ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part XV. Health and Human Services Commission Chapter 351. Coordinated Planning and Delivery of Health and Human Services 1 TAC sec.351.5 The Health and Human Services Commission (HHSC) adopts new sec.351.5, concerning charges for public records, without changes to the proposed text as published in the June 5, 1994, issue of the Texas Register (19 TexReg 5141). The new rule is required to comply with Texas Government Code, sec.552.261, note (Acts 1993, 73rd Legislature, Chapter 428, sec.5). The new rule's function is to specify the charges the Health and Human Services Commission will make for public records. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Government Code, sec.552.261, note (Acts 1993, 73rd Legislature, Chapter 428, sec.5), which gives the Health and Human Services Commission authority to specify the charges the agency will make for public records and establish a charge that is equal to the full cost to the agency of providing the copy. 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 September 7, 1994. TRD-9447712 Debby Gardner General Counsel Health and Human Services Commission Effective date: September 28, 1994 Proposal publication date: June 5, 1994 For further information, please call: (512) 502-3200 TITLE 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 5. Quarantines 4 TAC sec.5.178 The Texas Department of Agriculture (the department) adopts amendments to sec.5.178, concerning establishment of administrative committees governing pink bollworm quarantine zones, with changes to the proposed text as published in the August 5, 1994, issue of the Texas Register (19 TexReg 6084). Currently there is no method of securing nominees to Pink Bollworm Pest Management Committees in zones that do not have a cotton grower organization. The amendments are adopted to establish alternative methods for nominating and appointing producer representation to serve on Pink Bollworm Pest Management Committees in all regulated zones. The department has made changes to subsections (b) and (c) for purposes of clarification. No comments were received regarding adoption of the amendments. The amendments provide an acre-based method for determining the number of representatives to represent a county as the administrative committee and procedures for submitting nominees in areas where no certified cotton organization is established. In addition, the amendments provide other qualifications for nominees and procedures for nominating producers. The amendments are adopted under the Texas Agriculture Code, sec.74.054, which provides the Texas Department of Agriculture with the authority to adopt rules necessary for the control and eradication of the pink bollworm. sec.5.178. Quarantine Zones. (a) An administrative committee shall govern each quarantine zone. The committee shall consist of one authorized representative of the department and cotton producers representing each county within the zone. Producer representation of counties within the zone shall be based on acreage as follows: (1) one to 25,000 acres = one representative; (2) 25,001 to 50,000 acres = two representatives; (3) 50,001 to 75,000 acres = three representatives; (4) 75, 001 to 100,000 acres = four representatives; (5) 101,001 to 125,000 acres = five representatives; (6) 125,001 to 150,000 acres = six representatives; (7) 150,001 to 175,000 acres = seven representatives; (8) 175,001 to 200,000 acres = eight representatives; (9) 200,001 to 225,000 acres = nine representatives; and (10) 225,001 to 250,000 acres = ten representatives. (b) The commissioner shall appoint the producer members of the administrative committee for a term of two years expiring on December 31 of the second year, selecting the appointees from a pool of nominees submitted by certified cotton producer organizations as defined in the federal Cotton Research and Promotion Act, sec.14 (7 United States Code sec.sec.2101-2118). In cases where no certified cotton producer organization is established in a covered county, nominees may be submitted in the following order of priority by either: a County Extension Agriculture Committee; an established agriculture business that is representative of the entire county; or any other established business or non- profit organization as designated by the department. (c) Nominees must be an active producer and/or resident from the county they will represent. A minimum of three nominees must be provided for each producer position on each administrative committee. Some counties may not be represented on the committee if cotton acreage is determined by the county's nominating body to be negligible or if county producers decide not to be represented. (d) The administrative committee of a quarantine zone organized under this section shall: (1) make recommendations to the department regarding control of the pink bollworm in the zone, including recommendations or regulations needed to control and prevent pink bollworm infestation; (2) make recommendations on any legislative changes needed to increase effectiveness of current regulations; and (3) give advice and counsel to the department regarding effective enforcement of this subchapter within the zone. (e) Quarantine zones shall be as follows. (1) Zone 1. Includes the following counties: Atascosa, Bexar, DeWitt, Frio, Goliad, Karnes, Kinney, Live Oak, Maverick, Medina, Uvalde, Val Verde, Wilson, and Zavala. (2) Zone 2. Includes the following counties: Chambers, Colorado, Fayette, Galveston, Gonzales, Harris, Jefferson, Lavaca, Liberty, Orange, Waller, and Washington. (3) Zone 3. Includes the following counties: Bastrop, Caldwell, Comal, Guadalupe, Hays, Lee, Travis, and Williamson. (4) Zone 4. Includes the following counties: Anderson, Angelina, Bell, Bosque, Brazos, Burleson, Burnet, Coryell, Cherokee, Ellis, Falls, Freestone, Grimes, Hamilton, Hardin, Henderson, Hill, Hood, Houston, Jasper, Johnson, Lampasas, Leon, Limestone, McLennan, Madison, Milam, Montgomery, Nacogdoches, Navarro, Newton, Panola, Polk, Robertson, Rusk, Sabine, San Augustine, San Jacinto, Shelby, Smith, Somervell, Trinity, Tyler, and Walker. (5) Zone 5. Includes the following counties: Pecos, Ward, and Reeves. (6) Zone 6. Includes the following whole and partial counties. (A) Includes the following whole county: El Paso County. (B) Hudspeth County. That portion of Hudspeth County bounded by Interstate Highway 10 on the north, the El Paso County line on the west, the Rio Grande River on the south and a line from old Fort Whitman, north along Highway 34 to Interstate 10 on the east. 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 September 9, 1994. TRD-9447860 Dolores Alvarado Hibbs Administrative Law Judge Texas Department of Agriculture Effective date: September 30, 1994 Proposal publication date: August 5, 1994 For further information, please call: (512) 463-7583 TITLE 16. ECONOMIC REGULATION Part III. Texas Alcoholic Beverage Commission Chapter 45. Marketing Practices Subchapter C. Standards of Identity for Malt Beverages 16 TAC sec.45.73 The Texas Alcoholic Beverage Commission adopts an amendment to sec.45.73 concerning the prohibition of private or exclusive labels of malt beverages for retail accounts, without changes to the proposed text as published in the July 29, 1994, issue of the Texas Register (19 TexReg 5817). This amendment was adopted to clarify statutory provisions of the Alcoholic Beverage Code which prohibit the use of private labels of malt beverages. This amendment clarifies that in addition to any malt beverages which are prohibited because they use the name, logo, or tradename of a retail establishment or a chain of establishments, a fact situation whereby it is determined that any other brand name of malt beverage that is sold to one establishment or chain of establishments so as to be a private label, in fact, will have the label approval denied for the product and it will become an illegal product. This rule will prohibit direct dealings between manufacturers of malt beverages and retail accounts, by prohibiting the supply of products exclusively for one account or chain of accounts that is prohibited under the three-tier regulatory system of regulation in effect in Texas. FOR: One comment was received by a beer distributor in favor of the amendment to the rule as published. AGAINST: No comments were received against the amendment. The amendment is adopted under the Alcoholic Beverage Code, sec.5.31, which provides the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provisions of the Alcoholic Beverage Code. This amendment to the rule affects the Alcoholic Beverage Code, sec.101.41 and sec.101.67. 