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 15. Consumer Services Division Texas Weights and Measures 4 TAC sec.15.11 The Texas Department of Agriculture (the department) adopts an amendment to sec.15.11, concerning the registration of commercial weighing and measuring devices, without changes to the proposed text as published in the September 20, 1994, issue of the Texas Register (19 TexReg 7321). The amendment is adopted in order to update the department's registration procedures for weighing and measuring devices and to standardize the weights and measures program's late fee and registration fee schedules. The amended section will reduce registration fees for liquefied petroleum gas (LPG) meters from $80 to $25 and will delete fees for testing raw milk storage tanks. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, sec.13.1011, which provides the Texas Department of Agriculture with the authority to adopt rules for the registration of commercial weighing and measuring devices; and sec.13.1151, which provides the department with the authority to collect a fee not to exceed $80 for annual registration of bulk or LPG meters and assess a late fee against a person who fails to make timely payments of an annual registration fee. 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 November 22, 1994. TRD-9451261 Dolores Alvarado Hibbs Chief Administrtive Law Judge Texas Department of Agriculture Effective date: December 13, 1994 Proposal publication date: September 20, 1994 For further information, please call: (512) 463-7583 Chapter 17. Marketing and Development Division Texas Commodity Referendum Act 4 TAC sec.17.20 The Texas Department of Agriculture (the department) adopts new sec.17.20, concerning restrictions on the use of producer assessments collected under the Texas Commodity Referendum Act, without changes to the proposed text as published in the September 23, 1994, issue of the Texas Register (19 TexReg 7493). The Texas Commodity Referendum Act, the Texas Agriculture Code, Chapter 41 (the Act) at sec.41.060, prohibits the use of producer assessments to influence legislation or to promote or oppose the election of candidates to public office. The new section is adopted in order to provide guidance to commodity producer boards established under the Act to follow in their determination of whether an activity proposed for funding is in compliance with sec.41.060. The new section provides a general statement of the prohibition against expending funds to influence legislation or promote or oppose the election of candidates to public office; provides a list of actions that constitute influencing legislation and a list of actions that are not considered to be influencing legislation; provides a list of activities considered to be promoting or opposing candidates seeking election to public office; prohibits indirect funding of actions that constitute influencing legislation; and provides a definition of legislation for purposes of the section. General comments in support of the new section were submitted by the Texas Soybean Producers Board and the Texas Wheat Producers Board. The Texas Peanut Producers Board (TPPB) also submitted comments questioning whether the new section would be in conflict with sec.41.001 of the Act, which provides that "programs may be devised (by commodity boards) to alleviate any condition that serves to impede the production, marketing, or use of any agricultural commodity". Specifically, the TPPB is concerned that the new section would hinder its ability to educate lawmakers on the impact their actions would have on the peanut industry, thereby not allowing the TPPB to fulfill its responsibilities to producers as provided in sec.41.001. The department believes that the section as adopted does specifically allow for providing information to legislative members or their staff for purposes of educating members as long as the information provided is factual, neutral, and does not attempt to influence the outcome of pending legislation. The new section is adopted under the Texas Agriculture Code (the Code), sec.12.016, which provides the Texas Department of Agriculture with the authority to adopt rules necessary for the administration of the Code, Chapter 41. 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 November 22, 1994. TRD-9451262 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: December 13, 1994 Proposal publication date: September 23, 1994 For further information, please call: (512) 463-7583 Part II. Texas Animal Health Commission Chapter 36. Exotic Livestock and Fowl 4 TAC sec.36.1, sec.36.2 The Texas Animal Health Commission adopts amendments to sec.36.1, Definitions, and 36.2, General, to define Exotic Bovidae, without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7868). These amendments are necessary to define Exotic Bovidae to include, among others, water buffalo, gnu (wildebeast), addax, antelope, and nilgai. The adopted language requires a negative brucellosis and tuberculosis test prior to entry. This provision is necessary to assure that exotic bovidae entering the state are free from brucellosis and tuberculosis in order to protect Texas' domestic and exotic livestock population from the diseases. Three comments were received "Against" the adoption of the amendments. The groups and Associations "against" the adoption of the amendments are: Kelly Sutton, General Manager, Showplace Hill, Inc., Dr. Eric Miller of the American Zoo and Aquarium Association, and Dr. Don Farst of the Gladys Porter Zoo. Their comments are summarized as follows: One commenter expressed opposition to the proposed testing requirement because the cost of testing has adverse economic impact, and because of the risk of injury to animals during testing. In addition, it is implied that the proposal is being fostered by the Texas cattle industry and unfairly targets exotics. These factors were not judged to outweigh the disease concerns and thus, the adoption of the regulation proceeded. Two commenters expressed concerns on behalf of the Zoo community. Specifically, those who are members of the American Zoo and Aquarium Association (AZA). Specifically, the concern focused on risk that might involve rare and endangered animal specimens. Both commenters suggested that some carefully considered exemptions to the proposed regulation where rare or endangered animals are involved and extensive health history is available would be considered with disease control principles. These concerns have been taken under consideration and result in changes to this regulation in the future. Meanwhile, requests for waiver of this new provision will be considered on a case-by-case basis where rare or endangered species are involved and adequate health history is provided. The Commission adopts the proposal without changes to define Exotic Bovidae, and to require a negative brucellosis and tuberculosis test prior to entry. The amendments are adopted under the Texas Agriculture Code, Texas Civil Statutes, Chapter 161, which provide the Commission with the authority to adopt rules and set forth the duties of this commission to control disease. The agency hereby certifies that the rules 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 November 21, 1994. TRD-9451208 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 12, 1994 Proposal publication date: October 4, 1994 Chapter 59. General Practice and Procedures Open Records 4 TAC sec.59.5 The Texas Animal Health Commission adopts an amendment to sec.59.5, concerning the procedure for inspecting public records and establishing charges for reproduction of public records, without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7869). Charges for these records will be the charges set by the General Services Commission unless Texas Animal Health Commission determines it the public's best interest to waive those charges. Records may be requested by sending a written request to the Texas Animal Health Commission. This amendment is necessary to set out a uniform procedure for requesting inspection or copies of agency records that are open to the public. It is also necessary to establish charges for those records. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, Texas Civil Statutes, Chapter 552, which provide state agencies the authority to adopt rules regarding inspection and reproduction costs for public records. The 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 November 21, 1994. TRD-9451209 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 12, 1994 Proposal publication date: October 4, 1994 Chapter 59. General Practice and Procedures Petition for Rules or Changes to Rules 4 TAC sec.59.6 The Texas Animal Health Commission adopts an amendment to sec.59.6, concerning the procedure for establishing rules of procedure for petitions for rules or changes to rules, without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7869). A petition that does not comply with form or content requirements will be returned to the petitioner with an explanation of how the petition fails to meet the specified requirements. This amendment is necessary to prescribe the form for a petition for rules or rule change and to set out uniform procedures for the petition's submission, consideration, and disposition. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, Texas Civil Statutes, Chapter 2201, which provide the Commission with the authority to adopt rules regarding petitions for rulemaking. 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 November 21, 1994. TRD-9451210 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 12, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 719-0714 TITLE 16. ECONOMIC REGULATION Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Records and Reports 16 TAC sec.23.11 The Public Utility Commission of Texas adopts an amendment to sec.23.11, with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6692). This amendment adds a new subsection sec.23.11(j) to the Substantive Rules concerning submission of equal opportunity reports to the commission. Subsection sec.23.11(d)(8) provides for submission dates for the required reports. This rule is based upon House Floor Amendment 17 to the Committee Substitute of Senate Bill 498. This amendment was adopted by an overwhelming vote in the 1993 legislative session. Floor Amendment 17 would have required the commission to adopt rules to require utilities to make a good faith effort to issue not less than 15% of the total value of all contracts awarded to historically- underutilized-businesses. This amendment to sec.23.11 requires reporting of information, but does not establish specific goals of any kind. Comments to the proposed amendment were filed by nine parties. The list of respondents includes: Honorable Royce West, Texas Senate (Senator West); Houston Lighting & Power (HL&P); Texas Utilities Electric Company (TU); Central Power and Light Company, Southwestern Electric Power Company, West Texas Utilities Company (jointly referred to as CSW); Gulf State Utilities (GSU); Lower Colorado River Authority (LCRA); Southwestern Bell Telephone (SWB)); and Texas Telephone Association (TTA). GTE Telephone Operations Central Area (GTE) concurred with comments filed by TTA. The following summarizes the comments of the parties, the issues, and the commission's response to the comments. Sen. West states that the language adopted for the rule should be stronger and more explicit than it appears in the proposed rule. But if the commissioners deem it not to be in the public interest to adopt the more directive language, they should, minimally, vote for the amendment as published. Senator West states that minorities constitute approximately 40% of the population of the state of Texas who are captive consumers of the utilities. In view of expected competition in the utility business, it is essential that such a large group of the population participate in opportunities to make it a fair competition. The legislature, having considered the subject matter in the last session and having overwhelmingly voted for it, intended that the matter be addressed by the commission. The commission agrees that the subject matter should be addressed. The commission is unable to make the requirements any stronger than provided in the proposed rule without additional legislative authority. Therefore, the commission accepts Senator West's alternative suggestion to substantially adopt the rule as published so that the legislature may have adequate information to assist it in further deliberations on the subject matter. CSW states that the preamble of the published rule indicated an inappropriate assumption that utilities need to "improve the status in the foregoing areas," and that utilities in general are not providing equal contracting opportunities to historically underutilized business and employment opportunities to minorities. However, CSW agrees that the rule, as currently proposed, does not seem to pose an undue reporting burden to a utility. GSU states that the commission should not impose regular requirements on utilities in this area. The commission's proposed involvement in this area of minority contracting, through reporting requirements, would inevitably move the commission toward increased micromanagement of a utility's business, particularly in view of numerous safeguards imposed by federal and state reporting requirements already in place. While GSU does not necessarily object to voluntarily providing information on the subject matter, it believes that the Commission should not extend its jurisdiction into the contracting and employment practices of utilities through mandatory reporting. HL&P states that it has numerous programs to enable HUBs to participate in contracting opportunities and it works with numerous minority business organizations in an effort to support the community and to exercise good business relations. However, in view of reporting requirements established by several federal and state agencies, the commission's reporting requirements and monitoring would be duplicative of such other reporting efforts. LCRA states that its' board of directors has established affirmative action goals since 1989. LCRA has made considerable progress by increasing the number of minority and women in professional positions by 50%. The management of LCRA provides reports to its board of directors concerning progress toward affirmative action goals on a semi-annual basis and provides monthly up-dates. Extensive EEO reports are provided to the Governor's EEO office containing detailed information about each employee in each EEO category, including salary and ethnicity information in those categories. Such reports are filed every other year. TTA states that its membership supports the commission's proposed rule amendment to require reports related to employment opportunities and business activities that are currently being provided to state or federal governmental agencies. TU states that it supports the reporting requirement of the proposed amendment. The commission interprets these comments filed by utilities as generally supporting or at least not objecting to the reporting requirements specified in this amendment. The commission clarifies that CSW's interpretation of the phrase concerning efforts made by utilities to improve the status of HUBs and minorities in the preamble of the proposed rule is erroneous. Some utilities in comments to published questions indicated that the reporting requirements contemplated in the questions did not tell the whole story of a utility's efforts on the subject matter because some utilities engage in several unreported activities to increase or promote contracting opportunities for HUBs and employment opportunities for minorities and women. The phrase in question was used to permit utilities to voluntarily describe such efforts so that the legislature and the commission are made aware of those efforts. HL&P's assertion that filing copies of required reports will be duplicative of efforts by other agencies is