents is that agency names have been modified to reflect the changing responsibilities as ICF/MR state operating agency functions are transferred from TDHS to TXMHMR. This transfer is enacted under the authority of the Health and Human Services Commission as the Medicaid single state agency pursuant to House Bill 7 of the 72nd Texas Legislature and the Medicaid State Plan. A public hearing was held on July 7, 1994, in the department's Central Office in Austin. No oral or written testimony was offered at that time. Written comments were received from the Private Providers Association of Texas and the parent of an adult child with mental retardation. One commenter questioned whether amendments proposed by TDHS to provisions of 40 TAC Chapter 27 would be incorporated into this new subchapter. The department responds that the subchapter as proposed incorporated the eligibility criteria which TDHS proposed as amendments to the existing rules and notes that those amended rules are expected to become effective on August 1, 1994. Another commenter questioned why the level-of-care assessment form which is referenced throughout the subchapter was not attached so that it might be commented on as well. The commenter noted that TXMHMR usually attaches such forms. The department responds that the level-of-care assessment form is a TDHS form and will remain so. This and the other seven subchapters were proposed with only the necessary revisions to facilitate the transfer of operating agency functions from TDHS to TXMHMR in a timely fashion. The department will revisit all eight subchapters once they are adopted and will consider this suggestion at that time. The sections are adopted under the Texas Health and Safety Code, sec.532. 015(a), which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking powers; and under the provisions of Texas Civil Statutes, Article 4413(502) sec.16, which provide the Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on July 28, 1994. TRD-9445855 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: September 1, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 206-4516 Subchapter F. Personal Finances and Funds 25 TAC sec.sec.406.251-406.254 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.406.251-406.254, concerning personal finances and funds, without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4618). The provisions of the new subchapter concern personal finances and funds for individuals receiving services through the intermediate care facilities for the mentally retarded program in Texas. The new rules are substantially the same as rules of the Texas Department of Human Services (TDHS) contained in 40 TAC sec.sec.27.601, 27.603, 27.605, and 27.607, governing the same matters. The primary difference between the two documents is that agency names have been modified to reflect the changing responsibilities as ICF/MR state operating agency functions are transferred from TDHS to TXMHMR. This transfer is enacted under the authority of the Health and Human Services Commission as the Medicaid single state agency pursuant to House Bill 7 of the 72nd Texas Legislature and the Medicaid State Plan. A public hearing was held on July 7, 1994, in the department's Central Office in Austin. No testimony was offered. Written comments were received from the parent of an adult child with mental retardation concerning the proposal. The commenter questioned the role of the interdisciplinary team in assessing the capacity of an individual with mental retardation to make financial decisions. The department responds that the subchapter was proposed without major revisions to the text of the existing TDHS rule to ensure that ICF/MR state operating agency functions are transferred from TDHS to TXMHMR in a timely fashion. The department will revisit this and seven other subchapters involved in the transfer of responsibilities upon their adoption. The sections are adopted under the Texas Health and Safety Code, sec.532. 015(a), which provide the Texas Mental Health and Mental Retardation Board with broad rulemaking powers; and under the provisions of Texas Civil Statutes, Article 4413(502) sec.16, which provides the Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on July 28, 1994. TRD-9445854 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: September 1, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 206-4516 Subchapter G. Additional Facility Resonsibilities 25 TAC sec.sec.406.301-406.310 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.406.301-406.310, concerning additional facility resonsibilities, without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4622). The provisions of the new subchapter concern additional facility resonsibilities for providers participating in the intermediate care facilities for the mentally retarded program in Texas. The new rules are substantially the same as rules of the Texas Department of Human Services (TDHS) contained in 40 TAC sec.sec.27.701, 27.703, 27.705, 27.707, 27.709, 27. 711, 27.713, 27.715, 27.717, and 27.719, governing the same matters. The primary difference between the two documents is that agency names have been modified to reflect the changing responsibilities as ICF/MR state operating agency functions are transferred from TDHS to TXMHMR. This transfer is enacted under the authority of the Health and Human Services Commission as the Medicaid single state agency pursuant to House Bill 7 of the 72nd Texas Legislature and the Medicaid State Plan. A public hearing was held on July 7, 1994, in the department's Central Office in Austin. No testimony was offered. No written comments were received regarding adoption of the rule. The sections are adopted under the Texas Health and Safety Code, sec.532. 