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 September 6, 1994. TRD-9447693 Doyne Bailey Administrator Texas Alcoholic Beverage Commission Effective date: September 28, 1994 Proposal publication date: July 29, 1994 For further information, please call: (512) 206-3204 Subchapter D. Advertising and Promotion-All Beverages 16 TAC sec.45.101 The Texas Alcoholic Beverage Commission adopts an amendment to sec.45.101 concerning the prohibition of offering rebates, coupons, and premium stamps with changes to the proposed text as published in the July 29, 1994, issue of the Texas Register (19 TexReg 5818). This amendment was adopted to clarify statutory provisions of the Alcoholic Beverage Code, sec.102.07(d) and sec.108.06 which prohibit the use of coupons by the alcoholic beverage industry. The rule as amended prohibits the alcoholic beverage industry from the use of any coupons for any products, whether for rebates, cents-off or for free, with our without the purchase of an alcoholic beverage. This rule will prohibit anyone in the alcoholic beverage industry from using coupons to induce the public to purchase any alcoholic beverage either through cheaper prices or through temptation by offering discounts on other products. A clarification is included to authorize retailers to offer their own discounts on food or other packages, such as hotel packages which may include a complimentary drink as an incidental part of a weekend special, meal packages, and airline frequent flier coupons since the price of a beverage is already included in the package. Also, a clarification was added to insure that companies who may also be in other businesses are not prohibited from independently offering promotions to those businesses so long as there is no promotional tie to their alcoholic beverage business. FOR: One comment was received by the Texas Restaurant Association regarding the rules, but asked for clarification for meal packages. This was added in the rule. AGAINST: Coors Brewing Company commented against the rule unless clarification was added for other jointly owned businesses. Language was added to address this concern. This amendment to the rule was adopted under Alcoholic Beverage Code, sec.5. 31, which provides the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provisions of the Alcoholic Beverage Code. This amendment to the rule affects Alcoholic Beverage Code, sec.sec.102.07(d) and 108.06. sec.45.101. Rebates, Coupons and Premium Stamps. (a) It shall be unlawful for the holder of a license or permit to give or offer to give to any person premium stamps or any other type of inducement with the purchase of alcoholic beverages. The term "premium stamp" is hereby declared to include but not be limited to the following: exchange stamps, trade stamps, green stamps, gold stamps, and cash register premium tapes. (b) No holder of a manufacturing, wholesale, or retail level license or permit may give any rebate or coupon redeemable by the public for the purchase of or for a discount on the purchase of any alcoholic beverage. (c) No holder of a manufacturing, wholesale, or retail level license or permit may offer or give away with or without the purchase of any alcoholic beverage, a coupon redeemable for a rebate, cents-off or for any free non- alcoholic beverage item or product. A retailer, manufacturer, or wholesaler may, however, offer a discount, rebate, or cents-off coupon on any non-alcohol product that he sells if it does not require the purchase of any alcoholic beverage. (d) None of the above prohibits any retailer from offering a complimentary drink or drink discount as part of a meal package, a hotel package or any airline frequent flier program or in conjunction with any airline ticket purchase, provided, however, that no discount or complimentary beverage shall be brand identified or redeemed by a wholesaler or manufacturer. 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 September 6, 1994. TRD-9447694 Doyne Bailey Administrator Texas Alcoholic Beverage Commission Effective date: September 28, 1994 Proposal publication date: July 29, 1994 For further information, please call: (512) 206-3204 16 TAC sec.45.106 The Texas Alcoholic Beverage Commission adopts new sec.45.106 concerning the conduct of sweepstakes to promote alcoholic beverages, with changes to the proposed text as published in the July 29, 1994, issue of the Texas Register (19 TexReg 5819). This rule was adopted to implement Alcoholic Beverage Code, sec.102.07(e) and sec.108.061 which authorize the alcoholic beverage industry to conduct sweepstakes to promote their products. The rule as adopted will allow companies to promote alcoholic beverage products through random drawing sweepstakes but prohibits the use of game pieces, instant win devices, cards, or other games of chance other than a random drawing. FOR: Miller Brewing Company submitted a letter in favor of the rule but requested changes to allow entries to be packaged inside packages of alcoholic beverages. Coors Brewing Company testified that they also desired to package entries with a package of alcoholic beverages such as printing an entry blank on the inside of a carton. The commission made changes to authorize entries to be included, as long as identical entries are also provided at the point of purchase so customers do not have to make a purchase to enter. AGAINST: Gambrinus Importing Company (owner of Shiner Brewing) submitted a letter against contests because they cannot utilize them since they do not sell their product in 30 states. This was discussed and determined to be a legislative condition, not one limited by this rule which could be changed by the commission. This amendment to the rule was adopted under Alcoholic Beverage Code, sec.5. 31, which provides the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provisions of the Alcoholic Beverage Code. This amendment to the rule affects Alcoholic Beverage Code, sec.102.07(e) and sec.108.061. sec.45.106. Sweepstakes and Games of Chance. (a) As authorized in the Alcoholic Beverage Code, sec.102.07 and sec.108. 061, the holder of the following licenses and permits may offer a prize to a consumer if the offer is part of a nationally conducted promotional sweepstakes activity legally offered and simultaneously conducted during the same time period in 30 or more states: (1) manufacturer's license; (2) non-resident manufacturer's license; (3) brewer's permit; (4) non-resident brewer's permit; (5) distiller's and rectifier's permit; (6) winery permit; (7) wine bottler's permit; or (8) non-resident seller's permit. (b) Any sweepstakes promotion must be legally offered and simultaneously conducted during the same time period in 30 or more states. (c) A person affiliated with the alcoholic beverage industry may not receive a prize from a sweepstakes promotion. (d) A person must be 21 years of age or older to enter a sweepstakes promotion. (e) No game piece, or other form of instant win device may be packaged with, within, or printed on any packages of alcoholic beverages. All sweepstakes entries are prohibited from requiring a purchase of an alcoholic beverage or the validation of any kind which requires a purchase of any alcoholic beverage. (f) No sweepstakes entry may be packaged with, within, or printed on any packages of alcoholic beverages unless there is provided at the point of sale identical entries available to the consumer. All sweepstakes entries are prohibited from requiring a purchase of an alcoholic beverage or the validation of any kind which requires a purchase of any alcoholic beverages. (g) Except as specifically authorized by this section, and the Alcoholic Beverage Code, sec.102.07 and sec.108.061, it shall be unlawful for any person to sell or distribute any alcoholic beverage in a container bearing any label, crown, or covering upon which there is printed or marked any word, letter, figure, symbol or character representative of or suggesting any game of chance, or to use or display any advertising so printed or marked. 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 September 6, 1994. TRD-9447695 Doyne Bailey Administrator Texas Alcoholic Beverage Commission Effective date: September 28, 1994 Proposal publication date: July 29, 1994 For further information, please call: (512) 206-3204 16 TAC sec.45.110 The Texas Alcoholic Beverage Commission adopts a new sec.45.110 concerning the prohibition of activities which lead to the exclusion of competitors' brands of alcoholic beverages in retail accounts, without changes to the proposed text as published in the July 29, 1994, issue of the Texas Register (19 TexReg 5820). The rule was adopted to give examples of the types of activities that are prohibited under the Alcoholic Beverage Code, sec.109.08, that result in the total or partial exclusion of any competitors' products in a marketplace. The new section will function by clearly defining those practices which tend to exclude competitors from the marketplace and are therefore forbidden. No comments were received from anyone regarding the adoption of this rule. The new section is adopted under the Alcoholic Beverage Code, sec.5.31, which provides the Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provisions of the Alcoholic Beverage Code and sec.109.08 which prohibits activities that tend to exclude competitors from the marketplace. Statutes affected by this new rule are Alcoholic Beverage Code, sec.109.08. 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 September 6, 1994. TRD-9447696 Doyne Bailey Administrator Texas Alcoholic Beverage Commission Effective date: September 28, 1994 Proposal publication date: July 29, 1994 For further information, please call: (512) 206-3204 Part IV. Texas Department of Licensing and Regulation Chapter 67. Auctioneers 16 TAC sec.sec.67.60, 67.70, 67.80-67.83, 67.100 The Texas Department of Licensing and Regulation adopts new sec.67.60 and amendments to sec.sec.67.70, 67.80, 67.81, 67.82, 67.83, and 67.100 concerning Auctioneers. Section 67.100 is adopted with changes to the proposed text as published in the July 19, 1994, issue of the Texas Register (19 TexReg 5573). Sections 67.60, 67.70, 67.80, 67.81, and 67.83 are adopted without changes and will not be republished. The new section lists the responsibilities of the department to initiate administrative action against an auctioneer to suspend, revoke, or deny a license based on action in another state. Section 67.70 requires auctioneers to notify the department within 30 days after conviction of a felony or misdemeanor or after suspension, revocation, or denial by another state. The statement that fees are not refundable has been deleted from sec.sec.67.80, 67.81, 67.82, and 67.83. Section 67.100 clarifies the disclosure to a consumer required in advertising. The new sec.67.60 and the amendments to sec.67.70 and sec.67.100 will function by making consumer protection more effective. The amendments to sec.sec.67.80, 67. 