misplaced. Similarly, GSU's assertion that the commission's involvement in this arena will eventually lead to micromanagement of the utilities is without merit. The purpose of reports required by this amendment is to provide the legislature with information useful in further deliberations on the subject matter in which it has expressed interest in the last legislative session, since the legislature may consider this matter in the coming legislative session. As indicated earlier in this preamble, the commission lacks authority to micromanage activities in this area without a further grant of power by the legislature. In regard to due dates for filing the reports, HL&P states that, as proposed, the initial filing due by December 31, 1994 would not reflect a full year's information because the relevant information necessary to complete the current filing is not finalized until well after the year-end. SWB and TU raised similar concerns regarding availability of reports for the first filing. The commission agrees with the concerns expressed by HL&P, SWB, and TU. The commission adopts TU's suggestion to change sec.23.11(d)(8). TU's suggested language provides that copies of reports filed during calendar year 1994 shall be due by December 31, 1994. All subsequent reports shall be filed with the commission concurrently with the respective agency filings. All comments, including those not specifically addressed herein, were fully considered by the commission. The section is adopted under Texas Civil Statutes, Article, 1446c, sec.16, which provides the Public Utility Commission of Texas with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. Cross Index to Statute, Article or Code: Texas Civil Statute Article 1446c. sec.23.11. General Reports. (a)-(c) (No change.) (d) Due dates of reports. All periodic reports must be received by the commission on or before the following due dates unless otherwise specified in this section. (1) Monthly reports: 45 days after the end of the reported period. (2) Quarterly reports other than shareholder reports: 45 days after the end of the reported period. (3) Semi-annual and annual earnings reports: 100 days after the end of the reported period. (4) Shareholder annual reports: seven days from the date of mailing the same to shareholders. (5) Securities and Exchange Commission Filings: 15 days from the initial filing date with the Securities and Exchange Commission. (6) Special or additional reports: as may be prescribed by the commission. (7) Annual reports required by subsections (f)-(h) of this section shall be due June 1 of each year and shall reflect the transactions for the most recent calender year. (8) Reports required by subsection (j) of this section: for filings made during calendar year 1994 the reports shall be due on December 31, 1994, and for subsequent years the reports shall be due at the same time that filings are made with the respective governmental agency. (e)-(i) (No change.) (j) Equal opportunity reports. (1) Definitions. The following words and terms, when used within this subsection, shall have the following meanings, unless the context clearly indicates otherwise. (A) "Minority group members"-include: (i) African-Americans; (ii) American-Indians; (iii) Asian-Americans; (iv) Hispanic-Americans and other Americans of Hispanic origin; and (v) women. (B) "Historically-underutilized-business"-a business entity at least 51% of which is owned by minority group members, or in the case of a corporation, at least 51% of the shares of which are owned, managed, and controlled by minority group members. (2) Each utility that files any forms with local, state or federal governmental agencies relating to equal employment opportunities for minority group members, and/or relating to contracting opportunities for historically- underutilized businesses (e.g., EEOC Form EEO-1, FCC Form 395, GSA Form SF-295, REA Form 268, etc.) shall file copies of those same completed forms with the commission, and submit copies of any other forms required to be filed which contain the same or similar information such as that addressing: (A) the number and value of contracts awarded to historically-underutilized- businesses and goals relating thereto, if any; and (B) personnel data identifying numbers and occupations of minority group members employed by the utility, and employment goals relating thereto, if any. (3) Any additional information relating to the matters described in this subsection may be submitted at the utility's option. (4) On February 1 of each year, the commission shall submit a report summarizing the filed reports to the Texas legislature. (k) Special and additional reports. Each utility, including municipally owned utilities, shall report on forms prescribed by the commission special and additional information as requested which relates to the operation of the business of the utility. (l) Service quality reports. Service quality reports shall be submitted quarterly on a form prescribed by the commission. (m) Research and development reports. Research and development reports shall be submitted annually on a form prescribed by the commission. (n) Report amendments. Corrections of reports resulting from new information or errors shall be filed on a form prescribed by the commission. (o) Semi-annual and annual earnings report. Each utility shall report its semi-annual and annual earnings on forms prescribed by the commission as set out in sec.23.12 of this title, (relating to Financial Records and Reports). (p) Penalty for refusal to file on time. In addition to penalties prescribed by law, the commission may disallow for rate making purposes the costs related to the activities for which information was requested and not timely filed. 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 November 22, 1994. TRD-9451404 John M. Renfrow Secretary of the Commission Public Utility Commission of Texas Effective date: December 13, 1994 Proposal publication date: August 26, 1994 For further information, please call: (512) 458-0100 Part IV. Texas Department of Licensing and Regulation Chapter 78. Talent Agencies 16 TAC sec.sec.78.10, 78.20, 78.30 The Texas Department of Licensing and Regulation adopts amendments to sec.sec.78.10, 78.20, and 78.30, concerning talent agencies, without changes to the proposed text as published in the September 27, 1994, issue of the Texas Register (19 TexReg 7577). The new definition describes temporary locations not required to be separately registered. The amendment to sec.78.20 specifies that anyone that advertises as a talent agent or whose advertising implies he is a talent agency must be registered under the Act. The amendment to sec.78.30 changes the definitions within that section to agree with the definitions in Texas Civil Statutes, Article 5221a-9. The justification for the amendments is that the profession and the public need clarification of requirements. The amendments will function by increasing program integrity and consumer protection. Two comments opposing the amendment to sec.78.20 were received. Both comments stated that advertising a modeling or casting call should not be construed as implying that employment might be obtained by answering the advertisement. The department disagrees with the comments because consumers do not generally have enough knowledge to distinguish between advertisements for obtaining representation and advertisements for other services when this particular wording is used. The amendments are adopted under Texas Civil Statutes, Article 5221a-9, which authorizes the department to register and regulate talent agencies. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 21, 1994. TRD-9451195 Jack W. Garison Executive Director Texas Department of Licensing and Regulation Effective date: December 12, 1994 Proposal publication date: September 27, 1994 For further information, please call: (512) 463-7357 TITLE 22. EXAMINING BOARDS Part XI. Board of Nurse Examiners Chapter 223. Fees 22 TAC sec.223.2 The Board of Nurse Examiners adopts new sec.223.2, concerning Charges for Public Records, without changes to the proposed text as published in the October 14, 1994, issue of the Texas Register (19 TexReg 8093). This new rule is being adopted to outline the charges that will be made for public records. House Bill 1009, 73rd Legislative Session, amended the Texas Open Records Act to require each state agency to specify, by rule, the charges the agency will make for copies of public records. This rule defines the charges that will be made for public records. No comments were received regarding adoption of the rule. The new section is proposed under the Nursing Practice Act (Texas Civil Statutes, Article 4514), sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it and House Bill 1009-Chapter 428, Acts, 73rd Legislature, Regular Session (1993). Article 4527 of the Nursing Practice Act is affected by this proposed new section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 21, 1994. TRD-9451177 Louise Waddill, Ph.D., R.N. Executive Director Board of Nurse Examiners Effective date: December 12, 1994 Proposal publication date: October 14, 1994 For further information, please call: (512) 835-8675 Part XXII. Texas State Board of Public Accountancy Chapter 519. Practice and Procedure Failure to Attend; Default Judgment 22 TAC sec.519.47 The Texas State Board of Public Accountancy adopts new sec.519.47, with changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7872). The new rule will remove a comma after the word "true" and before the word "without" in subsection (a), will remove a comma after the word "hearing" and before the words "and upon" in subsection (b), the addition of the word "notice" after the word "means" and before the word "sufficient" in subsection (b), the addition of a comma after the word "Code" and before the word "Sections" in subsection (b). In addition, the words "as contained" replace the word "set" in the boldface typed portion (the last sentence) in subsection (b). Lastly, the preamble printed in the Register had the correct section number (sec.519.47) but in the printing of the section language the section was incorrectly printed as sec.510.47, and this is now being corrected. This new rule shortens disciplinary hearings when a party fails to appear. This new rule will function by allowing the taking of a default judgment without having to present additional evidence and testimony. No comments were received concerning adoption of the new rule. The new section is adopted under Texas Civil Statutes, Article 41a-1, sec.6, which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to carry in effect the purposes of the law. sec.519.47. Failure to Attend; Default Judgment. (a) If a respondent fails to appear in person or by legal representative on the day and at the time set for public hearing, the administrative law judge, upon motion by the petitioner, shall enter a default judgment in the matter adverse to the respondent who has failed to attend the public hearing. For purposes of this section, default judgment shall mean the issuance of a proposal for decision against the respondent in which the allegations against the respondent in the notice of public hearing are deemed admitted as true without any requirement for additional proof to be submitted by the petitioner. (b) Any default judgment granted under this section will be entered on the basis of the allegations contained in the notice of public hearing and upon the proof of proper notice to the defaulting party opponent. For purposes of this section, proper notice means notice sufficient to meet the provisions of the Government Code, sec.sec.2001.051, 2001.052 and 2001.054, and sec.519.6 of this title (relating to Service in Nonrulemaking Proceedings); such notice also shall include the following language in capital letters in 12-point boldface type: FAILURE TO APPEAR AT THE HEARING WILL RESULT IN THE ALLEGATIONS AGAINST YOU AS CONTAINED IN THIS NOTICE BEING ADMITTED AS TRUE, REGARDLESS OF WHETHER ADDITIONAL PROOF IS SUBMITTED. 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 November 11, 1994. TRD-9451234 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: December 13, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 505-5566 Part XXXIV. Texas State Board of Social Worker Examiners Chapter 781. Social Worker Licensure The Texas State Board of Social Worker Examiners (board) adopts the repeal of existing sec.sec.781.101-781.106, 781.201-781.208, 781.301-781.305, and 781.401- 781.410; and new sec.sec.781.101, 781.102, 781.201-781.217, 781.301-781. 315, 781.401, 781.402, 781.501-781.514, 781.601-781.608, and 781.701-781.707, concerning the licensing and regulation of social workers. Sections 781.102, 781.201, 781.205, 781.213, 781.216, 781.217, 781-301-781.303, 781.309, 781.310, 781.315, 781.401, 781.402, 781.503, 781.505, 781.506, 781.509, 781.512-781. 514, 781.602-781.604, 781.703-781.707 are adopted with changes to the proposed text as published in the July 19, 1994, issue of the Texas Register (19 TexReg 5575). The remaining sections are adopted without changes to the proposed text and will not be republished. The existing sections are repealed to allow for the adoption of new sections concerning the regulation and licensing of professional social workers in the State of Texas. The new sections will implement the provisions of the Texas Professional Social Work Act, Human Resource Code, Chapter 50 as amended by Senate Bill 1426, 73rd Legislative Session, 1993; update and clarify existing rules; and better assist licensees in understanding and compliance with the rules. Specifically, the new sections cover the purpose and scope; definitions; responsibilities; meetings; board training; transaction of official business; agendas; minutes; elections; officers; committees; executive director; reimbursement for expenses; official records of the board; impartiality and non- discrimination; applicants with disabilities; license; roster; fees; qualifications; supervision for specialty recognition; application; required documentation of qualifications for licensure; fitness of applicants for licensure; materials considered in determination of fitness of applicants; finding of non-fitness for licensure; provisional licenses; temporary license; examination requirements; application denial; required reports to the board; code of ethics; standards of practice; general; staggered renewals; license renewal; late renewal; inactive status; emeritus status; active military duty; purpose; hour requirements for continuing education; types of acceptable continuing education; activities unacceptable as continuing education; approval of continuing education providers; acceptance of continuing education approved by another licensing board; credit hours granted; continuing education documentation; purpose; disciplinary action; notices; complaint procedures; licensing of persons with criminal backgrounds; suspensions, revocation, or nonrenewal; informal disposition; default orders; monitoring of licensees; purpose; general; notice; subpoenas; pre-hearing conferences; hearing procedures; and action after the hearing. The board made the following changes to the proposed sections as a result of the following comments. The terms "private independent practice", "sexual exploitive behavior" and "sexual contact" have been added to the definitions in sec.781.102 for further clarification. One commenter suggested that the board should add the term "case management" into the definition of "professional social work practice" in sec.781.102. The board disagreed due to the term "case management" being so broad. The term would be very difficult to define. One commenter wanted to know how to get an item on the board agenda. The board added a subsection at sec.781.205(b) to state "Requests for items to be placed on the agenda must be submitted to the executive director at least 30 days in advance of the scheduled meeting". One commenter requested that in sec.781.209(g) the complaints committee members should be limited to social