015(a), which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking powers; and under the provisions of Texas Civil Statutes, Article 4413(502) sec.16, which provide the Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on July 28, 1994. TRD-9445853 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: September 1, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 206-4516 Subchapter H. Dental Program 25 TAC sec.sec.406.351-406.352 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.406.351-406.352, concerning dental program, without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4696). The provisions of the new subchapter concern dental care for persons receiving services through the intermediate care facilities for the mentally retarded program in Texas. The new rules are substantially the same as rules of the Texas Department of Human Services (TDHS) contained in 40 TAC sec.27.801 and sec.27.803, governing the same matters. The primary difference between the documents is the inclusion of language which references the TDHS requirements for compliance with the Early Periodic Screening, Diagnosis, and Treatment (EPSDT) program contained in 40 TAC sec.27.801 and sec.27.863. The department will propose the bulk of the dental program rules contained in 40 TAC sec.sec.27.805-27.863 in the near future with intentions of contracting for the provision of these services with the National Heritage Insurance Corporation. A public hearing was held on July 7, 1994, in the department's Central Office in Austin. No testimony was offered. No written comments were received regarding adoption of the rules. The sections are adopted under the Texas Health and Safety Code, sec.532. 015(a), which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking powers; and under the provisions of Texas Civil Statutes, Article 4413(502) sec.16, which provide the Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on July 28, 1994. TRD-9445852 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: September 1, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 206-4516 Chapter 409. Medicaid Programs Subchapter D. Home and Community-based Services 25 TAC sec.sec.409.101, 409.103, 409.119 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.409.119 and amendments to sec.409.101 and sec.409.103, concerning home and community-based services (HCS), without changes to the proposed text as published in the May 20, 1994, issue of the Texas Register (19 TexReg 3896). The new section and amendments describe a process by which payment for services can be requested for days when documentation of a current level-of-care (LOC) determination was not in place for an individual who was eligible for and received services provided by an HCS provider. In addition, a reference in sec.409.101 to the Texas Department of Health in relation to determinations of level-of-care was revised to reference the Texas Department of Human Services. Written comments were received from Dallas County Mental Health and Mental Retardation Center. The commenter questioned why a physician's initials are required in sec.409. 119. The department responds that by initialing the form the physician has verified that for those specific days the designated ICF/MR level-of-care (LOC) was appropriate for the named individual; federal laws require physician approval of the LOC. Concerning the same section, the commenter stated that the 45 days permitted for the department to review the claim seemed too long, and suggesting the addition of a timeline for payment to be disbursed. The department responds that 45 days is the maximum time for a review and is intended to allow for supplemental material to be supplied if the original claim is incomplete. If a shorter time is permitted and the claim is incomplete, the claim would have resubmitted with the clock being restarted. Regarding the timeline for payment, once the claim has been approved, the request for payment will be processed in accordance with established procedures for claims payment. The sections are adopted under the Health and Safety Code, Title 7, sec.532. 015(a), which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking powers; and under the provisions of Texas Civil Statutes, Article 4413(502) sec.16, which provide the Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on July 28, 1994. TRD-9445862 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: September 1, 1994 Proposal publication date: May 20, 1994 For further information, please call: (512) 206-4516 Subchapter E. Home and Community-based Services-OBRA 25 TAC sec.409.154, sec.409.159 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts amendments to sec.409.154 and sec.406.159, concerning home and community-based services-OBRA (HCS-O), without changes to the proposed text as published in the May 20, 1994, issue of Texas Register (19 TexReg 3897). The amendments describe a process by which payment for services can be requested for days when documentation of a current level-of-care (LOC) determination was not in place for an individual who was eligible for and received services provided by an HCS-O provider. In addition, references in the section to the Texas Department of Health in relation to determinations of level-of-care were revised to reference the Texas Department of Human Services. No comments were received concerning adoption of the rule. The sections are proposed under the Health and Safety Code, Title 7, sec.532. 015(a), which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking powers; and under the provisions of Texas Civil Statutes, Article 4413(502) sec.16, which provide the Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on July 28, 1994. TRD-9445861 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: September 1, 1994 Proposal publication date: May 20, 1994 For further information, please call: (512) 206-4516 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part X. Texas Water Development Board Chapter 363. Financial Assistance Programs Subchapter A. General Provisions General Application Procedures 31 TAC sec.363.17 The Texas Water Development Board (board) adopts new sec.363.17, concerning Financial Assistance Programs, without substantive textual change but with numbering change within the section text and to the section number as published in the June 16, 1994, issue of the Texas Register (19 TexReg 4729). The adopted new sec.363.17 has been renumbered from sec.363.16 as published in the June 16, 1994, issue of