81, 67.82, and 67.83 will function by increasing program integrity. Comments were received from several auctioneers against sec.67.100. The comments concerned the limits on the number of exceptions allowable in a sale advertised as without reserve, the ethics of advertising a sale without reserve even if exceptions are disclosed in the advertisement, and viability of readvertising a sale with changed terms. The department has revised the section in a manner that satisfies both the auctioneers who commented and the department. The new and amended rules are adopted under Texas Civil Statutes, Article 8700, which authorizes the department to license and regulate auctioneers. sec.67.100. Technical Requirements -General. (a)-(c) (No change.) (d) If an auctioneer advertises an auction as "absolute" or "without reserve," no lots included may have a minimum bid. Advertising may include the wording, "many lots are without reserve;" however, the auction may not be titled, headed or called an "absolute" or "without reserve" auction unless all lots meet that criteria. (e) All auctioneers and auction companies shall notify consumers and service recipients of the name, mailing address, and telephone number of the department for purposes of directing complaints to the department. The licensees may use a sticker or rubber stamp to convey the required information. The notification shall be included on any seller or consignor contract and on at least one of the following: (1) a sign prominently displayed at the place of the auction; (2) any bill of sale or receipt to be given to the buyer; or (3) on bidder cards. 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 September 9, 1994. TRD-9447858 Jack W. Garison Executive Director Texas Department of Licensing and Regulation Effective date: September 30, 1994 Proposal publication date: July 19, 1994 For further information, please call: (512) 463-7357 TITLE 19. EDUCATION Part II. Texas Education Agency Chapter 75. Curriculum Subchapter D. Essential Elements-Grades 9-12 Essential Elements for English Language Arts; Other Languages; Mathematics; Science; Health; Physical Education; Fine Arts; Social Studies; Texas and United States History; Economics with Emphasis on the Free Enterprise System and its Benefits; and Business Education 19 TAC sec.75.62 The Texas Education Agency (TEA) adopts an amendment to sec.75.62, concerning the essential elements for languages other than English, without changes to the proposed text as published in the June 21, 1994, issue of the Texas Register (19 TexReg 4806). With the implementation of the recommended high school program and the increase in the amount of foreign language recommended for graduation to three years, essential elements are needed for a third year of American Sign Language (ASL). The amendment adds these essential elements to accompany the current essential elements for ASL I and II. The amendment will allow students who are deaf and other students who may want to become interpreters for the deaf to take ASL as a foreign language and graduate under the recommended high school program. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.21.101, which authorizes the State Board of Education to designate by rule the essential elements of each subject comprising a well-balanced curriculum. 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 September 12, 1994. TRD-9447915 Criss Cloudt Associate Commissioner, Policy Planning and Evaluation Texas Education Agency Effective date: October 3, 1994 Proposal publication date: June 21, 1994 For further information, please call: (512) 463-9701 Chapter 89. Adaptations for Special Populations Subchapter J. Migrant Education Program 19 TAC sec.89.331 The Texas Education Agency (TEA) adopts an amendment to sec.89.331, concerning the State Parent Advisory Council for Migrant Education, with changes to the proposed text as published in the June 21, 1994, issue of the Texas Register (19 TexReg 4810). The rule establishes the council, describes its responsibilities, and specifies procedures for appointing members. Currently, the rule states that council members are appointed by the State Board of Education (SBOE) for three-year terms based on the recommendation of the commissioner of education. To comply with House Bill 2585, the amendment changes procedures for appointing members so members will be appointed by the commissioner of education subject to confirmation by SBOE for four-year terms. The amendment also includes minor editorial changes. The change to subsection (f) deletes an obsolete reference. No comments have been received regarding adoption of the amendment. The amendment is adopted under Public Law 100-297, 34 Code of Federal Regulations sec.201.35(b), which requires a state agency implementing programs extending for the duration of the school year to establish a parent advisory council; and the Texas Education Code, sec.11.25(d) and sec.11.957(a) and (b), which authorizes the commissioner of education to appoint advisory committees subject to confirmation by SBOE and to establish the durations of advisory committees. sec.89.331. State Parent Advisory Council for Migrant Education. (a) A parent advisory council for migrant education shall be responsible for advising the Texas Education Agency (TEA) in planning, implementing, and evaluating the state program designed to meet the educational needs of migrant children. (b) The State Parent Advisory Council for Migrant Education shall consist of 15 members. The majority of members shall be parents of identified migrant students served in a migrant project. All council members shall be knowledgeable of the needs of migratory children. Because of the high concentration of migrant education programs in a few areas of the state, the council may have more than one representative from the same State Board of Education (SBOE) district. (c) Council members shall be appointed by the commissioner of education for a term of four years upon confirmation by the SBOE. Members shall be eligible for reappointment once. (d) The commissioner of education shall solicit recommendations from local district-wide advisory councils for members to be nominated to the State Parent Advisory Council for Migrant Education. (e) The council shall meet at least three times annually. In scheduling meetings, the chair shall consider the mobility patterns of migrants. (f) A council member who does not attend two of the three regularly scheduled meetings in one calendar year shall automatically vacate membership on the council. 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 September 12, 1994. TRD-9447916 Criss Cloudt Associate Commissioner, Policy Planning and Evaluation Texas Education Agency Effective date: October 3, 1994 Proposal publication date: June 21, 1994 For further information, please call: (512) 463-9701 Chapter 109. Budgeting, Accounting, and Auditing Subchapter D. Adoptions by Reference 19 TAC sec.109.61 The Texas Education Agency (TEA) adopts an amendment to sec.109.61, concerning the adoption by reference of Change 29 to the financial accounting manual (Bulletin 679) for school districts and regional education service centers, without changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5688). The amendment is necessary to comply with state and federal laws and current accounting requirements. Change 29 updates the standard accounting system relating to accrual accounting rules for Foundation School Program revenues and updates Procedure CDE-402 for fund codes previously shown in Appendix E of the manual (issued February 1994). Change 29 also provides the sample audit report format to be followed for the 1993-1994 fiscal year independent audit. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.11.29, which directs the commissioner of education to adopt annually a budget for operating the Foundation School Program, the Central Education Agency, and other programs for which the State Board of Education has responsibility. 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 September 12, 1994. TRD-9447917 Criss Cloudt Associate Commissioner, Policy Planning and Evaluation Texas Education Agency Effective date: October 3, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 463-9701 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 85. Admission and Placement Placement Planning 37 TAC sec.85.37 The Texas Youth Commission (TYC) adopts an amendment to sec.85.37, concerning discharge, without changes to the proposed text as published in the March 18, 1994 issue of the Texas Register (19 TexReg 1942). The justification for amending the section is to provide a more efficient system for length of stay determination and discharge of youth committed to TYC. The amendment will eliminate language which required discharge of TYC youth by age 18 who were committed for an offense which occurred before September 1, 1985. The maximum age of jurisdiction was increased from 18 years to 21 years by the legislature effective on that date. TYC, by policy, will begin discharging youth classified as firearms offenders by age 21 rather than the current age 18. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, sec.61.075, which provides the Texas Youth Commission with the authority to discharge youth from control when it is satisfied that discharge will best serve the youth's welfare and the protection of the public. The proposed rule implements the Human Resource Code, sec.61.034. 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 September 8, 1994. TRD-9447803 Steve Robinson Executive Director Texas Youth Commission Effective date: November 1, 1994 Proposal publication date: March 18, 1994 For further information, please call: (512) 483-5244 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 3. Income Assistance Services Subchapter OO. Electronic Benefit Transfer (EBT) Retailer Requirements 40 TAC sec.sec.3.5001-3.5010 The Texas Department of Human Services (DHS) adopts new sec.sec.3.5001- 3.5010, concerning Electronic Benefit Transfer (EBT) retailer requirements in the Aid to Families with Dependent Children (AFDC) and Food Stamp Programs, in its Income Assistance Services rule chapter. New sec.sec.3.5003, 3.5006, and 3.5010 are adopted with changes to the proposed text as published in the July 8, 1994, issue of the Texas Register (19 TexReg 5342). New sec.sec.3.5001, 3.5002, 3.5004, 3.5005, and 3.5007-3.5009 are adopted without changes to the proposed text and will not be republished. The justification for the new sections is to establish rules regarding the relationship between retailers and the primary EBT contractor and between retailers and DHS. The new sections function by delineating the qualifications and general conditions for retailer participation, requirements for retailers operating point-of-sale (POS) terminals supplied by the EBT contractor, and provisions for POS terminal deployment. The rules will also govern off-line (manual) transactions, settlements and credits, and third-party processor requirements. In addition, the rules will outline appeal rights regarding disputes between a retailer, third-party processor, and the primary EBT contractor. No comments were received regarding adoption of the proposed new sections; however, DHS is adopting the sections with the following clarifications: sec.3. 5003(g) regarding a retailer not being able to charge a fee to a client to access the EBT system is withdrawn. Subsequent to the publication of this proposed rule, the United States Department of Health and Human Services, Administration for Children and Families, notified DHS that clients can be charged a nominal transaction fee to access their AFDC cash accounts under certain conditions. These conditions will be included as provisions in the Retailer Agreement between the primary EBT contractor and each retailer authorized to provide cash-back to AFDC clients. Section 3.5003(h)-(j) are redesignated as sec.3.5003(g)-(i). Section 3.5006(g) is also clarified to identify the specific regulatory citation. Section 3.5010(2) is adopted with a change in the reference in the third sentence from "a hearing" to "an informal review" for consistency. The new sections are adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. The new sections implement the Human Resources Code, sec.22.001 and sec.33. 002. sec.3.5003. General Conditions for Retailer and Third-Party Processor Participation. (a) Compliance with program regulations. Retailer participation is governed by federal regulations set forth in 7 Code of Federal Regulations (CFR) sec.274.12(g). A retailer must also comply with all program regulations governing retailer participation in the Food Stamp program as codified in 7 CFR sec.274 and sec.278 and this title of the Texas Administrative Code. (b) Written agreement. A retailer or third-party processor and the primary Electronic Benefit Transfer (EBT) contractor must execute a written agreement adopted in compliance with 7 CFR sec.274.12(g)(6). (c) Voluntary participation. (1) Participation in the EBT program by a retailer is voluntary. A Food and Nutrition Service-certified retailer must notify the primary EBT contractor in writing that it wishes to decline participation in the EBT program. (2) If a retailer is suspended or terminated as a redeemer of Food Stamp program benefits, for any reason, the retailer must immediately notify the primary EBT contractor and cease utilization of the EBT system to redeem Food Stamp benefits. (d) Training. Retail store employees must be trained in EBT system operation prior to implementation. (1) The primary EBT contractor must provide a retailer with training in the processing of EBT program transactions, including the operation of the equipment (if supplied by the primary EBT contractor). The primary EBT contractor must notify the retailer in advance of the retailer's scheduled time for in-person training. (2) In lieu of in-person training, retailers may receive training by mail. These retailers must certify that they have undertaken the course of written instruction with their staff. (e) Systems testing. After training has been completed, the primary EBT contractor visits the site to determine whether a retailer's equipment, whether supplied by the primary EBT contractor, a third-party processor, or the retailer has passed system testing. When system testing has been approved, access to the EBT system is granted. (f) Nondiscrimination. A retailer must not, on the grounds of race, color, national origin, age, sex, disability, religious belief, or political belief, refuse to process a client's EBT program transaction, or otherwise subject any client, employee, or applicant to actions which are discriminatory in nature. (g) Sufficient cash. A retailer redeeming Aid to Families with Dependent Children (AFDC) program benefits by providing cash-back on a no-purchase- required basis must maintain a sufficient amount of cash on hand to accommodate cash-back transaction volumes. (h) Certifications. A retailer must complete and agree to comply with the terms of: (1) Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion for Covered Contracts; and (2) Texas Corporate Franchise Tax Certification (if applicable). (i) Compliance Audits. A retailer and third-party processor must conduct audits of itself and its processing agents at least annually to ensure compliance with the terms of the Retailer or Third-Party Processor Agreement and the processor interface specifications. These audits may be conducted by either the retailer's or third-party processor's internal auditing staff or by their external auditors, at their option. The resulting letter of compliance must be filed annually with the primary EBT contractor. sec.3.5006. Off-Line (Manual) Transactions. (a) Maximum authorization. The maximum authorized off-line (manual) transaction and benefit account encumbrance is $50 per purchase. The primary Electronic Benefit Transfer (EBT) contractor, and not the Texas Department of Human Services (DHS), is liable to a retailer in the amount of the difference between the $50 maximum and the actual authorized transaction amount when the authorized amount is higher. (b) Manual vouchers with delayed telephone verification. The following procedures apply when a retailer uses manual vouchers with delayed telephone verification. (1) A retailer who does not have immediate access to telephones at the time of purchase must use a manual voucher system with delayed telephone verification when selling food to eligible Food Stamp customers. These retailers include stationary food stores which make home deliveries to Food Stamp households, house-to-house trade routes which operate on standing orders from customers (such as milk and bread delivery routes), food-buying cooperatives, and other food retailers authorized under 7 Code of Federal Regulations sec.278.1. (2) The retailer must telephone the primary EBT contractor before redeeming the manual voucher in order to log the transaction and obtain an authorization number. (c) Manual vouchers with preliminary telephone verification. The following procedures apply when a retailer uses manual vouchers with preliminary telephone verification: (1) A retailer must process off-line (manual) Food Stamp program redemptions accounts when he is able to contact the primary EBT contractor by telephone. A retailer may, at his option, process off-line (manual) Aid to Families with Dependent Children (AFDC) program cash-back redemptions when he is able to contact the primary EBT contractor by telephone. (2) An authorization number for the amount of purchase must be received by the retailer from the primary EBT contractor via telephone before completing the sale. (d) Manual voucher submission and processing. This subsection applies to manual vouchers with delayed telephone verification and preliminary telephone verification. (1) The following information must be entered properly and legibly on the manual voucher form: (A) full names of the client and the sales clerk; (B) client's primary account number (PAN) (this is the embossed number on the client's EBT debit card); (C) total purchase amount; (D) date of purchase; and (E) telephone authorization number. (2) The manual voucher must be submitted to the primary EBT contractor for processing within seven calendar days following the date of purchase. (3) The primary EBT contractor must process submitted manual vouchers within two banking business days of receipt. (4) A manual voucher found to be incomplete or otherwise improperly prepared and submitted must be returned to the retailer for correction and/or completion within four banking business days of the date the primary