workers licensed at the same level as the social worker against whom a complaint has been filed. The board disagreed because the complaints committee is a standing committee and it would be impractical to change its composition based on the license category of the social worker under investigation. One commenter suggested that "gender, age, and political affiliation" be added in sec.781.213(a) to be consistent throughout the rules. The board added these terms into this section. A staff person stated that in previous meetings on writing the rules it was discussed not to have phone numbers printed in the directory as required by sec.781.216(b). The board discussed this issue and agreed that there may be some safety and privacy issues with printing telephone numbers of licensees so the reference to telephone numbers has been deleted. However, if a person in private practice wants to have his or her phone number printed in the directory he or she can do this through the board office. A staff person stated that there was a discrepancy between sec.781.217 on "inactive status fee" to go back to active status and sec.781.505 which says the fee will be prorated. The fee list in sec.781.217 says $15.00 plus renewal fee for specialty recognition if applicable. The board reviewed this problem agreed; so paragraph (9) in sec.781.217 has been delted and sec.781.505(d) was changed to read "A person must notify the board in writing to reactivate the persons's status. Reactivation status shall begin on the first day of the month following payment of the license fee. The license fee shall be prorated to the next renewal date in accordance with sec.781.502 of this title (relating to Staggered Renewals)." Two commenters on sec.781.301(a)(3)(B) wanted to know if three years of experience is enough with an associates degree. The board feels that three years of experience is enough. In addition, the board clarified that a SWA's out-of- state supervisor may have an equivalent license, instead of a Texas license. Further clarification has been added to sec.781.301(a)(3)(A) regarding an out- of-state supervisor having an equivalent license. Section 781.301(a)(4)(B) and (a)(5)(B) have been clarified to include people who are applying for LMSW-ACP or LMSW-AP who have received their experience in another state. Two commenters on sec.781.301(a)(4)(B) felt that five years of experience should be required. The board feels as though three years of is enough experience. Section 781.301(a)(4)(A),(B) and (C) have been clarified to include individuals who received their experience and supervision from out of state. In sec.781.301(a)(5)(A),(B) and (C) were clarified to include individuals who received their experience and supervision from out of state. Concerning sec.781.301(a), one commenter stated that individuals with doctoral degrees in social work should not be in the LMSW category. The board responded that this degree is in the LMSW category under the Human Resource Code, Chapter 50 so no change was made. One commenter disagreed with sec.781.301(b)(1) which allows an Advance Clinical Practitioner to provide clinical and nonclinical social work. The commenter felt that ACP's may be very competent clinicians with all the necessary skills, but an ACP may not have the necessary and specialized skills to engage in such areas as community organization, planning, administration, teaching, research, administrative supervision and nonclinical consultation. The board disagreed because other sections of the rules make it clear that an ACP must only offer services for which he or she is competent. Concerning sec.781.301(b)(3), one commenter stated that she did not support this subsection because a person who holds a SWA and a LPC license should be able to be in private practice as an LPC. The board agreed and has clarified this section. Concerning sec.781.301, one commenter suggested adding in a specialty recognition for case management. The board did not find sufficient evidence to develop a new specialty. Concerning sec.781.301, one commenter wanted supervision to be open to other disciplines. The board feels supervision by a social worker is necessary to assure an appropriate level of identification with the social work profession. Four commenters stated that they liked sec.781.302 (Supervision for Specialty Recognition). One commenter stated that sec.781.302(a)(2) and (3) needed clarification in regards to the 30 and 90 days being a guideline and that there may be circumstances where this can not be done due to turnover in staff. The board believes that the times in the rule are mandatory and offer sufficient time for an individual to comply. One commenter wanted to know how one can take professional responsibility under sec.781.301(b)(2), if supervision is occurring outside the agency. The board stated that an individual takes on a level of responsibility when he or she provides supervision no matter whether the supervision is in or outside of an agency setting. Section 781.302(b)(3) has been reformatted to make it more readable. Concerning section 781.302(b)(3)(B) the words "social worker" have been added to clarify the type of graduate course needed. Concerning section 781.302(b)(3)(D) the word "course" has been replaced with "program" for further clarification. Concerning sec.781.302, one commenter stated that current ACP supervisors should be grandparented under the new section. The board stated that the rules were written to assure competency and were sufficiently broad to cover most current ACP supervisors and, therefore, a grandparenting clause was unnecessary. Section 781.303(e) has been clarified concerning the 12 month periods. The last sentence in sec.781.303(g) has been taken out because there are no additional fees for the approval of the upgrade. The subsection now reads, "No additional fee is required before recognition as an ACP or AP is granted." Also the word "license" has been changed to "licensee", to correct a typing error. One commenter opposed letting degrees from schools in candidacy status count toward an LSW or LMSW under sec.781.304(b)(2). The board believes that the proposed rule meets the intent of the law without penalizing social work programs in candidacy status or the students who participate in these programs. No change was made. Concerning sec.781.304, one commenter wanted to know about people who graduate prior to the program's accreditation or candidacy status. She wanted to know if they are eligible for the LSW or LMSW. The board stated that since the program was not accredited or in candidacy, its graduates are not eligible for the LSW or LMSW. One commenter stated in general that she would like to see case management experience specified and identification of social work with case management in the proposed rules. This person was concerned with the case management movement, especially in health care and hospitals, etc. The board agrees that some social workers do engage in case management but did not accept this recommendation because the field of case management is too broad to attempt to define. One commenter wanted to know what constitutes a supervisor under sec.sec.781. 301 or 781.302. Is a supervisor the person who does their evaluations? The board stated that a work supervisor and a supervisor under this chapter may be different persons. The definition of "supervision" in sec.781.102 addresses the responsibilities of a supervisor under this chapter. One commenter disagreed with section 781.305(3). The board believes that the language as written is one way to define public trust. Section 781.309(a)(l) has been clarified to read "A person holding a temporary license must take the designated examination within six months of issuance of the temporary license." Section 781.310(b) has been clarified concerning reexaminations. Concerning sec.781.311 one commenter stated that people who applied prior to the rule changes should be able to take the examination again without petitioning the board. The board took the position that all applicants must comply with the rules unless specifically exempted from a rule. No change was made. One commenter stated that he liked sec.781.311 (Alternate Method of Examining Competency). Concerning sec.781.311(a)(3) one commenter requested that two social workers should have to submit documentation. The board referred this comment to the supervision committee for further review. One person commented that in sec.781.311(b) and (d) the board should vote with a 2/3 majority. The board disagreed and stated that the majority vote requirement is used by the board for all votes. Concerning sec.781.315(a)(2) the word "licensee" was changed to "license" for further clarification. Section 781.402(f) was revised to prohibit a licensee's promotion of personal or business activities to a client. Concerning sec.781.402 one commenter stated that when laws are referenced in the rules, social workers should get copies of these laws. The board stated that laws that are referenced will be published in the social worker directory. One commenter stated that she supports sec.781.401 and sec.781.402. One commenter stated that in sec.781.402(j) the social worker should be able to bill the client if the client does not show for the appointment. The board stated that the social worker can bill for a missed appointment if agreed to by the client but cannot bill third parties for sessions that did not take place. Section 781.402(j)(1) was clarified. Section 781.402(o) was revised to delete the Texas Penal Code, 21.14 which was repealed. One comment was made that the board is setting itself up as an authority on criminal justice in sec.781.402(p). The board responded that this subsection has nothing to do with criminal justice. Such reporting is required by the Texas Civil Practice and Remedies Code, Chapter 81. No change was made. Concerning sec.781.402(t) one commenter suggested adding the language "after first confronting the offending licensee to try to resolve the problem". He suggested the board add similar language into the rules for licensed psychologists and that by doing so this could save the board a great deal of time, effort and money if implemented. The board did not agree that a complainant should be required to confront the social worker prior to filing a complaint. Concerning sec.781.402(cc), one commenter suggested that the board add in the word "academic" before the word "credentials" to distinguish from legal credentials. The board does not feel as though this was necessary; and that the language as proposed is clear. A person pointed out that the board is issuing a dated seal instead of a new license each year at renewal in contradiction to sec.781.503(e). The board agrees and has changed the language accordingly. Concerning sec.781.505(d) the words "reactivation status fee" have been replaced with "license fee" to be consistent with the fees section. Concerning sec.781.506(c), one commenter stated that emeritus status social workers should be allowed to earn some money for occasional work such as consultation and speaking engagements. The board disagrees and maintains its position that if a person was working as a social worker the person could not be on emeritus status. One commenter disagreed with sec.781.506(d). He did not feel as though it is fair to penalize someone for coming back into the field by requiring the late fee and having to reapply. This section was revised to delete the additional penalty fee for late renewal. Concerning sec.781.508, three commenters wanted to keep the same continuing education requirements. The board believes that requiring CEU's helps assure quality continuing education. Concerning sec.781.503, one commenter stated that renewal should be over a two year period instead of every year. The board response is that in the Human Resource Code, sec.50.023(a) it states "The board by rule shall adopt a system under which licenses or, orders of recognition issued under this chapter expire on various dates during the year, and the dates for renewal shall be adjusted accordingly." Concerning sec.781.508, two commenters felt that l.5 CEU's were too many and too expensive. The board believes that requiring l.5 CEU's is adequate and is not any more expensive than previous requirements. Concerning sec.781.508, six commenters stated that the board should keep the ethics training in for renewal. The board does not feel as though it had enough information to require specialized training. Concerning sec.781.509, two commenters stated that the continuing education should be related to the licensee's practice area. The board believes that the licensee is capable of determining what type of continuing education should be taken. Concerning sec.781.509, one commenter stated that continuing education should not be limited to those programs only approved by the board. The board stated that the ruled do not limit continuing education only to approved programs of the board. Licensees should refer to sec.781.509 (Types of Acceptable Continuing Education). Concerning sec.781.508, one commenter stated that it is difficult to get continuing education due to work not allowing her off and not paying for any of the continuing education costs. The board believes that it is the responsibility of each licensee to obtain continuing education. One commenter stated that a licensee should be able to get continuing education credit in sec.781.510(2) for serving on committees. The board does not believe that serving on a committee is considered continuing education. Concerning sec.781.505, one commenter stated that "the demand for a certain number of hours for training apparently was written into the rules by the providers or their agents." The board feels as though continuing education does help ensure continued competency. Concerning sec.781.511(g), one commenter stated that providers should be able to keep a summary of the evaluations instead of keeping all the evaluations due to space problems. The board does not consider that maintaining these evaluations for a two year period was a significant problem. No change was made. In reference to sec.781.511, one commenter felt that training should be conducted by a responsible agency by a responsible person and the lesson plan should be carefully reviewed. The board feels the rules are sufficient to assure the general quality of the continuing education programs. Concerning sec.781.509 one commenter questioned the continuing education requirements for people in administration and planning. The board responded that social workers could obtain any training they believed would assist them, but they would still have to complete the required number of approved hours. Concerning sec.781.512(a) one commenter stated that if the program is approved by another licensing board, it should be automatically approved for social workers. The board disagrees with this position. The rules require individual programs to be approved if they relate to the field of social work. Subsection (a) was revised to clarify this position. The first sentence of sec.781.513(3) was taken out for better clarity and was added to sec.781.513(5). Section 781.513(5) was clarified. One commenter disagreed with sec.781.513(6) because she works overseas and gets her continuing education thru correspondence but the rules only allow l.0 CE for renewal. The board has revised this section to allow persons outside the United States to get all their hours by correspondence. One commenter wanted to know how long social workers need to keep their CE documentation under sec.781.514. The board added language to clarify that documentation of continuing education listed on the renewal form must be retained for two years. Two commenters supported the Complaints and Violations Subchapter. A grammatical correction was made to sec.781.602(a)(4). One commenter stated that sec.781.602(e) violated due process. The board stated that the language did not violate due process but added a sentence to make it clear that the licensee could present information to the