the Texas Register (19 TexReg 4729). The Board inadvertently had proposed two new rules as sec.363.16. The other, dealing with pre-design funding, was proposed in the April 12, 1994, issue of the Texas Register (19 TexReg 2694), and has been adopted as sec.363.16 in the July 29, 1994 issue of the Texas Register. Paragraph (2)(E) as published in the Texas Register has been renumbered to paragraph (3). Texas Water Code, sec.15.102 authorizes the board to use the Water Loan Assistance Fund to provide grants for projects that include supplying water and wastewater services in "economically distressed areas." The Texas Water Code, sec.15.001, defines "economically distressed area" as an area in which water supply or sewer services are inadequate to meet minimal needs of residential users as defined by board rules. The new section sets criteria to be applied by the board in providing grant assistance from the Water Loan Assistance Fund for projects to provide water supply and wastewater service to areas in which the water supply and sewer services are inadequate to meet the minimal needs of residential users in that those services do not meet the applicable standards of the Texas Natural Resource Conservation Commission. No comments were received regarding adoption of the new section. The new section is adopted pursuant to Texas Water Code, sec.6.101 and sec.15. 403, which authorize the board to adopt rules necessary to carry out the powers and duties of the board; and the Texas Water Code, Chapter 15. sec.363.17. Water Loan Assistance Fund. The board may provide grants from the Water Loan Assistance Fund for projects that include supplying water or wastewater service to areas in which: (1) water supply services: (A) from a community water system, do not provide drinking water of a quality that meets the standards set forth by the Commission in 30 TAC sec.sec.290. 01- 290.26, 30 TAC sec. sec.290.38-290.51, and any applicable standards of any governmental unit with jurisdiction over such area; (B) from individual wells, after treatment, do not provide drinking water of a quality that meets the standards set forth by the Commission in 30 TAC sec.sec.290.3, 290.4, 290.10, and 290.13, and any applicable standards of any governmental unit with jurisdiction over such area; or (C) do not exist or are not provided; and (D) the financial resources are inadequate to provide water supply or sewer services that meet the standards and requirements of the Commission as set forth herein; or (2) sewer services: (A) from any organized sewage collection and treatment facilities, do not comply with the standards and requirements set forth by the Commission in 30 TAC Chapter 305; (B) for on site sewerage facilities, do not comply with the standards and requirements set forth by the Commission in 30 TAC Chapter 285 and 313; or (C) do not exist or are not provided; and (D) the financial resources are inadequate to provide water supply or sewer services that meet the standards and requirements of the Commission as set forth herein; or (3) for purposes of any federal funds for colonias deposited in the water assistance fund, an area that meets the federal criteria for use of such funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas on July 27, 1994. TRD-9445731 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: August 17, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 463-7981 Subchapter B. State Water Pollution Control Revolving Fund Applications for Assistance 31 TAC sec.363.222, sec.363.223 The Texas Water Development Board (board) adopts amendments to sec.363. 222 and sec.363.223, concerning Financial Assistance Programs, with changes to the proposed text as published in the April 12, 1994 issue of the Texas Register (19 TexReg 2694). 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.363.222 and sec.363.223 were made to eliminate or modify portions of those sections that related to environmental information and review. The amendment to sec.363.222 required SRF Engineering Feasibility Report, sec.363.223 required Environmental Review and Determination, 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. 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.363.222. Required SRF Engineering Feasibility Report. (a) Contents of SRF engineering feasibility report. The engineering feasibility report shall be consistent with the requirements of sec.363.13 of this title (relating to Engineering Feasibility Data) and sec.363.16, as applicable, of this title (relating to Pre-Design Funding Option). (b) (No change.) (c) Approval of SRF engineering feasibility report. The executive administrator will approve the SRF engineering feasibility report after confirming that the items listed in subsection(a) of this section have been completed, the appropriate environmental determinations have been completed in accordance with sec.363.223 of this title (relating to Required Environmental Review and Determinations), and the loan recipient has agreed to incorporate all mitigating measures directed by the executive administrator. (d) (No change.) sec.363.223. Required Environmental Review and Determinations. (a) Environmental assessments and impact statements. (1)-(4) (No change.) (5) Executive administrator determination. The executive administrator shall make an environmental determination based upon the environmental information filed by the applicant in accordance with the guidelines set forth in paragraph (4) of this subsection or subsection (b) of this section, as appropriate, and giving full consideration to the views and comments of other agencies and affected persons. The executive administrator will document his determination and present it, with any appropriate provisions, to the board except as provided in subsection (b)(4)(A) of this section. (6) (No change.) (b) Guidelines for the preparation and review of environmental assessments. (1)-(2) (No change.) (3) Specific guidelines for environmental assessments. (A)-(F) (No change.) (G) a summary of comments obtained from and documentation of coordination with appropriate agencies (e.g., Texas Antiquities