EBT contractor received it. (e) Electronic voucher transaction (store-and-forward). When the link to the EBT System is down, a retailer may use off-line processing of EBT transactions if the retailer's system, or that of its designated third-party processor, has the capability to electronically store-and-forward an EBT program transaction. Store-and-forward transactions cannot be completed if the point-of-sale (POS) terminal system malfunctions. The following procedures apply to electronic voucher transactions: (1) A retailer must complete a manual voucher as specified in subsection (d)(1) of this section. (2) A retailer must obtain voice authorization from the primary EBT contractor prior to completing the manual voucher transaction. The authorization code must be entered on the manual voucher and in the advice. (3) The period within which a retailer or third-party processor may submit the electronic voucher (advice) transaction to the primary EBT contractor shall not exceed seven calendar days from the date of the original EBT program transaction. (f) Liability for off-line transactions. Liability is assessed as follows. (1) DHS may be held liable only for those off-line (manual) transactions performed in accordance with the provisions set forth in the federal EBT regulations under 7 Code of Federal Regulations sec.274.12(g)(6)(iv) and the processing standards specified under 7 Code of Federal Regulations sec.274.12(h). (2) The primary EBT contractor, and not DHS, is liable to the retailer for off-line (manual) transactions that are conducted in accordance with terms and conditions of the Retailer Agreement but for which an insufficient amount of benefits remain in the client's account at the time the manual voucher is presented for processing and payment. (3) A retailer is not required to process off-line (manual) transactions except when he is able to contact the primary EBT contractor by telephone for authorization. If authorization cannot be obtained before or at the time of purchase, a retailer assumes the risk of insufficient benefits being available in the client's account. (4) A retailer is liable for EBT program transactions completed using voice authorization and electronic voucher store-and-forward capabilities of a retailer's or third-party processor's system which are rejected by the primary EBT contractor upon electronic submission because the retailer and/or third- party processor failed to follow the procedures in subsection (e) of this section. (g) Re-presentation of manual voucher. Neither the primary EBT contractor nor the retailer may "re-present", as described in 7 Code of Federal Regulations sec.274.12(l), a manual voucher for payment if insufficient funds exist when the voucher is submitted for processing and payment. sec.3.5010. Administrative Remedies Regarding Disputes. The following procedures concern contract-related complaints between a retailer or third-party processor and the primary Electronic Benefit Transfer (EBT) contractor. (1) All complaints must be referred to the primary EBT contractor for investigation and resolution. (2) A retailer or third-party processor has the right to request an informal review of any decision of the primary EBT contractor. A written request for an informal review must be filed with the Texas Department of Human Services (DHS) so that DHS receives it within 15 days after the retailer or third-party processor receives the official notice of action from the primary EBT contractor. The request for an informal review must be addressed to the Texas Department of Human Services; Electronic Benefit Transfer Contract Management Unit, Mail Code E-304; P.O. Box 149030; Austin, Texas 78714-9030. (3) Any retailer, third-party processor, or the primary EBT contractor who is dissatisfied with the results of an informal review may obtain an administrative hearing by written request submitted to the Texas Department of Human Services, Hearings Department (Mail Code W-613), P.O. Box 149030, Austin, Texas, 78714- 9030. 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 September 8, 1994. TRD-9447810 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: October 1, 1994 Proposal publication date: July 8, 1994 For further information, please call: (512) 450-3765 Chapter 10. Self-support Services Employment Services 40 TAC sec.sec.10.2312, 10.2313, 10.2314 The Texas Department of Human Services (DHS) adopts new sec.sec.10.2312, 10. 2313, and 10.2314, concerning employment services in its Self-support Services rule chapter, without changes to the proposed text as published in the July 8, 1994, issue of the Texas Register (19 TexReg 5346). The justification for the new sections is to establish rules regarding employment services contracting to include administrative requirements, audits, and basis of payment. The new sections will function by ensuring that employment services contracting will be conducted based on federal and state regulations and policies. No comments were received regarding adoption of the new sections. The new sections are adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The new sections implement the Human Resources Code sec. sec.22.001-22.024. 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 September 7, 1994. TRD-9447710 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: October 1, 1994 Proposal publication date: July 8, 1994 For further information, please call: (512) 450-3765 Chapter 19. Long-Term Care Nursing Facility Requirements for Licensure and Medicaid Certification Subchapter D. Admission, Transfer, and Discharge Rights 40 TAC sec.19.302 The Texas Department of Human Services (DHS) adopts an amendment to sec.19. 302, concerning transfer and discharge, in its Long Term Care Nursing Facility Requirements rule chapter, without changes to the proposed text as published in the April 26, 1994, issue of the Texas Register (19 TexReg 3141). The justification for the amendment is to avoid inappropriate discharges of individuals from nursing facilities. Under normal discharge procedures, individuals being discharged have the right to appeal and remain in the facility during the appeal period. However, if a nursing facility discharges an individual as a danger to the health and/or safety of other residents, the individual loses his right to appeal before being discharged and is discharged as soon as practicable without being allowed to remain in the facility during the appeal period. The amendment will function by providing additional protection of the right of nursing facility residents to remain in the facility by requiring the facility to notify DHS when it contemplates discharging a resident as a danger to the health and/or safety of other residents. During the public comment period, DHS received written comments from the Texas Health Care Association. Comments were also received at a public hearing held on July 15, 1994, from a nursing facility owner and administrator, a representative of a nursing facility provider organization, two employees of nursing facility corporations, who spoke against adoption of the amendment; and the Texas State Long Term Care Ombudsman, who spoke in favor of the amendment. A summary of the comments and DHS's response follows: Comments: Inappropriate discharges are already addressed by the federal regulations; this rule would impose an unnecessary bureaucratic burden. Nursing facilities are required to post the toll-free numbers of the complaint hotline where residents can complain about a discharge. The rule would add costs to nursing facility care, including staff time away from residents while they collected and copied documentation, telephoned the department, and mailed or faxed information, and copying, faxing, or postage costs. The economic reality is that such discharges rarely occur because of the high vacancy rate in Texas nursing facilities. The health and safety hazard to other residents outweighs any benefit to be gained from the rule. Response: Based on reports DHS receives at the regional and state level, the rule provides needed oversight for abuse involving removal of residents for reasons other than emergencies. Although this involves a minority of nursing facilities, DHS believes the rule will cause all nursing facilities to review and document their attempts to care for difficult residents before discharge decisions are made. With regard to additional costs to facilities resulting from the rule, DHS believes requiring a single telephone call and providing a copy of a physician's discharge order is not an undue hardship in light of the trauma an inappropriate discharge causes a resident. The actual cost would be minimal. The number of discharges which fall into this category is small, but for the individual concerned, the effect is great. The rule does not apply to discharges to hospitals, where the majority of true emergencies are sent. DHS is not attempting to interfere with the medical treatment of emergencies. DHS favors adoption of the rule as proposed; however, because of the opposition, DHS will monitor its effect. If the rule is ineffective, DHS will take action to correct or repeal it. 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 and 32. 001-32.042. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on September 7, 1994. TRD-9447709 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: October 15, 1994 Proposal publication date: April 26, 1994 For further information, please call: (512) 450-3765 Subchapter G. Resident Assessment 40 TAC sec.19.604 The Texas Department of Human Services (DHS) adopts an amendment to sec.19. 