board related to reprimand. Concerning sec.781.603(a), one commenter recommended that a complaint should only be filed after first attempting to resolve the issue directly with the social worker. The board does not agree with this position because it is not appropriate to require the complainant to confront the social worker prior to filing a complaint. Concerning sec.sec.78l.603(f) and 781.702(e), one commenter mentioned that all mailings related to complaints should be sent certified mail, return receipt to assure proper notice. The board disagrees because people do not always pick up their mail. Section 781.604(b)(6) was changed to reference "the felony offense of theft", since the law on insurance claim fraud was repealed. One commenter stated that in sec.sec.787.606(b) and (d)(l)(D), (k), (m), (n)(5), and (q), and 781.707(e), references to "complaints committee or executive director" be changed to allow only the complaints committee to make decisions and take action. The board disagrees, stating the executive director was allowed to take certain actions to expedite the process. One commenter stated that sec.781.606(d)(l)(D) should require complaint committee members to be present. The board disagreed with this comment because requiring the complaints committee to attend the hearings may not always be possible. Concerning sec.781.606(l) one commenter requested that the word "sworn" be added before "statement" in the second sentence. The board did not feel it was necessary to have additional statements notarized when submitted. One commenter wanted to know who pays for subpoena costs under sec.781.704(c) . The board stated that the person who wants the subpoena pays according to the Administrative Procedure Act. No changes were made. Section 781.707(c)(3) has been added to address revisions by the board of a proposed order from an Administrative Law Judge. Minor typographical and grammar changes were made throughout the text. The following organizations commented on the rules: National Association of Social Workers, Texas Society of Clinical Social Workers, Child & Family Services, Inc., Houston Study Group, Fort Worth Independent School District, and Communities in Schools. All commenters were generally in favor of the rules but expressed concern, offered suggestions, and requested clarification indicated in the summary of comments. Certification Requirements 22 TAC sec.sec.781.101-781.106 The repeals are adopted under the Human Resources Code, Chapter 50, which provides the Texas State Board of Social Worker Examiners with the authority to adopt rules that are necessary to administer the Texas Professional Social Work Act. The repeals implement the Texas Professional Social Work 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 November 22, 1994. TRD-9451272 Catherine Clancy Chairperson Texas State Board of Social Worker Examiners Effective date: December 13, 1994 Proposal publication date: July 19, 1994 For further information, please call: (512) 458-7236 Subchapter A. General Provisions 22 TAC sec.781.101, sec.781.102 The new sections are adopted under the Human Resources Code, Chapter 50, which provides the Texas State Board of Social Worker Examiners with the authority to adopt rules that are necessary to administer the Texas Professional Social Work Act. sec.781.102. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Act-The Texas Professional Social Work Act, Human Resources Code, Chapter 50. Accredited colleges or universities-Colleges or universities as reported by the American Association of Collegiate Registrars and Admission Officers. Administrative Law Judge (ALJ)-A person within the State Office of Administrative Hearings who conducts hearings under this chapter on behalf of the board. Agency-A public or private employer or business entity providing social work services. APA-The Administrative Procedure Act, Government Code, Chapter 2001. Board-Texas State Board of Social Worker Examiners. Client-A person who seeks or receives social work services. A person remains a client until the termination of services. Clinical social work-The practice of providing evaluation, diagnosis, and treatment to individuals, families, or groups with mental or emotional conditions or disorders or who are adversely affected by social or psychosocial stress or health impairment. Confidential information -Information obtained from a client or records relating to a client, including the client's identity, that are not discloseable under applicable law. Council on Social Work Education (CSWE)-The national organization which accredits social work education schools and programs. Department-Texas Department of Health. Detrimental to the client-An act or omission of a professional responsibility that is damaging to the physical, mental, or financial status of the client. Full-time experience -Social work services totalling 30 or more hours per week. Health care professional-A licensee or any other person licensed, certified, or registered by the State of Texas in a health-related profession. License-A regular, provisional, or temporary license or recognition issued by the board unless the content of the rule indicates otherwise. LMSW-Licensed master social worker. LMSW-ACP-Licensed master social worker-advanced clinical practitioner. LMSW-AP-Licensed master social worker-advanced practitioner. LSW-Licensed social worker. Licensee-A person licensed or recognized by the board to perform professional social work practice. Nonclinical social work-The areas of social work practice that include community organization, planning, administration, teaching, research, administrative supervision, nonclinical consultation and other related social work activities. Part-time-Social work services totalling less than 30 hours per week. Private independent practice-The practice of a social worker who is solely responsible for the services provided and for establishing the conditions of exchange with clients. Professional social work practice-Services and actions performed for compensation to effect changes in human behavior, a person's emotional responses, interpersonal relationships, and the social conditions of individuals, families, groups, organizations, and communities. For the purpose of this definition, the practice of professional social work is guided by special knowledge, acquired through formal professional social work education, of social welfare policies and services, social welfare systems and resources, human development and behavior within the context of the social environment, and methods to enhance the functioning of individuals, families, groups, communities, and social welfare organizations. Professional social work practice involves the disciplined application of social work values, principles, and methods, including psychotherapy, marriage and family therapy, couples therapy, group therapy, counseling, assessment, and evaluation. Professional social work practice may also be referred to as social work services. Recognition-Authorization from the board to engage in the private, independent or specialty practice of social work services. Sexual exploitive behavior-A pattern, practice or scheme of conduct which may include sexual contact, that can reasonably be construed as being for the purposes of arousal or gratification or sexual abuse of any person. Sexual contact -Any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person (Texas Penal Code, sec.21.01). Social worker-A person licensed under the Act as a SWA, LSW, LMSW, LMSW-AP or LMSW-ACP. SWA-A person licensed as a social worker associate. Supervision-The professional relationship between a supervisor and a social worker which provides evaluation and direction over the services provided by the social worker and promotes professional development of knowledge, skills, and abilities to provide social work services. It may include, without being limited to, direct observation or the review of case presentations, audiotapes, or videotapes. Termination-The end of professional services, meetings, and billing for services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 22, 1994. TRD-9451273 Catherine Clancy Chairperson Texas State Board of Social Worker Examiners Effective date: December 13, 1994 Proposal publication date: July 19, 1994 For further information, please call: (512) 458-7236 Application Process 22 TAC sec.sec.781.201-781.208 The repeals are adopted under the Human Resources Code, Chapter 50, which provides the Texas State Board of Social Worker Examiners with the authority to adopt rules that are necessary to administer the Texas Professional Social Work 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 November 22, 1994. TRD-9451274 Catherine Clancy Chairperson Texas State Board of Social Worker Examiners Effective date: December 13, 1994 Proposal publication date: July 19, 1994 For further information, please call: (512) 458-7236 Subchapter B. The Board 22 TAC sec.sec.781.201-781.217 The new sections are adopted under the Human Resources Code, Chapter 50, which provides the Texas State Board of Social Worker Examiners with the authority to adopt rules that are necessary to administer the Texas Professional Social Work Act. sec.781.201. Board Rules. (a) The purpose of this section is to delineate the board's procedures for the submission, consideration, and disposition of a petition to the board to adopt a rule. (b) Submission of the petition. (1) Any person may petition the board to adopt a rule. (2) The petition shall be in writing; shall state the petitioner's name, address, and phone number; and shall contain the following: (A) a brief explanation of a justification for the proposed rule; (B) the text of the proposed rule prepared in a manner to indicate the words to be added or deleted from the current text, if any; (C) a statement of the statutory or other authority under which the rule is to be promulgated; and (D) the public benefit anticipated as a result of adopting the rule or the anticipated injury or inequity which could result from the failure to adopt the proposed rule. (3) The petition shall be filed with the board office. (4) The board office may determine the petition does not contain the information described in paragraph (2) of this subsection and shall return the petition to the petitioner. (c) Consideration and disposition of the petition. (1) Except as otherwise provided in subsection (d) of this section, the executive director shall submit a completed petition to the board for consideration. (2) Within 60 days after receipt of the petition, the board shall deny the petition or institute rulemaking procedures in accordance with the Administrative Procedure Act, the Government Code, Chapter 2001. The board may deny parts of the petition or institute rulemaking procedures on parts of the petition. (3) If the board denies the petition, the board shall give the petitioner written notice of the board's denial, including the board's reasons for the denial. (4) If the board initiates rule-making procedures, the version of the rule which the board proposes may differ from the version proposed by the petitioner. (d) Subsequent petitions to adopt the same or similar rules. All initial petitions for the adoption of a rule shall be presented to and decided by the board in accordance with the provisions of subsections (b) and (c) of this section. The board may refuse to consider a subsequent petition for the adoption of the same or similar rules submitted within six months after the date of an initial position. sec.781.205. Board Agendas. (a) The executive director shall be responsible for preparing and submitting an agenda to each member of the board prior to each meeting which includes items requested by members, items required by law, and other matters of board business which have been approved for discussion by the chairperson. (b) Requests for items to be placed on the agenda must be submitted to the executive director at least 30 days in advance of the scheduled meeting. (c) The official agenda of a meeting shall be filed with the Texas Secretary of State as required by law. sec.781.213. Impartiality and Non-discrimination. (a) The board shall make all decision in the discharge of its statutory authority without regard to any person's age, gender, race, color, religion, national origin, disability, sexual orientation, or political affiliation. (b) Any board member who is unable to be impartial in the determination of an applicant's eligibility for licensure or in a disciplinary action against a licensee shall so declare this to the board and shall not participate in any board proceedings involving that applicant or licensee. sec.781.216. Roster of Licensees. (a) Each year the board shall publish a roster of licensees. (b) The roster of licensees shall include, but not be limited to, the name and address of current licensees. (c) The board shall make a copy of the roster available to each licensee, and upon request, copies to other state agencies and the general public. sec.781.217. Fees. (a) The following are the board's fees: (1) application fee for all licenses or specialty recognition -$20; (2) license fee for SWA, LSW, or LMSW-$30; (3) renewal fee for SWA, LSW or LMSW-$30; (4) license specialty recognition (AP or ACP)-$10; (5) renewal fee for specialty recognition-$10; (6) additional or replacement license fee-$10; (7) additional penalty fee for late renewal: (A) 1-90 days-$45; and (B) 91 days but less than one year-$90; (8) inactive status fee-$15; (9) returned check fee-$25; and (10) continuing education sponsor application fee-$50. (b) Fees paid to the board by applicants are not refundable except in accordance with sec.781.303 of this title (relating to Application). (c) Remittances submitted to the board in payment of fees may be in the form of a personal check, cashier's check, or money order; however, a returned check fee must be in the form of a cashier's check or money order. (d) A license which is issued by the board, but for which a check is returned (e.g. insufficient funds, account closed, or payment stopped) is invalid. 