Committee, which considers potential impacts to historical and cultural resources; Texas Parks and Wildlife Department, which considers potential impacts to wetlands and threatened and endangered species; Texas Natural Resource Conservation Commission, which considers consistency with stream standards and water quality management planning) and the affected public, an explanation of the methods used to obtain this input, and a discussion of how specific concerns were considered in the evaluation of alternatives and the planning of the proposed project; (H)-(J) (No change.) (4) Review by the Board. (A) For projects using the pre-design funding option, board staff will use preliminary environmental data provided by the applicant, as specified in sec.363.16 of this title (relating to Pre-Design Funding Option) 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 environmental determination which is based upon a full environmental review during planning, as provided under subparagraph (B) of this paragraph. (B) Draft versions of the environmental assessment and associated planning documents should be submitted to the board in time to allow for an initial interdisciplinary review. Any deficiencies or problems will be presented to the applicant, who will resolve any and all issues and prepare and submit the final environmental assessment for consideration as part of the loan application. In cases where an environmental assessment or environmental impact statement prepared in accordance with the guidelines of another agency has been submitted in place of an environmental assessment as defined in these guidelines, the board's staff will review it for completeness and applicability. In cases where a decision has been made to exclude a project from the formal environmental assessment process, the board's staff will base its review on the information provided in the SRF engineering plan. Based upon this review, the board staff will make written recommendations regarding the environmental impacts of the project, including any special concerns and proposed mitigative measures. The executive administrator will make a determination regarding the significance of the environmental impacts of the project based upon these guidelines and giving full consideration to the views and comments of other agencies and affected persons. The executive administrator will document his determination and present it, with any necessary provisions, to the board. If the executive administrator determines that the assessment is not adequate or that issues remain which warrant further consideration, the applicant will be requested to resolve the issues or modify the project as necessary. (C) When, after an environmental determination on a project has been presented to the board, the project has been altered to the extent that the environmental assessment process has been repeated, the executive administrator will amend the determination and, if appropriate, present it, with any necessary provisions, to the board. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 27, 1994. TRD-9445732 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: August 17, 1994 Proposal publication date: April 12, 1994 For further information, please call: (512) 463-7981 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part I. Texas Department of Public Safety Chapter 21. Equipment and Vehicle Standards Equipment and Vehicle Standards 37 TAC sec.21.7 The Texas Department of Public Safety, adopts new sec.21.7, concerning equipment and vehicle standards, without changes to the proposed text as published in the May 10, 1994, issue of the Texas Register (19 TexReg 3569). The justification for this section is a reduction in traffic accidents involving trailer or house trailer disconnecting from the towing vehicle while being towed. This section provides that a person may not operate a passenger vehicle while towing a trailer or house trailer on a public highway unless safety chains of a type approved by the department are attached in a manner approved by the department from the trailer or house trailer to the towing vehicle. One comment was received from Texas Utilities Services, Inc. requesting the rule be revised to include a specific exemption for light trucks, given the underlying statute's limited focus on passenger vehicles. The Texas Department of Public Safety does not agree with the comment. The proposed rule contains a provision in sec.21.7(e) which states that the provisions do not apply to light trucks, towing trailers or house trailers. Therefore, the revision requested by the commenter is unnecessary. The new rule is adopted under Texas Civil Statutes, Article 6701d, sec.106A(c), which provides the Texas Department of Public Safety with the authority to adopt rules which set forth the type of safety chains required to be used based on the weight of the trailer or house trailer being towed. 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 28, 1994. TRD-9445755 James R. Wilson Director Texas Department of Public Safety Effective date: August 18, 1994 Proposal publication date: May 10, 1994 For further information, please call: (512) 465-2000 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 19. Long-Term Care Nursing Facility Requirements for Licensure and Medicaid Certification Subchapter C. Resident Rights 40 TAC sec.19.217 The Texas Department of Human Services (DHS) adopts amendments to sec.sec.19. 217, 19.501, 19.502, 19.601, 19.602, 19.802, 19.1001, 19.1005, 19.1201, 19. 1308, 19.1501, 19.1922, 19.1928, and 19.1929, concerning care of children in nursing facilities, in its Long-Term Care Nursing Facility Requirements for Licensure and Medicaid Certification rule chapter. The amendments to sec.sec.19. 501, 19.502, 19.601, 19.602, 19.1001, 19.1308, 19.1501, and 19.1922 are adopted with changes to the proposed text as published in the May 13, 1994, issue of the Texas Register (19 TexReg 3640). The amendments to sec.sec.19. 