604, concerning Preadmission Screening and Annual Resident Review (PASARR), in its Long-Term Care Nursing Facility Requirements for Licensure and Medicaid Certification rule chapter, with changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4737). The justification for the amendment is to comply with a directive of the Health Care Financing Administration (HCFA) that DHS consider individuals with a medical necessity determination eligible for nursing facility services. DHS is streamlining the PASARR process by placing most of the assessment and determination functions under DHS. In addition, the amendment establishes a single point of entry and comprehensive assessment system for individuals who seek nursing facility admission. To achieve this, and to ensure that individuals and their legal guardians are informed of alternate placement options, DHS is conducting a Long-Term Care Assessment Pilot Project. Under the direction of the Health and Human Services Commission (HHSC), DHS, with assistance from the Texas Department on Aging (TDoA), and the Texas Department of Mental Health and Mental Retardation (TXMHMR), has developed a preadmission screening process that is being pilot tested in Lubbock, Tarrant, Wise, Smith, Gregg, Bell, Cameron, Hidalgo, Lamar, Bowie, Potter, Randall, and Harrison counties. DHS initially proposed subsection (b)(5), concerning the Long-Term Care Assessment Pilot Project, in the April 26, 1994, issue of the Texas Register (19 TexReg 3142). The amendment will function by making nursing facility services available to more needy individuals, by implementing a more streamlined process for making PASARR determinations, and by providing persons seeking nursing facility admission a comprehensive assessment by a registered nurse and notification of available services. During the public comment period, DHS received comments from the Texas Health Care Association. A summary of the comments received regarding the PASARR amendments and DHS's responses follow: Comment: The commenter stated that the state should conduct Level II assessments after the consumer is admitted into the nursing facility. Response: Federal regulation sec.483.106(a) states that individuals with mental illness, mental retardation, or a related condition must have a preadmission screening. Comment: The commenter suggested that the last sentence in subsection (d)(1) (C) be deleted because the statement is too broad. Response: DHS believes that all individuals, regardless of age, infirmity, and/or disability have a right to specialized services. If individuals choose not to participate in specialized services, they have the right to decline these services. Comment: The commenter suggested the words "and alternate placement" in subsection (e)(1) be deleted. Response: DHS believes that all individuals have a right to choose to move to another setting; therefore, DHS is adopting the subsection without the recommended change. Comment: The commenter suggested deleting from subsection (f)(7) the phrase "or to be inappropriately placed in a nursing facility." Response: DHS agrees and has deleted the phrase as suggested. Comment: The commenter suggested deleting from subsection (g) the phrase "for whom nursing facility placement has been found to be inappropriate" and rephrasing the subsection. Response: DHS is adopting the subsection with changes to include the statement "or who admit or retain individuals who do not need nursing facility services and who require specialized services." A summary of the comments received regarding subsection (b)(5), Long-Term Care Assessment Pilot Project, and DHS's responses follow: Comment: The commenter stated that nursing facilities are not equipped to make advance determinations about financial eligibility for the Medicaid program and recommended rule language be changed to reflect "Medicaid recipients" only. Response: Most individuals seeking first-time nursing facility admission are not Medicaid recipients. Many are borderline private pay and/or are on Medicare and are in the process of applying for Medicaid eligibility. Nevertheless, many nursing facilities regularly admit those individuals into the facility, even though their Medicaid eligibility is pending. Most nursing facilities, through experience or via self-created screening processes of their own, are able to make an assessment of the individual's probable Medicaid eligibility. Comment: The commenter stated that long-term care assessment is time consuming and expensive, and DHS should focus its resources on funding, identifying, and developing community resources instead. Response: DHS agrees that the development of community resources is important and to that end is also implementing the Nursing Facility Waiver in the same pilot sites. Long-term care assessment is important because it provides consumers with information regarding the nursing facility waiver and other community options, so that they make an informed choice regarding their long- term care placement. In providing long-term care options, DHS does not pressure or coerce consumers into making a specific choice. All individuals, as mandated by Medicaid, have freedom of choice regarding both placement option and provider. DHS is using current resources to staff long-term care assessments. Regional staff are taking intakes while PASARR nurses, in addition to Community Care nurses, are conducting the assessments. No additional staff have been hired specifically for this project. More importantly, DHS has streamlined previous roles and responsibilities in order to develop a more efficient system with regard to the assessment. Also, as additional counties are brought into the pilot, process changes are being made to accommodate local resources and needs. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec. sec.32.001-32.042. sec.19.604. Preadmission Screening and Annual Resident Review (PASARR). (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Acute inpatient care-An acute institutional setting that provides medical care, such as a hospital, but does not include inpatient psychiatric care. (2)-(13) (No change.) (14) Mental illness-A current primary or secondary diagnosis of a major mental disorder (as defined in the Diagnostic and Statistical Manual of Mental Disorders, third edition, revised in 1987 (DSM-III-R). This mental disorder is a schizophrenic, mood, paranoid, panic, or other severe anxiety disorder; personality disorder; other psychotic disorder; or another mental disorder that may lead to a chronic disability and does not have a primary diagnosis of dementia (including Alzheimer's disease or a related disorder). The disorder results in functional limitations in major life activities within the past three to six months that would be appropriate to the individual's developmental stage. The individual typically has at least one of the following characteristics on a continuing or intermittent basis: serious difficulty in the areas of interpersonal functioning; and/or concentration, persistence, and/or pace; and/or adaption. Within the past two years, the disorder has required psychiatric treatment more intensive than outpatient care and/or the individual has experienced an episode of significant disruption to the normal living situation for which supportive services were required to maintain functioning at home or in a residential treatment environment or which resulted in intervention by housing or law enforcement officials. (15) Mental retardation-A diagnosis of mental retardation (mild, moderate, severe, and profound) and significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period. (16)-(20) (No change.) (21) QMHP-Qualified Mental Health Professional. An individual who has at least one year of experience working with persons with mental illness. (22) QMRP-Qualified Mental Retardation Professional. An individual who has at least one year experience working with persons with mental retardation and/or a related condition. (23) Parkinson's Disease-A degenerative disease of the central nervous system as diagnosed by a physician in accordance with the Classification of Diseases Ninth Revision Clinical Modification (ICD-9-CM). (24) PASARR-Preadmission screening and annual resident review. (25) PASARR determination-A decision made by Texas Department of Human Services (DHS) PASARR Determination Program professional staff to establish if an individual requires the level of services provided in a nursing facility as contrasted with other settings and if the individual has the need for specialized services for mental illness, mental retardation, and/or a related condition. The decisions are based on information included in the Level II PASARR Assessment. (26) Readmission-An individual who is readmitted to a nursing facility in which he has resided following a temporary absence for acute care hospitalization or for therapeutic leave. (27) Related condition-A severe, chronic disability as defined in 42 Code of Federal Regulations sec.435.1009, that meets all of the following conditions: (A) it is attributable to: (i) cerebral palsy or epilepsy; or (ii) any other condition including autism, but excluding mental illness, found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of persons with mental retardation, and requires treatment or services similar to those required for these persons; (B) it is manifested before the person reaches age 22; (C) it is likely to continue indefinitely; (D) it results in substantial functional limitations in three or more of the following areas of major