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 November 22, 1994. TRD-9451275 Catherine Clancy Chairperson Texas State Board of Social Worker Examiners Effective date: December 13, 1994 Proposal publication date: July 19, 1994 For further information, please call: (512) 458-7236 Certificate Expiration and Renewal 22 TAC sec.sec.781.301-781.305 The repeals are adopted under the Human Resources Code, Chapter 50, which provides the Texas State Board of Social Worker Examiners with the authority to adopt rules that are necessary to administer the Texas Professional Social Work 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 November 22, 1994. TRD-9451276 Catherine Clancy Chairperson Texas State Board of Social Worker Examiners Effective date: December 13, 1994 Proposal publication date: July 19, 1994 For further information, please call: (512) 458-7236 Subchapter C. Licenses and Licensing Process 22 TAC sec.sec.781.301-781.315 The new sections are adopted under the Human Resources Code, Chapter 50, which provides the Texas State Board of Social Worker Examiners with the authority to adopt rules that are necessary to administer the Texas Professional Social Work Act. sec.781.301. Qualifications for Licensure. (a) The following education and experience is required for the specified licenses and specialty recognitions: (1) LMSW-a doctoral or master's degree in social work from a CSWE accredited college or university; (2) LSW-a baccalaureate degree in social work from a CSWE accredited college or university; (3) SWA- (A) a baccalaureate degree from an accredited college or university and one year of full-time social work experience as defined in sec.781.304(c) of this title (relating to Required Documentation of Qualifications for Licensure) under the supervision of a SWA, LSW or LMSW or a person with an equivalent social work license if the experience was completed in another state; or (B) an associate of arts degree in a behavioral science from an accredited college or university and three years of full-time social work experience as defined in sec.781.304(c) of this title under the supervision of a SWA, LSW or LMSW or a person with an equivalent social work license if the experience was completed in another state; (4) LMSW-ACP- (A) qualified to be licensed as a LMSW; (B) three years of full-time experience in a clinical social work position after completion of the qualifications for licensure as a LMSW or its equivalent if the experience was completed in another state; (C) two years of supervision (as part of the three years of experience) under a LMSW-ACP supervisor or its equivalent if the experience is completed in another state; (D) identification with and continued participation in the social work profession as evidenced by licensure as an LMSW, active membership and participation in social work organizations and experience in social work positions; and (5) LMSW-AP- (A) qualified to be licensed as a LMSW; (B) three years of full-time experience in a non-clinical social work position after completion of the qualifications for licensure as a LMSW or its equivalent if the experience was completed in another state; (C) two years of supervision (as part of the three years of experience) under a LMSW-ACP, LMSW-AP supervisor or its equivalent if the experience is completed in another state; (D) identification with and continued participation in the social work profession as evidenced by licensure as a LMSW, active membership and participation in social work organizations and experience in social work positions. (b) Only a person who is licensed and recognized by the board as a LMSW-ACP or LMSW-AP is qualified for the private, independent practice of social work. No further recognition is necessary. (1) As a private practitioner, a LMSW-ACP may provide any clinical or nonclinical social work services. (2) A LMSW-AP must restrict his or her private, independent practice to the provision of nonclinical social work services. (3) A licensee must not engage in any private, independent practice without being licensed and recognized by the board as a LMSW-ACP or LMSW-AP, unless the person is licensed in another profession and acting solely within the scope of that other license. The person may not use the titles "licensed master social worker", "licensed social worker", or "social work associate" or any other title or initials that implies licensure or certification in professional social work services. (c) An applicant for AP and ACP recognition is not eligible for a temporary or provisional license. sec.781.302. Supervision for Specialty Recognition. (a) A LMSW who plans to apply for specialty practice recognition must: (1) submit a supervisory plan to the board for approval by the appropriate committee of the board or executive director at the beginning of supervision or within six months of the effective date of these rules; (2) submit a notice to the board within 30 days of the end of each supervisory plan with each supervisor and a termination evaluation completed by the supervisor; and (3) submit a new supervisory plan within 90 days of changing supervisors. (b) A person who wishes to be an approved supervisor must file a request with the board. A supervisor must: (1) be a LMSW-ACP or LMSW-AP or hold the equivalent social work license or certification in another state; (2) take professional responsibility for the social work services provided within the supervisory plan; (3) A supervisor must meet one of the following: (A) be the agency designated supervisor; or (B) have completed one social work graduate course in supervision from an accredited college or university; or (C) have completed two years of experience as a clinical social work supervisor; or (D) have completed a supervisor's training program acceptable to the board; and (4) currently be engaged in the practice of social work and self-identified as a social worker. (c) On receipt of the request and verification of qualifications, the board will issue a letter of approval to a qualified supervisor. (d) A supervisor must maintain the qualifications described in subsection (b) of this section while he or she is providing supervision. (e) Supervisory sessions may be in one-on-one sessions or in a combination of individual and group sessions. (1) There can be no more than six individuals in a supervision group. (2) Supervision shall consist of no less than 100 hours. (3) Supervision shall be spread out over the experience of the supervisee. (4) Supervision shall be accomplished in one or two hour blocks not exceeding 10 hours per month. (f) Supervision must be face-to-face meetings between the supervisor and supervisee unless the executive director or a committee of the board has granted an exception allowing an alternate form of supervision due to geographical difficulties or physical disabilities. If an alternate form of supervision is approved, limits may be set on the amount of alternate supervision to assure sufficient interaction between the supervisor and supervisee. (g) Supervision completed before the effective date of this chapter will be evaluated on the basis of the rules in effect at the time of the supervision. sec.781.303. Application. (a) An application for licensure must be on the official form designated by the board. Application packets which include the application form are available on request. (b) The application process begins when the completed application form and fee are received in the board office. (c) Receipt of an application form will be acknowledged by a letter from the executive director within 15 working days of receipt. The letter will include: (1) the licensing or recognition category requested; (2) deficiencies in documented qualifications, if any; and (3) additional documentation necessary for examination approval. This could include transcripts, supervisory references and other documents which verify qualifications. (d) A letter approving the applicant to sit for the examination will be mailed within 15 working days of the receipt of all required documentation. (e) If an applicant fails to fully document his or her qualifications within 12 months of filing the application or fails to take the examination within 12 months of approval to sit for the examination, the application will be voided and reapplication may be required. (f) If the applicant passes the examination, the executive director shall mail a notice of approval stating the fee for initial licensure. (g) On receipt of the license fee in the board office, licensure for LMSW, LSW, or SWA will be immediately granted and the license will be mailed to the licensee within 10 working days. (h) In the event an application is not processed in the time periods stated in this section, the applicant has the right to request reimbursement of all fees paid in that particular application process. Application for reimbursement shall be made to the executive director. If the executive director does not agree that the time period has been violated or finds that good cause existed for exceeding the time period, the request will be denied. The executive director will respond to the request for refund within 30 days from the date it is received. Good cause for exceeding the time period is considered to exist if the number of applications for license or license renewal exceeds by 15% or more the number of applications processed in the same calendar quarter the preceding year; another public or private entity relied upon by the board in the application process caused the delay; or any other condition exists giving the board good cause for exceeding the time period. (i) If a request for reimbursement under this section is denied by the executive director, the applicant may appeal to the chairperson of the board for a timely resolution of any dispute arising from a violation of the time periods. The applicant shall give written notice to the chairperson at the address of the board that he or she requests full reimbursement of all fees paid because his or her application was not processed within the applicable time period. The executive director shall submit a written report of the facts related to the processing of the application and of any good cause for exceeding the applicable time period. The chairperson shall provide written notice of the chairperson's decision to the applicant and the executive director. An appeal shall be decided in the applicant's favor if the applicable time period was exceeded and good cause was not established. If the appeal is decided in favor of the applicant, full reimbursement of all fees paid in that particular application process shall be made. (j) The time periods for contested cases related to the denial of a license or a license renewal are not included within the time periods in this section. The time period for conducting a contested case hearing runs from the date the board office mails notice of the proposed denial and ends when the decision of the board is final and appealable. A hearing may be completed within six months, but may extend for a longer period of time depending on the particular circumstances of the hearing. sec.781.309. Temporary License. (a) Prior to examination, an applicant for licensure may obtain a temporary license as a LMSW, LSW, or SWA as long as the applicant meets all the requirements, with the exception of the examination, for the level of license sought. (1) A person holding a temporary license must take the designated examination within six months of issuance of the temporary license. (2) The temporary license is valid until the results of the first qualifying examination are made available (i.e. the first examination taken by the temporary licensee or the end of the six months from issuance of the license if the examination is not taken, whichever is earlier). (b) A person may receive a maximum of two temporary licenses at a certain level of license. (c) A person who failed the examination and is without a valid temporary license may retake the examination under sec.781.310(b) of this title (relating to Examination Requirement). sec.781.310. Examination Requirement. (a) An applicant for licensure or recognition must pass an examination designated by the board. (b) If an applicant fails the examination, he or she may retake the examination no more than twice. An applicant who has failed the examination three times must petition the board to retake the examination. The board may order the applicant to complete one or more social work educational courses as a prerequisite to retaking the examination. sec.781.315. Surrender of License. (a) Surrender by licensee. (1) A licensee may at anytime voluntarily offer to surrender his or her license for any reason, without compulsion. (2) The license may be delivered to the board office by hand or certified mail. (3) If there is no complaint pending, the board office may accept the surrender and void the license. (b) Formal disciplinary action. (1) When a licensee has offered the surrender of his or her license after a complaint has been filed, the board shall consider whether to accept the surrender of the license. (2) When the board has accepted such a surrender, the surrender is deemed to be the result of a formal disciplinary action and a board order shall be prepared accepting the surrender. (3) In order to accept a surrender, the board may require the licensee to agree to certain findings of fact and conclusions of law, including the making of an admission of a violation of the Act or this chapter. (4) Surrender of a license without acceptance thereof by the board or a licensee's failure to renew the license shall not deprive the board of jurisdiction against the licensee under the Act or any other statute. (c) Reinstatement. A license which has been surrendered and accepted may not be reinstated; however, a person may apply for a new license in accordance with the Act and this chapter. 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 November 22, 1994. TRD-9451277 Catherine Clancy Chairperson Texas State Board of Social Worker Examiners Effective date: December 13, 1994 Proposal publication date: July 19, 1994 For further information, please call: (512) 458-7236 Administrative Actions 22 TAC sec.sec.781.401-781.410 The repeals are adopted under the Human Resources Code, Chapter 50, which provides the Texas State Board of Social Worker Examiners with the authority to adopt rules that are necessary to administer the Texas Professional Social Work 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 November 22, 1994. TRD-9451278 Catherine Clancy Chairperson Texas State Board of Social Worker Examiners Effective date: December 13, 1994 Proposal publication date: July 19, 1994 For further information, please call: (512) 458-7236 Subchapter D. Code of Ethics and Professional Standards of Practice 22 TAC sec.781.401, sec.781.402 new sections are adopted under the Human Resources Code, Chapter 50, which provides the Texas State Board of Social Worker Examiners with the authority to adopt rules that are necessary to administer the Texas Professional Social Work Act. sec.781.401. Code of Ethics. (a) A social worker must observe and comply with the code of ethics and standards of practice set forth in this subchapter. Any violation of the code of ethics or standards of practice will constitute unethical conduct or conduct that discredits or tends to discredit the profession of social work and is grounds for disciplinary action. (1) A social worker shall not refuse to do or refuse to perform any act or service for which the person is licensed solely on the basis of a client's age, gender, race, color, religion, national origin, disability, sexual orientation, or political affiliation. (2) A social worker shall truthfully report or present her or his services, professional credentials and qualifications to clients or potential clients. (3) A social worker shall only offer those services that are within his or her professional competency. (4) A social worker shall strive to maintain and improve her or his professional knowledge, skills and abilities. (5) A social worker shall base all services on an assessment, evaluation or diagnosis of the client. (6) A social worker shall provide the client with a clear description of services, schedules, fees and billing at the initiation of services. (7) A social worker shall safeguard the client's rights to confidentiality within the limits of the law. (8) A social worker shall avoid a relationship with other persons that are detrimental to a client or former client. (9) A social worker shall not engage in any exploitive or sexual act with a client or former client. (10) A social worker shall refrain from providing service while impaired due to the social worker's physical or mental health or the use of medication, drugs or alcohol. (11) A social worker shall evaluate a client's progress on a continuing basis to guide service delivery and will make use of supervision and consultation as indicated by the client's needs. (12) A social worker shall refer a client for those services that the social worker is unable to meet and terminate service to a client when continued service is no longer in the client's best interest. (b) The grounds for disciplinary action of a social worker shall be based on the code of ethics or standards of practice in effect at the time of the violation. sec.781.402. Standards of Practice. (a) A licensee shall not knowingly make any misleading, deceptive, fraudulent or exaggerated claim or statement about any aspect of the licensee's services or qualifications or continue to permit such claims on the licensee's behalf. (b) If the licensee learns that inappropriate claims regarding the licensee's services have been made, the licensee will immediately notify the board and take all available steps to correct the inappropriate claims and to prevent their reoccurrence. (c) A licensee shall inform an individual before or at the time of the individual's initial session with the licensee of the following: (1) fees and arrangements for payment; (2) purposes, goals, and techniques; (3) any restrictions placed on the licensee by the board; (4) the limits on confidentiality; and (5) any intent of the licensee to use another individual to provide social work services to the client. (d) A licensee shall inform the client of any changes to the items in subsection (c) of this section prior to or promptly after initiating the change. (e) The provisions of the Health and Safety Code, sec.161.091, et seq. relating to the prohibition of illegal remuneration for the securing or soliciting of clients apply to licensees. (f) A licensee shall not promote the licensee's personal or business activities to a client. (g) A licensee shall make every effort to avoid client relationships which could impair the licensee's professional judgement or otherwise increase the risk of client exploitation. A licensee shall not provide professional services to a member of the licensee's own family, an intimate friend, a close associate, or others whose welfare might be jeopardized by such a dual relationship. (h) In individual and group therapy settings, the licensee shall take reasonable precautions to protect individuals from physical or emotional harm resulting from interaction within a group or from individual therapy. (i) For each client, a licensee shall keep records of the dates of social work services, types of social work services, and billing information. Records held by a licensee shall be kept for five years for adult clients and two years beyond the age of 18 for minor clients. Records held or owned by governmental agencies or educational institutions are not subject to this requirement. (j) A licensee shall bill or permit clients or third parties to be billed on his or her behalf only for those services actually rendered or as legally agreed to by mutual understanding at the beginning of services or as later modified by mutual agreement. (1) Billing should accurately reflect the name(s) of the person(s) providing services. (2) On the written request of a client, a client's guardian, or a client's parent or managing or possessory conservator if the client is a minor, a licensee shall provide, in plain language, a written explanation of the charges for social work services previously made on a bill or statement for the client. This requirement applies even if the charges are to be paid by a third party. (3) A licensee may not persistently or flagrantly overcharge a client. (4) A licensee may not submit to a client or a third party a bill for social work services when the licensee knows that the services were not provided or were improper, unreasonable, or medically or clinically unnecessary. (k) A licensee shall terminate social work services when in the licensee's professional opinion the client is not benefiting from those services. When services to the client are still indicated, the licensee shall take reasonable steps to facilitate the transfer to an appropriate referral or source. (l) A licensee shall not state a professional judgment of any individual's mental, emotional, or behavioral condition unless the licensee has personally interviewed the individual or the licensee discloses with the statement that the licensee has not personally interviewed the individual. (m) A licensee may not persistently or flagrantly overtreat a client. (n) A licensee shall not aid and abet a person's violation of the Act, sec.50.010. (o) A licensee shall not engage in sexual contact or sexually exploitive behavior with a client or former client. (1) A licensee shall not commit an act for which liability exists under the Texas Civil Practice and Remedies Code, Chapter 81, relating to sexual exploitation by a mental health services provider. The licensee need not actually have had a judgement rendered against the licensee under Chapter 81. (2) It is not a defense that the sexual contact or exploitive behavior took place with the client's consent, outside the treatment sessions or off the premises where social work services took place. (p) If a licensee has reasonable cause to suspect that a client has been sexually exploited by a mental health services provider during the course of treatment, or if a client alleges sexual exploitation by a mental health services provider during a course of treatment, the licensee must make a report as provided in the Texas Civil Practice and Remedies Code, sec.81.006. A report under this subsection need contain only the information needed to: (1) identify the reporter; (2) identify the alleged victim, unless the alleged victim has requested anonymity; (3) express suspicion that sexual exploitation, sexual contact, or therapeutic deception occurred; and (4) provide the name of the alleged perpetrator. (q) A licensee shall not: (1) use alcohol or drugs in a manner which impairs the licensee's ability to provide social work services; (2) use illegal drugs of any kind; or (3) promote, encourage, or concur in the illegal use or possession of alcohol or drugs. (r) A licensee shall not disclose any confidential information except as provided in the Health and Safety Code, Chapter 611 or other applicable state or federal statutes or rules. A licensee may take reasonable action to inform medical or law enforcement personnel if the professional determines that there is a probability of imminent physical injury by the client to the client or others or there is a probability of immediate mental or emotional injury to the client. (s) A licensee shall comply with the Texas Health and Safety Code, Chapter 611, concerning access to records. (t) A licensee shall have the responsibility of reporting alleged violations of the Act or this chapter to the board. (u) A licensee shall keep his or her board file updated by notifying the board in writing of changes of name, home and business address, home and business telephone number, and employment. (v) A licensee shall cooperate with the board by furnishing required documents or information and by responding to a request for information from or a subpoena issued by the board or its authorized representative. (w) A licensee shall comply with any order issued by the board relating to the licensee. (x) A licensee shall not interfere with a board investigation by the willful misrepresentation of facts to the board or its authorized representative or by the use of threats or harassment against any person. (y) A licensee shall not file a complaint with the board in bad faith. (z) A licensee shall not display a license issued by the board which has been reproduced or is expired, suspended, or revoked. (aa) A licensee shall not make any alteration on a license issued by the board. (bb) A licensee shall include in any advertisement only information which is true, accurate, illuminating, complete, in context, straight forward and readily verifiable. Advertisement includes, but is not limited to, any announcement of social work services, letterhead, business cards, commercial products, and billing statements. (cc) In any public representation or advertising of a licensee's professional social work credentials, a licensee shall use only those degrees which were received from an accredited college or university. A degree received at a foreign university may be used if the degree could be accepted as a transfer degree by accredited universities as reported by the American Association of Collegiate Registrars and Admissions Officers. (dd) In research with a human subject, a licensee shall take reasonable precautions to ensure that the subject does not suffer emotional or physical harm. (ee) A licensee shall confine the use of data obtained from social work services for the purposes of education or research to content that can be disguised to ensure full protection of the identity of the subject client. (ff) A licensee shall report if required by any of the following laws: (1) Family Code, Chapter 34, concerning abuse or neglect of children; (2) Human Resources Code, Chapter 48, concerning abuse, neglect, or exploitation of elderly or disabled persons; (3) Health and Safety Code, Chapter 161, Subchapter K, sec.161.131 et seq., concerning abuse, neglect, and illegal, unprofessional, or unethical conduct in an in-patient mental health facility, a chemical dependency treatment facility or a hospital providing comprehensive medical rehabilitation services; and (4) Civil Practice and Remedies Code, sec.81.006, concerning sexual exploitation by a mental health services provider. 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 November 22, 1994. TRD-9451279 Catherine Clancy Chairperson Texas State Board of Social Worker Examiners Effective date: December 13, 1994 Proposal publication date: July 19, 1994 For further information, please call: (512) 458-7236 Subchapter E. License Renewal and Continuing Education 22 TAC sec.sec.781.501-781.514 The new sections are adopted under the Human Resources Code, Chapter 50, which provides the Texas State Board of Social Worker Examiners with the authority to adopt rules that are necessary to administer the Texas Professional Social Work Act. sec.781.503. License Renewal. (a) At least 30 days prior to the expiration of a regular license, the board will send notice to a licensee that includes the expiration date of the license, a schedule of the renewal and penalty fees, and the number of credit hours of continuing education needed to complete the renewal requirements. (b) A license renewal form shall be furnished to licensees eligible for renewal. The form shall require the licensee to provide current addresses; telephone numbers; a listing of the continuing education completed; a signed statement regarding any civil lawsuits, criminal cases and convictions or any complaints against, investigations involving, or actions against the licensee by any licensing or certification body related to health or mental health care services; and a statement of continuing compliance with the Act and this chapter. (c) The executive director will respond in writing to the application for renewal within 15 working days of initial receipt and of receipt of a completed application (if the initial application is deficient) notifying the applicant that his or her license is renewed, that the application is deficient, or that renewal is proposed for denial. Failure to process a renewal application in the time periods stated shall be governed by sec.781. 303(h)-(j) of this title (relating to Application). (d) The board shall not renew a license until it receives the completed license renewal form and the renewal fee and the licensee has complied with applicable continuing education requirements. (e) The board shall renew the license of a social worker who has met all requirements for renewal. (f) If a licensee has made timely and sufficient application for renewal, the license does not expire until the board has acted on the renewal. (g) The board shall deny the renewal of a license if the licensee is a party to a formal disciplinary action. A formal action commences when the notice described in sec.781.602(c) of this title (relating to Disciplinary Action; Notices) is mailed by the board. (1) A license that is not revoked or suspended as a result of formal proceedings shall be renewed provided that all other requirements are met. (2) In the case of delay in the license renewal process because of formal disciplinary action, penalty fees shall not apply. sec.781.505. Inactive Status. (a) A licensee with a current license and who is in good standing, but who is not employed to provide social work services in Texas, is eligible for inactive status. The request for inactive status must be submitted in writing to the board prior to the expiration of the license. (b) No continuing education is required of a licensee while on inactive status. (c) The inactive status fee must be paid on or before the expiration date of the license, instead of the renewal fee. (d) A person must notify the board in writing to reactivate the person's status. Reactivation status shall begin on the first day of the month following payment of the license fee. The license fee shall be prorated to the next renewal date in accordance with sec.781.502 of this title (relating to Staggered Renewals). sec.781.506. Emeritus Status. (a) A licensee who is at least 55 years of age or disabled and who is not engaged in professional social work practice is eligible for an emeritus license. The request for emeritus status must be submitted in writing to the board. (b) On receipt of the request the board will issue an emeritus license that will remain valid for the lifetime of the licensee. No renewal fee or continuing education will be required. (c) The emeritus licensee may only use his or her emeritus title in the provision of social work services as a volunteer. The emeritus social worker may not receive any compensation for social work services. (d) An emeritus license can be reinstated as a regular license within one year of the date the emeritus license was issued without being subject to the additional penalty for late renewal of a license. To be eligible for a new license after one year, the person would be required to apply for another license by meeting requirements in effect at the time of the application, including passing the examination. sec.781.509. Types of Acceptable Continuing Education. Continuing education undertaken by a licensee shall be acceptable to the board as credit hours if the education falls in one or more of the following categories: (1) participating in institutes, seminars, workshops, conferences, independent study programs, post graduate training programs, college academic or continuing education courses which are related to or enhance the practice of social work and are offered, sponsored or approved by an approved provider. Approved providers are: (A) accredited colleges and universities; (B) a national or statewide association, board or organization representing members of the social work profession; (C) a person, agency or entity who is approved as a provider in accordance with sec.781.511 of this title (relating to Approval of Continuing Education Sponsor); (D) a person, agency or entity who is approved by a state professional licensing or certification board as a continuing education sponsor or provider as stated in sec.781.512 of this title (relating to Acceptance of Continuing Education Approved by Another Licensing Board). (E) nationally accredited health or mental health facilities; (2) teaching or presenting the activities described in paragraph (1) of this section; (3) writing a published work or making a presentation directed toward or applicable to the profession of social work; or (4) providing professional guidance as a field instructor for social work interns in connection with a college or university accredited by or in candidacy status with CSWE. sec.781.512. Acceptance of Continuing Education Approved by Another Licensing Board. (a) A person, agency or entity approved by another state professional licensing or certification board may request its program(s) be accepted for credit hours by the Texas State Board of Social Worker Examiners. The person, agency or entity shall submit documentation of that board's approval, a statement of the relevance of the program(s) to social work practice and the continuing education sponsor application fee. (b) The executive director will review the documentation and notify the approved provider in writing whether the program(s) are acceptable as credit hours and of the approved provider number, if acceptable. sec.781.513. Credit Hours Granted. The board will grant the following credit hours toward the continuing education requirements for license renewal. (1) One credit hour (0.1 CEU) will be given for each hour of participation in a continuing education program by an approved provider. (2) Credit may be earned through successful completion of postgraduate training programs (e.g., intern, residency, or fellowship programs) or successful completion of social work related courses which are part of the