217, 19.802, 19.1005, 19.1201, 19.1929, and 19.1929 are adopted without changes and will not be republished. Justification for the amendments is to comply with a directive by the Senate Health and Human Services Committee of the Texas Legislature which addresses the care of children in nursing facilities. The amendments include requiring facilities to follow the Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) guidelines for children; to coordinate services with the Early Childhood Intervention Program (ECI); to coordinate the use of the Individual Educational Plan (IEP) by both the schools and the nursing facility; to adopt additional safety measures and ensure appropriate environment; to use consultative pediatric nursing and medical care; to train staff in pediatric issues; to adopt pediatric policies and procedures; and to use assessments, especially developmental, that are pediatric instead of adult. The amendments will function by improving care of children in nursing facilities. During the public comment period, DHS received comments from the Texas Department of Health. A summary of the comments and DHS's responses follow: Comment: The commenter suggested several amendments to rules in the areas of physician, dietary, social, rehabilitation, and pharmacy services that were not included in the proposal. Response: DHS will take these suggestions into consideration in future revisions to the nursing facility requirements. Comment: The commenter suggested additional language regarding advance directives for residents who are children. One suggested change requires that the facility follow its policies and procedures for adult advance directives when children are residents. Response: DHS is not incorporating this comment because procedures are not the same for children as for adults. Comment: The commenter suggested the addition to sec.19.217 of "For a child who is a resident, a competent parent or legal guardian may issue advance directives." Response: This is already provided by state law; therefore, DHS is not adding the statement. Comment: The commenter recommended deleting "when feasible" from sec.19.501 and recommended adding "The provision of a consistent care giver for children is advised." Response: DHS agrees and has made the recommended changes. The deletion is made from sec.19.501(6) and the addition is made to the "implied (a)" which precedes paragraphs (1)-(6) of the section. Comment: The commenter recommended adding recreational equipment to sec.19. 502(e) which is suitable for children and adding provisions for separate play areas for children. Response: DHS agrees with the comment regarding recreational equipment and is adopting sec.19.502(e) with the recommended addition. With regard to separate play areas, DHS believes this is already covered in sec.19.1501(20)(C). Comment: The commenter recommended additional language in sec.19.601 concerning pediatric assessments and community transition. Response: DHS agrees and has added the recommended language in sec.19.601(4) (A). This change results in renumbering the remaining subparagraphs in the paragraph. Comment: The commenter requested that language be added to sec.19.601 clarifying that the comprehensive care plan is based on each child's individual needs. Response: The requested language is in the current sec.19.602(a). Comment: The commenter suggested deletion of the requirement stated in sec.19.802(o) that consultative pediatric nursing services must be available if children are in a facility. Response: DHS disagrees with the suggestion and is adopting the section as proposed to ensure that consultants with pediatric experience and expertise are available to assist in providing appropriate care. Comment: The commenter suggested changes to sec.19.1001, Physician Services, requiring that pediatricians participate in individual comprehensive care planning and that pediatric subspecialty services be utilized. Response: These suggestions are covered by existing rules at sec.19.602(b)(2) and sec.19.1001(4), respectively. Comment: The commenter recommended adding "sites, routes, and techniques of drug administration" to sec.19.1308(f). Response: DHS agrees and is adopting the section with the recommended change. Comment: The commenter recommended adding "as an expression of their individual preferences" to sec.19.1501(20)(A). Response: DHS agrees and is adopting the section with the recommended change. Comment: The commenter suggested adding to sec.19.1922(a) "Policies for ongoing assessment of the potential for community reintegration of pediatric residents should be in place." Response: DHS agrees and has incorporated the recommended language in the adopted section with minor editorial changes. Comment: The commenter recommended adding "and pediatric assessment" to the criteria for annual continuing education listed in sec.19.1929. Response: This language is already included in sec.19.1929(3)(D)(ii). In addition to changes resulting from comments, DHS is adopting sec.sec.19. 602(e), 19.1001(5), and 19.1501(3) with a number of editorial changes that clarify but do not change the function or intent of the sections. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec. sec.22.001-22.024, 32. 001-32.003, and 32.021-32.042. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 28, 1994. TRD-9445777 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: September 15, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 450-3765 Subchapter F. Quality of Life 40 TAC sec.19.501, sec.19.502 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments implement the Human Resources Code, sec. sec.22.001-22.024, 32. 001-32.003, and 32.021-32.042. sec.19.501. Quality of Life. A facility must care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life. If children are admitted to a facility, care must be provided to meet their unique medical and developmental needs. The provision of a consistent care giver for children is advised. (1)-(5) (No change.) (6) Accommodations for children. Pediatric residents should be matched with roommates of similar age and developmental levels. sec.19.502. Activities. (a)-(d) (No change.) (e) Toys and recreational equipment for pediatric residents must be appropriate for the size, age, and developmental stage of the residents. 