life activity: (i) self-care; (ii) understanding and use of language; (iii) learning; (iv) mobility; (v) self-direction; and (vi) capacity for independent living. (28) Specialized services for individuals with mental illness-The implementation of an individualized plan of care developed under and supervised by a physician, provided by a physician or other qualified mental health professionals, that prescribes specific therapies and activities for the treatment of persons who are experiencing an acute episode of severe mental illness, which necessitates supervision by trained mental health personnel. (29) Specialized services for individuals with mental retardation or a related condition-A continuous program for each client, which includes aggressive, consistent implementation of specialized and generic training, treatment, health services and related services that is directed toward: (A) the acquisition of the behaviors necessary for the client to function with as much self-determination and independence as possible; and (B) the prevention or deceleration of regression or loss of current optimal functional status. Specialized services do not include services to maintain generally independent clients who are able to function with little supervision or in the absence of a continuous specialized services program. (30) Substantial risk of serious harm to self and/or others-Harm which may be demonstrated either by a person's behavior or by evidence of severe emotional distress and deterioration in his mental condition to the extent that the person cannot remain at liberty, as determined by a court of law. (31) Ventilator dependent-Reliance upon a respirator or respiratory ventilator as a life support system to assist with breathing. (b) Preadmission Screenings. (1) Purpose. All new admissions (private pay, Medicare beneficiaries, and Medicaid recipients) must have a Texas Nursing Facility Client Assessment, Review, and Evaluation (CARE) form (Purpose Code 1 or P) and be screened prior to admission to a nursing facility to determine if: (A) (No change.) (B) the individual needs nursing facility services, as defined by medical necessity; and (C) (No change.) (2) Readmissions. The following individuals are not subject to preadmission screenings: (A) readmissions following hospitalizations; and (B) individuals who: (i) are admitted to the nursing facility directly from a hospital after receiving acute inpatient care at the hospital; (ii) require nursing facility services for the condition for which the individual received care in the hospital; and (iii) have been certified by their attending physician prior to admission to the nursing facility that they are likely to require less than 30 days of nursing facility services. (C) residents who: (i) transfer from their current nursing facility residence to a new nursing facility residence; (ii) have not had any interruption in continuous nursing facility residence other than for acute care hospitalization; (iii) have not had any change in their mental condition; and (iv) have met the PASARR requirements as: (I) stipulated in this section in their current nursing facility residence; and (II) documented in their DHS CARE form and PASARR determination notification letter. (3) Level I Identification Screening. Individuals are identified as having mental illness, mental retardation, or a related condition (MI/MR/RC) through use of DHS's CARE form, Item 34. (A) The attending physician makes a positive response to CARE form Item 34 for the presence of MI if the individual meets two of the three following criteria: (i) has a diagnosis of MI (excluding a primary diagnosis of Alzheimer's disease or dementia); (ii) has a level of impairment that results in functional limitations in major life activities within the past three to six months in the areas of interpersonal functioning, concentration, persistence, pace and/or adaptation to change; or (iii) within the last two years, due to the mental disorder, has had psychiatric treatment more intensive than outpatient care more than once and/or experienced an episode of significant disruption to the normal living situation, for which supportive services were required to maintain functioning at home, or in a residential treatment environment, or which resulted in intervention by housing or law enforcement officials. (B) The attending physician makes a positive response to Item 34 for the presence of MR and/or RC if the individual: (i) has a diagnosis of MR and/or RC; (ii) has any history of MR and/or RC identified in the past; (iii) presents any evidence (cognitive or behavioral functioning) that may indicate the presence of MR and/or a RC; or (iv) has been determined eligible and is referred by an agency that serves people with MR and/or RC. (C) A positive response to CARE form Item 34 requires that an individual must receive a Level II assessment prior to admission to a nursing facility. (D) An individual, who has medical necessity, may be immediately admitted to or continue residing in a nursing facility if: (i) Item 34 of DHS's CARE form is marked no; (ii) an individual is in the nursing facility for convalescent care; (iii) an individual is comatose, functioning at the brain stem level, ventilator dependent, terminally ill, or has a serious medical condition such as chronic obstructive pulmonary disease, anencephaly, Parkinson's disease, Huntington's disease, amytrophic lateral sclerosis, and congestive heart failure which result in an impairment so severe that the individual could not be expected to benefit from specialized services; (iv) an individual has a primary diagnosis of dementia and is not MR and/or RC; (v) an individual has Alzheimer's disease and no other diagnosis of MR and/or RC; or (vi) an individual is determined by DHS during the Level II Assessment process not to have MI/MR/RC. (4) Level II Assessment. DHS staff must contact the attending physician to verify the information marked on DHS's CARE form, Item 34. The physician contact sheet will be used by the assessors to allow the resident's treating physician to have input into the assessment. (A) The assessment process consists of a: (i) PASARR nursing facility assessment; (ii) PASARR mental illness assessment (as appropriate); (iii) PASARR mental retardation and related conditions assessment (as appropriate). (B) Depending on the mental and/or physical condition, DHS sends either a: (i) MI assessment team consisting of: (I) a registered nurse who is a qualified mental health professional; and (II) other qualified mental health professionals. (ii) MR Assessment team consisting of: (I) a registered nurse who is a qualified mental retardation professional; and (II) a psychologist who is also a qualified mental retardation professional with at least a Master's degree. (C) DHS will have other professionals on staff and/or on a consultant basis who have the expertise in the evaluation of individuals with related conditions. (D) If Item 34 indicates "No" on the CARE form, or Item 34 is blank, but Items 16-20 indicate a diagnosis of MI, MR, or RC, it is the responsibility of the nursing facility to contact the PASARR unit of DHS and request screening by an assessment team. (5) Long-Term Care Assessment Pilot Project. Beginning March 1994, DHS is conducting the Long-Term Care Assessment Pilot Project in counties approved by the Texas Board of Human Services. All Medicaid eligible/Medicaid applicants in pilot-site locations who seek admission to a nursing facility must contact the local DHS office to arrange for a long-term care assessment. This assessment meets PASARR requirements stated in this section and meets medical necessity requirements stated in sec.19.1601 of this title (relating to Medical Necessity (MN) and Utilization Review (UR)). Nursing facilities located in the pilot- project locations may not admit new residents until a final PASARR determination and/or medical necessity has been made by the long-term care assessor. (c) Annual Resident Reviews. (1) All current nursing facility residents with an indication of MI/MR/RC must be identified by DHS through on-site visits which includes chart reviews and interviews with residents. (2) The nursing facility is required to assist DHS in identifying all residents who may be MI/MR/RC by providing CARE forms on all residents (Medicaid, Medicare, and private pay) and making residents' records available. (3)-(4) (No change.) (5) If an individual who enters a nursing facility as an exempted hospital discharge and is later found to need more than 30 days of nursing facility care, the NF must request DHS to conduct an annual resident review within 40 calendar days of admission. (d) Determination Process. (1) The assessment data is analyzed by a qualified mental health and/or mental retardation professional in order to determine whether: (A) Nursing facility services are needed, as described in sec.19.1609 and sec.19.1610 of this title (relating to General Qualifications for Medical Necessity Determinations and Criteria Specific to a Medical Necessity Determination). (B) An individual requires specialized services for mental illness. The presence of verbalizations or behaviors which indicate a person may pose a substantial risk of serious harm to self or others is evidence that the person requires specialized services. (C) An individual requires specialized services for mental retardation or a related condition. The presence of response by a person to the environment is evidence that the person requires specialized services. (2) One of the following determinations is made: (A) -(C) (No change.) (D) Nursing facility services are not needed and specialized services are not needed. Those individuals may not be admitted to or continue residing in a nursing facility. Those individuals who are current nursing facility residents must be alternately placed, according to discharge procedures stated under sec.19.302 of this title (relating to Transfer and Discharge). (3) If a nursing facility resident has 30 or more months of continuous residence in a nursing facility preceding the PASARR determination, the resident may choose to remain and receive specialized services in the nursing facility, or seek alternate placement. (4) If during the determination process DHS ascertains that a person does not have MI/MR/RC, the PASARR determination process will be discontinued and the individual may be admitted to the nursing facility. (5) DHS will notify all individuals of the results of their PASARR determination through a letter sent to them, the nursing facility administrator, the attending physician, and the local MHMR authorities, the Texas Department on Aging (TDoA) , and the local Medicaid eligibility unit. Individuals who have undergone a preadmission screening will be notified within ten calendar days of the determination and for individuals who have undergone an annual review, they will be notified within 30 calendar days of the determination. (6) Any individual, or his legal representative or responsible party, not in agreement with the PASARR determination may file an appeal with DHS to receive a DHS fair hearing according to Chapter 79 of this title (relating to Legal Services). (A) When the hearing officer reverses DHS's determination regarding nursing facility admission, the individual seeking entry into the nursing facility may be admitted immediately; and as long as the individual meets all other eligibility requirements, the facility may receive vendor payments. Current residents who have met all eligibility criteria may continue to reside in the facility and receive Medicaid reimbursement retroactive to the date when medical and financial eligibility were in effect. (B) When the hearing officer sustains DHS's determination regarding nursing facility admission, the individual seeking entry into the nursing facility may not enter the facility and may not be Medicaid-certified for nursing facility placement. Current residents who have met all eligibility criteria may be alternately placed. (e) Specialized Services. (1) TXMHMR contracts with the local MHMR authority to purchase case management, specialized services, and alternate placement for persons determined by DHS as requiring specialized services. (2) A case manager will be assigned for those residents who require specialized services. (3) DHS provides specialized rehabilitative services, as stated under sec.19.1103(a) of this title (relating to Specialized Services). (4) An interdisciplinary team will be constituted by the case manager in order to develop a plan for specialized services. This team will identify those additional services required for specialized services that are not already being provided by the nursing facility and covered in the nursing facility daily vendor rate. The following persons must be invited to participate on the team: (A) the Director of Nurses or another appropriate nursing facility representative; (B) primary physician; (C) other professionals deemed appropriate, such as, but not limited to, an occupational therapist, physical therapist, or speech-language pathologist; (D) the individual and/or his guardian, legal representative, or responsible party; and (E) family members, if the individual or legal representative agrees. (5) The case manager will determine how TXMHMR specialized services will be provided by the MHMR authority and will facilitate provision of those services. Those services provided by TXMHMR must meet the relevant portions of TXMHMR's community service standards. (6) The case manager will report monthly to the primary or attending physician and to the nursing facility regarding the delivery of specialized services. (7) (No change.) (8) Specialized services and nursing facility services are to be coordinated and integrated for maximum benefit to the resident. A nursing facility must allow for the MHMR authority or a subcontracted provider to provide specialized services within the facility. If a nursing facility accepts individuals or has individuals who require specialized services for their mental condition, it must establish and maintain a written cooperative agreement with the local MHMR authority that includes: (A)-(C) (No change.) (D) a provision allowing the nursing facility staff to participate in or provide information to the MHMR authority case manager during each resident's specialized services planning; and (E) (No change.) (9)-(11) (No change.) (12) If the individual requires specialized rehabilitation services, the facility must cooperate in obtaining the screening or evaluation. (f) Alternate Placement. (1) (No change.) (2) The local MHMR authority assigns a case manager for those residents who request alternate placement. (3) An interdisciplinary team as described in subsection (e)(4) of this section will be constituted. (4)-(5) (No change.) (6) For those residents who have been determined to not need nursing facility services and to need specialized services and who have 30 continuous months of nursing facility residence, a choice will be offered to either seek alternate placement or remain in the nursing facility. If the resident chooses alternate placement, the following alternate placement activities occur: (A)-(C) (No change.) (7) For those residents determined not to need nursing facility services and to need specialized services but who do not have 30 months continuous residence, the resident will be discharged according to procedures stated under sec.19.302 of this title (relating to Transfer and Discharge). (g) Nursing facilities which admit or retain individuals that have not been screened by DHS or who admit or retain individuals who do not need nursing facility services and who require specialized services will not be reimbursed for that individual, as described in sec.19.1708 of this title (relating to Limitations on Provider Charges to Patients). (h) (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 September 8, 1994. TRD-9447809 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: October 15, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 450-3765 Part X. Texas Employment Commission Chapter 305. Interagency Matters 40 TAC sec.305.3 The Texas Employment Commission adopts new sec.305.3, concerning a memorandum of understanding with the Texas Department of Commerce concerning program planning and budget relating to workforce development programs as required by the Government Code, sec.481.028, without changes to the proposed text as published in the July 26, 1994 issue of the Texas Register (19 TexReg 5698). Section 481.028 requires the Texas Department of Commerce and the Texas Employment Commission to enter into a memorandum of understanding regarding workforce development efforts, and requires each agency to adopt the memorandum of understanding as a rule. This rule is adopted by the Texas Employment Commission to meet these requirements. This rule formalizes the agencies' agreement to cooperate on regional economic planning, coordinate workforce development programs, share information, and cooperate to encourage economic development and employment in Texas. No comments were received regarding adoption of the new rule. The new rule is adopted under Texas Labor Code, Title 4, Subtitle A (formerly Texas Civil Statutes, Article 5221b), which provides the Texas Employment Commission with the authority to adopt, amend, or rescind such rules as it deems necessary for the effective administration of this Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 9, 1994. TRD-9447888 J. Ferris Duhon Legal Counsel Texas Employment Commission Effective date: September 30, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 463-2291 Chapter 307. Charges for Copies of Public Records 40 TAC sec.sec.307.1-307.5 The Texas Employment Commission adopts new sec.sec.307.1-307.5, concerning charges for providing copies of, or access to, public records, without changes to the proposed text as published in the July 26, 1994 issue of the Texas Register (19 TexReg 5698). The new rule establishes the charges the agency will make for providing copies of, or access to, public records. These rules are adopted to comply with Chapter 428, Acts, 73rd Legislature, Regular Session, (1993), which requires agencies to adopt rules establishing charges for copies of public records. Except as otherwise set forth in these rules, the Texas Employment Commission adopts the definitions, methods and procedures, and the charges set out in 1 TAC sec.sec.111.62-111.70 of the General Services Commission rules, concerning charges for public records. No comments were received regarding adoption of the new rules. The new rules are adopted under Texas Labor Code, Title 4, Subtitle A (formerly Texas Civil Statutes, Article 5221b), which provides the Texas Employment Commission with the authority to adopt, amend, or rescind such rules as it deems necessary for the effective administration of this Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 9, 1994. TRD-9447889 C. Ed Davis Deputy Administrator for Legal Affairs Texas Employment Commission Effective date: September 30, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 463-2291