curriculum of a college, university or graduate school of social work at a rate of 5 credit hours (0.5 CEU) per each semester hour or its equivalent. (3) Credit may be earned for verified teaching in a college, university or graduate school of social work. Credit will be applied at the rate of 5 credit hours (0.5 CEU) for every course taught, not to exceed 10 hours (1.0 CEU) per renewal period. (4) A field instructor for a social work intern will be granted 5 credit hours (0.5 CEU) for each college semester completed, not to exceed 10 credit hours (1.0 CEU) per renewal period. (5) A presenter of a continuing education program or an author of a published work which imparts social work knowledge and skills may be granted 5 credit hours (0.5 CEU) for each original or substantially revised presentation or publication, not to exceed 10 credit hours (1.0 CEU) per renewal period. (6) Credit hours may be earned by successful completion of an independent study program directly related to social work offered or approved by an approved provider. With the exception of persons residing outside the United States, a maximum of 10 credit hours (1.0 CEU) for independent study programs will be accepted per renewal period. (7) A licensee may carry over to the next renewal period up to 5 credit hours (0.5 CEU) earned in excess of the continuing education renewal requirements. sec.781.514. Continuing Education Documentation. (a) Credit hours must be listed on the license renewal form supplied by the board. Failure to submit the form or failure to complete the required continuing education is grounds for denial of the application for license renewal. (b) A random sample of renewal applications will be selected for review. (1) Documentation of continuing education listed on the renewal form must be retained for 2 years. (2) A licensee who is selected for review will be notified by mail and required to submit acceptable documentation of the continuing education listed on the continuing education report form. Acceptable documentation includes the following: (A) copies of continuing education certificates of attendance or other form of verification from the provider of the continuing education program; (B) grade reports or transcripts verifying the completion of a college course; (C) letters from the dean or department head or his or her authorized representative verifying the teaching or field instructor assignment; (D) letters from the program sponsor verifying participation as a presenter in a continuing education program or a copy of the program; or (E) copies of continuing education programs and other documentation as necessary to establish the relevance of its content to social work practice for any continuing education program which does not have an approved provider number. (3) All forms of verification must include the subject, date(s), credit hours given and if applicable, name of the sponsor and sponsor approval number. 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 November 22, 1994. TRD-9451280 Catherine Clancy Chairperson Texas State Board of Social Worker Examiners Effective date: December 13, 1994 Proposal publication date: July 19, 1994 For further information, please call: (512) 458-7236 Subchapter F. Complaints and Violations 22 TAC sec.sec.781.601-781.608 The new sections are adopted under the Human Resources Code, Chapter 50, which provides the Texas State Board of Social Worker Examiners with the authority to adopt rules that are necessary to administer the Texas Professional Social Work Act. sec.781.602. Disciplinary Action; Notices. (a) The board shall revoke, suspend, or deny a license or order of recognition, place on probation a person whose license or order of recognition has been suspended, or reprimand a person with a license or order of recognition for any of the following reasons: (1) violation of any provision of the Act; (2) violation of any rule adopted by the board; (3) failure to cooperate in the investigation of a complaint filed under the provisions of this chapter; (4) physical or mental incompetency to perform social work services as determined by the board; (5) provision of false or misleading information to the board regarding his or her qualifications for licensure or renewal or to an inquiry by the board; or (6) any of the grounds described in the Act, sec.50.021(a). (b) Prior to institution of formal proceedings to revoke or suspend a license or recognition, the board shall give written notice to the licensee by personal service or certified mail, return receipt requested, of the facts or conduct alleged to warrant revocation or suspension; and the licensee shall be given the opportunity, as described in the notice, to show compliance with all requirements of the Act and this chapter. (c) If denial, revocation, probation or suspension of a license or recognition is proposed, the board shall give written notice by certified mail, return receipt requested; regular mail; or personal delivery of the basis for the proposal and that the licensee or applicant must request, in writing, a formal hearing within ten days of receipt of the notice, or the right to a hearing shall be waived and the license or recognition shall be denied, revoked, suspended, or probated. (d) Receipt of a notice under subsection (b) or (c) of this section is presumed to occur on the tenth day after the notice is mailed to the last address known to the board unless another date is reflected on a United States Postal Service return receipt or other official receipt. (e) No notice or hearing is required for the board to issue a reprimand other than notice to the licensee of the board meeting where the reprimand will be considered. The licensee shall be given an opportunity to present information at the board meeting. sec.781.603. Complaint Procedures. (a) A person wishing to report an alleged violation of the Act or this chapter by a licensee or other person shall notify the executive director. The initial notification may be in writing, by telephone, or by personal visit to the board office. (b) The executive director will be responsible for the receipt and processing of complaints. The executive director will maintain a log of the receipt, investigation and disposition of all complaints. The board chairperson will appoint a complaints committee to work with the executive director. (c) On receipt of a complaint, the executive director shall send an acknowledgement letter to the complainant, a copy of applicable rules, and an official form which the complainant must complete and return to the board before further action can be taken. The form must be signed under oath. The executive director may accept an anonymous complaint if there is sufficient information for the investigation; however, the executive director shall then complete a complaint form under oath. (d) Within 15 days of the receipt of the official forms, the executive director shall review the complaint to assure that there is sufficient information to initiate an investigation and that the allegations contained in the complaint fall within the board's jurisdiction. (1) If the allegations do not fall within the board's jurisdiction, the executive director shall refer the complaint to the complaints committee. Based on its review of the complaint, the complaint committee may instruct the executive director to: (A) close the complaint with a letter to the complainant explaining why the complaint is not within the board's jurisdiction; or (B) advise the complainant of the additional information necessary to initiate an investigation. (2) If the allegations in the complaint are within the board's jurisdiction and sufficient for investigation, the executive director shall: (A) evaluate the threat to public health and safety documented by the complaint; (B) establish an appropriate plan and schedule for its investigation to be noted in the complaint log; (C) apprise all parties to the complaint of the schedule for the investigation and notify parties within seven days of changes in the schedule; and (D) report the status of all continuing investigations to the complainant and the licensee or applicant every 90 days. (e) The executive director will inform the board if the services of a private investigator are needed for the timely completion of a complaint investigation or for any other reason. (f) The subject of the complaint will be notified of the allegations either in writing, by phone or in person by the executive director or the investigator assigned to the case and will be required to provided a sworn response to the allegations within two weeks of that notice. Failure to respond to the allegations within the two week period is evidence of failure to cooperate with the investigation and subject to disciplinary action. (g) The complaints committee will review the complaint log to ensure that: (1) complaint investigations are being handled in a timely manner; (2) complaints are not dismissed without appropriate consideration; (3) a person who files a complaint has an opportunity to explain the allegations made in the complaint; and (4) any issues related to complaints which arise under the Act or this chapter are resolved. (h) The complaints committee shall determine whether a violation exists and whether to dismiss the complaint as unsubstantiated or to consider appropriate disciplinary action. (i) If a violation is found but it does not seriously affect the health and safety of clients or other persons, the committee may resolve the complaint by informal methods such as a cease and desist order or an informal agreement with the violator to correct the violation. (j) If the complaint is not resolved by the committee, the committee may recommend that disciplinary action be taken or that other appropriate action as authorized by law be taken, including injunctive relief or civil penalties. Action may be taken based on the allegations in the complaint or any violations found during investigation. sec.781.604. Licensing of Persons With Criminal Backgrounds. (a) The board may take action against a licensee or deny a license pursuant to Texas Civil Statutes, Articles 6252-13c and 6252-13d relating to felony or misdemeanor convictions or the Act, sec.50.021(a)(11) relating to felony convictions. (b) The following felonies and misdemeanors relate to licensure as a social worker because these criminal offenses indicate an inability or a tendency to be unable to perform as a social worker: (1) a violation of the Act; (2) an offense involving moral turpitude; (3) failure to report child abuse or neglect; (4) a misdemeanor involving deceptive business practices; (5) the offense of assault or sexual assault; (6) the felony offense of theft; or (7) any other misdemeanor or felony which would indicate an inability or a tendency to be unable to perform as a social worker. 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 November 22, 1994. TRD-9451281 Catherine Clancy Chairperson Texas State Board of Social Worker Examiners Effective date: December 13, 1994 Proposal publication date: July 19, 1994 For further information, please call: (512) 458-7236 Subchapter G. Formal Hearings 22 TAC sec.sec.781.701-781.707 The new sections are adopted under the Human Resources Code, Chapter 50, which provides the Texas State Board of Social Worker Examiners with the authority to adopt rules that are necessary to administer the Texas Professional Social Work Act. sec.78l.703. Notice. (a) The administrative law judge (ALJ) shall ensure that notice of the formal hearing is given in accordance with the notice requirements of the Administrative Procedure Act (APA). (b) If a party fails to appear or be represented at a hearing or proceeding after receiving notice: (1) the ALJ may proceed with the hearing or proceeding or take whatever action is fair and appropriate under the circumstances; and (2) the applicant or licensee is deemed to be in agreement with the allegations and proposed action and to have waived the right to a hearing. Appropriate disciplinary action may be taken by the board. sec.781.704. Subpoenas. (a) On the written request of any party to the hearing, the executive director shall issue a subpoena to require the attendance of witnesses or the production of documents. The administrative law judge (ALJ) may also issue any necessary subpoenas. A subpoena may be served by any person authorized to serve subpoenas under the Texas Civil Practice and Remedies Code. (b) A party or witness may seek to quash the subpoena or move for a protective order as provided in the Texas Rules of Civil Procedure. (c) A witness or deponent who is not a party and who is subpoenaed or otherwise compelled shall be paid for mileage at 28 cents a mile, transportation, meals, and lodging expenses and a fee of $10 per day in accordance with the administrative Procedure Act. sec.781.705. Prehearing Conferences. (a) The administrative law judge (ALJ), on his or her own motion or the motion of a party, may direct the parties, their attorneys, or representatives to appear at a specified time and place for a conference prior to the hearing for the purpose of: (1) the formulation and simplification of issues; (2) the necessity or desirability of amending the pleadings; (3) the possibility of making admissions or stipulations; (4) the procedure at the hearing; (5) specifying the number of witnesses; (6) the mutual exchange of prepared testimony and exhibits; (7) designation of parties; and (8) other matters which may expedite the hearing. (b) The ALJ shall issue whatever orders are necessary to cover the matters or issues. (c) Any action taken at the prehearing conference shall be reduced to writing, signed by the ALJ and the parties, and made a part of the record. sec.781.706. Hearing Procedure. (a) The administrative law judge's (ALJ) duties. The ALJ shall preside over and conduct the hearing. On the day and time designated for the hearing, the ALJ shall: (1) convene and call the hearing to order; (2) state the purpose of and the legal authority for the hearing; (3) announce that a record of the hearing will be made; (4) outline the procedure and order of presentation that will be followed; (5) administer oaths to those who intend to testify; and (6) take any and all other actions as authorized by applicable law and this subchapter to provide for a fair, just, and proper hearing. (b) Presentation. (1) After making the necessary introductory and explanatory remarks on the purpose of and other matters related to the hearing, the ALJ will begin receiving testimony and evidence from the witnesses. (2) The order of proceeding may be altered or modified by the ALJ either upon agreement of the parties or upon his or her own motion when such action will expedite the hearing without prejudice to any party. (3) The adminsitrative law judge (ALJ) may limit the number of witnesses whose testimony will be repetitious. The ALJ may also establish time limits for testimony so long as all viewpoints are given a reasonable opportunity to be expressed. (4) The ALJ, at his or her discretion, may allow final arguments and shall note the time and close the hearing. The ALJ may hold the record open for a stated number of days for the purpose of receiving additional evidence into the record. (c) Consolidation. The ALJ, upon his or her own motion or upon motion by any party, may consolidate for hearing two or more proceedings which involve substantially the same parties or issues. Proceedings shall not be consolidated unless the ALJ finds that such consolidation will be conducive to a fair, just, and proper hearing and will not result in unwarranted expense or undue delay. (d) Conduct and decorum during the hearing. Every party, witness, attorney, representative, or other person shall exhibit in all hearings proper dignity, courtesy, and respect for the ALJ and all other persons participating in or observing the hearing. The ALJ is authorized to take whatever action he or she deems necessary and appropriate to maintain the proper level of decorum and conduct, including, but not limited