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 28, 1994. TRD-9445778 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: September 15, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 450-3765 Subchapter G. Resident Assessment 40 TAC sec.19.601, sec.19.602 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments implement the Human Resources Code, sec. sec.22.001-22.024, 32. 001-32.003, and 32.021-32.042. sec.19.601. Resident Assessment. The facility must conduct initially and periodically a comprehensive accurate, standardized, reproducible assessment of each resident's functional capacity. (1)-(3) (No change.) (4) Pediatric resident assessment. (A) Pediatric assessments should be performed by staff experienced in the care and assessment of children. Parents or guardians should be included in the assessment process. The potential for community transition should be discussed with the parents or guardians whenever an assessment occurs. (B) The comprehensive assessment for children must include a record of immunizations, blood screening for lead, and developmental assessment. The local school district's developmental assessment may be used if available. See sec.19.2013 of this title (relating to Educational Requirements for Persons Under 22). (C) Facility staff should assess the child's functional status in relation to pediatric developmental levels, rather than adult developmental levels. (D) The facility staff must ensure pediatric residents receive services in accordance with the guidelines established by the Texas Department of Health's Early Periodic Screening, Diagnosis, and Treatment (EPSDT) Division. For Medicaid-eligible pediatric residents between the ages of six months and six years, screening for lead poisoning must be done in accordance with EPSDT guidelines. (E) The facility must coordinate educational opportunities for pediatric residents from birth to age three with the local office of Early Childhood Intervention (ECI). (F) The facility must coordinate educational opportunities for pediatric residents age three to 22 years with the local school district. See sec.19.2013 of this title (relating to Educational Requirements for Persons Under 22). sec.19.602. Comprehensive Care Plans. (a)-(d) (No change.) (e) The Individual Educational Plan (IEP), written by the school district's educational professionals, must be used in care planning for pediatric residents to enhance skills developed in the educational setting. If the IEP requires the development of specific skills, such as hand-to-eye coordination, the facility's care plan must address this. See sec.19.2013 of this title (relating to Educational Requirements for Persons Under 22). 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 28, 1994. TRD-9445779 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: September 15, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 450-3765 Subchapter I. Nursing Services 40 TAC sec.19.802 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec. sec.22.001-22.024, 32. 001-32.003, and 32.021-32.042. sec.19.802. Additional Nursing Services Staffing Requirements. (a)-(n) (No change.) (o) Consultative pediatric nursing services must be available to facility staff if the nursing facility has a pediatric resident. 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 28, 1994. TRD-9445780 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: September 15, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 450-3765 Subchapter K. Physician Services 40 TAC sec.19.1001, sec.19.1005 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments implement the Human Resources Code, sec. sec.22.001-22.024, 32. 001-32.003, and 32.021-32.042. sec.19.1001. Physician Services. A physician must personally approve in writing a recommendation that an individual be admitted to a facility. Each resident must remain under the care of a physician. The facility must ensure that: (1)-(4) (No change.) (5) if children are admitted to the facility, a pediatrician or other physician with training or expertise in the clinical care of children with complex medical needs participates in all aspects of the medical care. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 28, 1994. TRD-9445781 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: September 15, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 450-3765 Subchapter M. Dental Services 40 TAC sec.19.1201 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec. sec.22.001-22.024, 32. 001-32.003, and 32.021-32.042. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 28, 1994. TRD-9445782 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: September 15, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 450-3765 Subchapter N. Pharmacy Services 40 TAC sec.19.1308 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec. sec.22.001-22.024, 32. 001-32.003, and 32.021-32.042. sec.19.1308. Drug Administration. (a)-(e) (No change.) (f) Nursing facilities must have current medication reference texts or sources, including information on pediatric medications, dosages, sites, routes, techniques of drug administration, desired effects, and possible side effects, if facilities have pediatric residents. (g) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 28, 1994. TRD-9445783 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: September 15, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 450-3765 Subchapter P. Physical Plant and Environment 40 TAC sec.19.1501 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec. sec.22.001-22.024, 32. 001-32.003, and 32.021-32.042. sec.19.1501. General Requirements. The facility must be designed, constructed, equipped, and maintained to protect the health and ensure the safety of residents, personnel, and the public. If children are admitted to the facility, accommodations, furnishings, and equipment appropriate to children must be provided. (See also sec.19.505 of this title (relating to Environment).) (1)-(2) (No change.) (3) Space and equipment. The facility must: (A) provide sufficient space and equipment in dining, health services, recreation, and program areas to enable staff to provide residents with needed services as required by these standards and as identified in each resident's plan of care; (B) maintain all essential mechanical, electrical, and patient care equipment in safe operating condition; and (C) if children are residents of the facility, provide pediatric equipment and supplies in appropriate size for the age and developmental level of the child(ren). Pediatric emergency supplies and equipment must be readily available for use. (4)-(19) (No change.) (20) Pediatric specifications. (A) Pediatric residents' rooms should be decorated and furnished in accordance with the age and developmental level of the children and as an expression of their individual preferences. (B) The environment for pediatric residents must be the least restrictive allowable while remaining within the parameters of safety. All areas of the facility accessible to children must be "child proof" for safety hazards. This type of safety proofing is above the normal level of hazard control maintained for adult residents and includes addition of safety covers on all electrical outlets. (C) Indoor and outdoor recreation areas should be designed to encourage exploration within the children's capabilities. 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 28, 1994. TRD-9445784 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: September 15, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 450-3765 Subchapter T. Administration 40 TAC sec.sec.19.1922, 19.1928, 19.1929 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments implement the Human Resources Code, sec. sec.22.001-22.024, 32. 001-32.003, and 32.021-32.042. sec.19.1922. Resident Care Policies. (a) The facility must have written policies to govern the nursing care and related medical or other services provided. The written policies must include plans for promoting self-care and independence. If children are admitted to the facility, written policies must address the unique care needs of those children, consistent with currently acceptable pediatric practice and should address the ongoing assessment of the potential for community reintegration. The written policies must also include but are not limited to: (1)-(24)(No change.) (b)-(c) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 28, 1994. TRD-9445785 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: September 15, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 450-3765 Part XIX. Texas Department of Protective and Regulatory Services Chapter 730. Legal Services Subchapter E. Advisory Committees and Other Committees The Department of Protective and Regulatory Services (PRS) adopts amendments to sec.sec.730.401, 730.402, 730.403, and 730.405; and the repeal of sec.730.404, without changes to the proposed text as published in the June 10, 1994, issue of the Texas Register (19 TexReg 4518). The justification for the amendment to sec.730.401 is to add the definitions of department and executive director, and conform the name of the Board to that stated in the statute. The amendment to sec.730.402 adds the statutory requirements to the general structure of all agency advisory committees, including selection of presiding officers, legislatively mandated balanced representation, and a method for replacement of members, when necessary. The amendment to sec.730.403 adds the Strategic Directions Advisory Committee, the Advisory Committee for the Office of Protective Services for Families and Children, and the Advisory Committee for the Office of Adult Protective Services; and deletes the Medical Care Advisory Committee and the Council for Social Work Certification because those committees are committees of other agencies. The amendment to sec.730.405 deletes the Council on Child Abuse and Neglect Prevention, which has been replaced by a state agency; and deletes the Texas Council on Child Welfare Boards, which is not a department committee, but a council formed by child welfare boards. Section 730.404 is repealed because the committee functions previously covered by that section are covered by existing committees in other agencies. The proposal will function by maintaining the public's ability to participate in PRS's rule-making process. No comments were received regarding adoption of the amendments and repeal. The amendments are adopted under Texas Civil Statutes, Article 6252-33, which governs state agency advisory committees and requires agencies to promulgate rules concerning such committees; and under Texas Civil Statutes, Article 4413 (503), historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to the child protective services program from the Texas Department of Human Services to PRS. 40 TAC sec.sec.730.401, 730.402, 730.403, 730.405 The amendments implement Texas Civil Statutes, Article 6252-33, and the Human Resources Code, sec.22.009 and sec.42.022. 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 August 1, 1994. TRD-9445914 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Protective and Regulatory Services Effective date: September 1, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 450-3765 40 TAC sec.730.404 The repeal is adopted under Texas Civil Statutes, Article 6252-33, which governs state agency advisory committees and requires agencies to promulgate rules concerning such committees; and under Texas Civil Statutes, Article 4413 (503), historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to the child protective services program from the Texas Department of Human Services to PRS. The repeal implements Texas Civil Statutes, Article 6252-33, and the Human Resources Code, sec.22.009 and sec.42.022. 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 August 1, 1994. TRD-9445915 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Protective and Regulatory Services Effective date: September 1, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 450-3765 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 9. Contract Management Subchapter A. General 43 TAC sec.9.5 The Texas Department of Transportation adopts new sec.9.5, under new Subchapter A, General, concerning Special Labor Provisions for Public Works Contracts, without changes to the proposed text as published in the June 3, 1994, issue of the Texas Register (19 TexReg 4320). Texas Civil Statutes, Article 5159a, requires the department and other public bodies awarding contracts for public works to ascertain and include in its contracts the general prevailing rate of per diem wages for certain laborers, workers, and mechanics in the locality in which the work is to be performed. House Bill 560, 73rd Legisalture, 1993, amended Texas Civil Statutes, Article 5159a to: require public bodies to ascertain prevailing wage rates by conducting a survey or adopt the prevailing wage rates determined by the U. S. Department of Labor in accordance with the Davis-Bacon Act; increase the penalty for a violation from $10 to $60 for each laborer, workman, or mechanic employed for each calendar day he or she is paid less than the established prevailing wage rate; require the public body to adopt a complaint and dispute resolution process which utilizes a good cause standard for evaluating complaints; and require the public body to hold all monies due under the contract pending resolution of any complaint found to have good cause. New sec.9.5 which prescribes the policies and procedures necessary to ensure efficient and equitable administration of the law's requirements, provides as follows: subsection (a), Purpose, states the purpose of the section; subsection (b), Definitions, defines words and terms used in the section; subsection (c), Determination of prevailing wage rate, states that highway improvement contracts shall adopt prevailing wages established by the U. S. Department of Labor in accordance with the Davis-Bacon Act and building contracts shall adopt prevailing wage rates established by the General Services Commission; subsection (d), Contract procedures, provides how the prevailing wage rate will be specified and applied in the department's public works contracts, states the contractor's responsibilities for ensuring compliance, describes the procedure for establishing wage rates for classifications not specified in the contract, and describes requirements related to the payment of overtime wages; subsection (e), Records and inspections, requires the contractor and subcontractors to submit payroll records to the department and keep associated cancelled payroll checks available for inspection; subsection (f), Enforcement, describes the procedures for a laborer filing a complaint, requires the department to make a good cause determination within 30 days after receiving a complaint, describes the dispute resolution process which includes retention of payments due under the construction contract by the department pending resolution of the complaint; and subsection (g), Penalties, states that contractors or subcontractors who violate the prevailing wage requirements are liable to the department for a penalty of $60 for each calendar day a laborer, workman, or mechanic is paid less than the minimum rate stipulated in the contract. A public hearing was held on June 15, 1994, and no oral or written comments were received. The new section is adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to promulgate rules and regulations for the conduct of the work of the Texas Department of Transportation, and Texas Civil Statutes, Article 5159a, which requires the payment of prevailing wage rates on public works contracts. 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 28, 1994. TRD-9445821 Diane Northam Legal Executive Assistant Texas Department of Transportation Effective date: August 19, 1994 Proposal publication date: June 3, 1994 For further information, please call: (512) 463-8630 Chapter 23. Travel Information Subchapter B. Travel Information 43 TAC sec.23.13 The Texas Department of Transportation adopts new sec.23.13 concerning Electronic Travel Information System, without changes to the proposed text as published in the June 3, 1994 issue of the Texas Register (19 TexReg 4322). New sec.23.13 provides for the creation of an electronic travel information system to gather and distribute travel information in an electronic form; authorizes governmental entities and travel related businesses to contribute information to the system; limits the type of information eligible for the system to those subjects eligible for inclusion in department travel literatures as provided in existing sec.23.10; provides application procedures for eligible contributors; authorizes electronic access to information in the system; and provides that contributors are responsible for protecting the right to commercial use of information they contributed. The new section will allow the department to disseminate travel information as required by Texas Civil Statutes, Article 6144e, in a more efficient and expedient manner. On June 13, 1994, the department conducted a public hearing on the proposed new section. The El Paso Convention and Visitors Bureau, Wichita Falls Convention and Visitors Bureau, Van Horn Convention and Visitors Bureau, San Angelo Convention and Visitors Bureau, Orange Convention and Visitors Bureau, Texas Travel Industry Association, and the Texas Hotel and Motel Association submitted comments in favor of the proposed new section. The new section is adopted under Texas Civil Statutes, Articles 6666 and 6144e, which provide the Texas Transportation Commission with the authority to promulgate rules and regulations for the conduct of the work of the Texas Department of Transportation, to compile and publish pamphlets, bulletins, and documents necessary for informational and publicity purposes concerning the highways of the state and to provide road information, travel guidance, and various descriptive materials designed to furnish aid and assistance to the traveling public and stimulate travel to and within Texas. 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 29, 1994. TRD-9445820 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: August 19, 1994 Proposal publication date: June 3, 1994 For further information, please call: (512) 463-8630