to, recessing the hearing to be reconvened at another time or place or excluding from the hearing any party, witness, attorney, representative, or other person for such period and upon such conditions as the ALJ deems fair and just. (e) Recording the hearing. The ALJ will keep either a stenographic or other taped record of the hearing proceeding. In the event an independently contracted court reporter is utilized in the making of the record of the proceedings, the board shall bear the cost of the per diem or other appearance fee for such reporter. Any party desiring a written transcript of the proceedings shall contract directly with such court reporter and be responsible for payment of same pursuant to the authority of the APA. In those cases when a tape recording of the formal hearing is made, the board shall make such recording available to any party requesting permission to hear or, with appropriate protective measures, allow such recording to be duplicated. Upon appeal of any final order of the board necessitating the forwarding of the record to a court of law, the board may assess the cost of the transcript to the appealing party. (f) Rules of evidence. The ALJ will apply the Texas Rules of Civil Evidence and also the following rules. (1) Consolidation. The ALJ may consolidate the testimony of parties or persons if the evidence can be effectively consolidated into one document or the testimony of one witness. The standard by which the ALJ should judge this consolidation is whether each party or person can offer unique or new evidence that has not been previously introduced. Any party, under oath, may make an offer of proof of the testimony or evidence excluded through consolidation by dictating into the record or submitting in writing the substance of the proposed testimony prior to the conclusion of the hearing. (2) Exhibits. (A) Form. The parties shall make a reasonable effort to introduce exhibits which will not unduly encumber the files and records of the board. (B) Tender and service. The original of each exhibit offered shall be tendered to the ALJ or a designee for identification and shall be offered to the parties for their inspection prior to offering or receiving the same into evidence. (C) Excluded exhibits. In the event an exhibit has been identified, objected to, and excluded, it shall be given an exhibit number for purposes of identification and shall be included in the record under seal. (D) After the hearing. Unless specifically directed by the ALJ, no exhibit will be permitted to be filed in any proceeding after the conclusion of the hearing except in a reopened hearing or a rehearing. (3) Admissibility of prepared testimony and exhibits. When a proceeding will be expedited and the interests of the parties will not be prejudiced substantially, evidence may be received in written form. The prepared testimony of a witness upon direct examination, either in narrative or question and answer form, may be incorporated in the record as if read or received as an exhibit, upon the witness being sworn and identifying the same as a true and accurate record of what his or her testimony would be if he or she were to testify orally. The witness shall be subject to clarifying questions and to cross- examination and his or her prepared testimony shall be subject to a motion to strike either in whole or in part. (4) Offer of proof. When testimony is excluded by the ALJ, the party offering such evidence shall be permitted to make an offer of proof by dictating into the record or submitting in writing the substance of the proposed testimony prior to the conclusion of the hearing, and such offer of proof shall be sufficient to preserve the point for review by the board. The ALJ may ask such questions of the witness as he or she deems necessary to satisfy himself or herself that the witness would testify as represented in the offer of proof. An alleged error in sustaining any objections to questions asked on cross-examination may be preserved without making an offer of proof. sec.781.707. Action After the Hearing. (a) Proposal for decision. (1) The ALJ shall prepare the proposal and provide copies of the same to all parties. (2) Each party having the right and desire to file exceptions and briefs shall file them with the ALJ within the time designated by the ALJ. (3) Parties desiring to do so shall file written replies to these exceptions and briefs as soon as possible after receiving same and within the time designated by the ALJ. (b) Pleading after close. At any time after the record has been closed in a contested case, and prior to the board's decision becoming final in such case, all briefs, exceptions, written objections, motions, replies to the foregoing, and all other written documents shall be filed with the ALJ. (c) Final orders or decisions. (1) The final order or decision will be rendered by the board. The board may deny, suspend, probate, or revoke a license as it deems appropriate and lawful. A decision of the board may include any requirement to be imposed upon the licensee or applicant which is related to the individual's practice as a licensee and is deemed by the board to be appropriate and lawful. (2) All final orders shall be signed by the chairperson of the board; however, interim orders may be issued by the ALJ. (3) To protect the public interest and to ensure that appropriate principles govern the decisions of the board, it is the policy of the board to change a finding of fact of conclusion of law or to modify a proposed order of an ALJ when the proposed order is: (A) erroneous; (B) against the weight of the evidence; (C) based on a misapplication or misinterpretation of laws, rules, or standards; (D) based on an insufficient review of the evidence; (E) not sufficient to protect the public interest; or (F) no appropriate recognition of whether or not rehabilitation of the licensee or application has occurred. (d) Motion for rehearing. A motion for rehearing shall be addressed to the board and filed with the executive director. (e) Appeals. All communications regarding any appeal shall be to the executive director. 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 November 22, 1994. TRD-9451282 Catherine Clancy Chairperson Texas State Board of Social Worker Examiners Effective date: December 13, 1994 Proposal publication date: July 19, 1994 For further information, please call: (512) 458-7236 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health The following adopted repeals, amemdments and new sections submitted by the Texas Department of Health will be serialized beginning in the December 6, 1994 issue of the Texas Register. The effective dates for these adoptions will be December 12, 1994, and December 19, 1994. Chapter 37. Maternal and Child Health Services Midwives sec.37.175 (amendment) sec.37.178 (repeal) sec.37.178 (new) Chapter 98. HIV and STD Control Subchapter C. Texas HIV Medication Program General Provisions sec.sec.98.104, 98.105 (amendments) Advisory Committee sec.98.121 (repeal) sec.98.121 (new) Chapter 61. Chronic Diseases Kidney Health Care Program 25 TAC sec.61.15 The Texas Department of Health (department) adopts new sec.61.15, concerning the Kidney Health Care Advisory Committee, with changes to the proposed text as published in the September 6, 1994, issue of the Texas Register (19 TexReg 6981). In accordance with Texas Civil Statutes (TCS), Article 6252-33, the department must evaluate each of its advisory committees to determine whether the committee should be continued, modified, consolidated with other committees, or abolished. The present advisory committee, the Kidney Health Care Advisory Committee, was established in 1973. Upon review by the department, rules and by-laws have been prepared for adoption by the board. No comments were received regarding adoption of the new rule. However, the department made a change in the committee's termination process in subsection (e) from automatic termination in 1999 to board review at that time to determine continuation, consolidation or abolishment. The new section is adopted under Texas Civil Statutes, Article 6252-33, which sets standards for the evaluation of advisory committees by the agencies for which they function, and under Health and Safety Code, sec.12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health. The new section will affect Health and Safety Code, Chapter 42. sec.61.15. Kidney Health Care Advisory Committee. (a) The committee. An advisory committee shall be appointed under and governed by this section. (1) The name of the committee shall be the Kidney Health Care Advisory Committee. (2) The Texas Health and Safety Code, sec.11. 016, allows the Texas Board of Health to establish the committee. (b) Applicable law. The committee is subject to Texas Civil Statutes, Article 6252-33, relating to state agency advisory committees. (c) Purpose. The purpose of the committee is to provide advice to the board in the area of end-stage renal disease and to provide advice on current state-of- the-art treatment modalities, medication therapies, and prioritization of the needs of end-stage renal disease patients in Texas. (d) Tasks. (1) The committee shall advise the board concerning rules relating to the Kidney Health Care Division. (2) The committee shall: (A) make recommendations regarding benefits to be provided by the Kidney Health Care Division; (B) provide advice on the coordination of departmental and kidney health care activities with activities of other agencies and organizations involved in end- stage renal disease; and (C) secure the cooperation and active participation of agencies and organizations that may contribute to the effectiveness of the Kidney Health Care Division. (3) The committee shall carry out any other tasks given to the committee by the board. (e) Review and duration. By March 1, 1999, the board will initiate and complete a review of the committee to determine whether the committee should be continued, consolidated with another committee, or abolished. If the committee is not continued or consolidated, the committee shall be abolished on that date. (f) Composition. The committee shall be composed of nine members appointed by the board. The composition of the committee shall include two consumer representatives and seven nonconsumer representatives. (g) Terms of office. The term of office of each member shall be six years. (1) Members shall be appointed for staggered terms so that the terms of three members will expire on December 31st of each even-numbered year. (2) If a vacancy occurs, a person shall be appointed to serve the unexpired portion of that term. (h) Officers. The committee shall elect a presiding officer and an assistant presiding officer at its first meeting after August 31st of each year. (1) Each officer shall serve until the next regular election of officers. (2) The presiding officer shall preside at all committee meetings at which he or she is in attendance, call meetings in accordance with this section, appoint subcommittees of the committee as necessary, and cause proper reports to be made to the board. The presiding officer may serve as an ex-officio member of any subcommittee of the committee. (3) The assistant presiding officer shall perform the duties of the presiding officer in case of the absence or disability of the presiding officer. In case the office of presiding officer becomes vacant, the assistant presiding officer will serve until a successor is elected to complete the unexpired portion of the term of the office of presiding officer. (4) A vacancy which occurs in the offices of presiding officer or assistant presiding officer may be filled at the next committee meeting. (5) A member shall serve no more than two consecutive terms as presiding officer and/or assistant presiding officer. (6) The committee may reference its officers by other terms, such as chairperson and vice-chairperson. (i) Meetings. The committee shall meet only as necessary to conduct committee business. (1) A meeting may be called by agreement of department staff and either the presiding officer or at least three members of the committee. (2) Meeting arrangements shall be made by department staff. Department staff shall contact committee members to determine availability for a meeting date and place. (3) Each meeting of the committee shall be announced and conducted in accordance with the Open Meetings Act, Texas Government Code, Chapter 551. (4) Each member of the committee shall be informed of a committee meeting at least five working days before the meeting. (5) A simple majority of the members of the committee shall constitute a quorum for the purpose of transacting official business. (6) The committee is authorized to transact official business only when in a legally constituted meeting with quorum present. (7) The agenda for each committee meeting shall include an item entitled public comment under which any person will be allowed to address the committee on matters relating to committee business. The presiding officer may establish procedures for public comment, including a time limit on each comment. (j) Attendance. Members shall attend committee meetings as scheduled. Members shall attend meetings of subcommittees to which the member is assigned. (1) A member shall notify the presiding officer or appropriate department staff if he or she is unable to attend a scheduled meeting. (2) It is grounds for removal from the committee if a member cannot discharge the member's duties for a substantial part of the term for which the member is appointed because of illness or disability, is absent from more than half of the committee and subcommittee meetings during a calendar year, or is absent from at least three consecutive committee meetings. (3) The validity of an action of the committee is not affected by the fact that it is taken when a ground for removal of a member exists. (4) The attendance records of the members shall be reported to the board. The report shall include attendance at committee and subcommittee meetings. (k) Staff. Staff support for the committee shall be provided by the department. (l) Procedures. Roberts Rules of Order, Newly Revised, shall be the basis of parliamentary decisions except where otherwise provided by law or rule. (1) Any action taken by the committee must be approved by a majority vote of the members present once quorum is established. (2) Each member shall have one vote. (3) A member may not authorize another individual to represent the member by proxy. (4) The committee shall make decisions in the discharge of its duties without discrimination based on any person's race, creed, gender, religion, national origin, age, physical condition, or economic status. (5) Minutes of each committee meeting shall be taken by department staff. (A) A draft of the minutes approved by the presiding officer shall be provided to the board and each member of the committee within 30 days of each meeting. (B) After approval by the committee, the minutes shall be signed by the presiding officer. (m) Subcommittees. The committee may establish subcommittees as necessary to assist the committee in carrying out its duties. (1) The presiding officer shall appoint members of the committee to serve on subcommittees and to act as subcommittee chairpersons. The presiding officer may also appoint nonmembers of the committee to serve on subcommittees. (2) Subcommittees shall meet when called by the subcommittee chairperson or when so directed by the committee. (3) A subcommittee chairperson shall make regular reports to the advisory committee at each committee meeting or in interim written reports as needed. The reports shall include an executive summary or minutes of each subcommittee meeting. (n) Statement by members. The board, the department, and the committee shall not be bound in anyway by any statement or action on the part of any committee member except when a statement or action is in pursuit of specific instructions from the board, department, or committee. (o) Reports to board. The committee shall file an annual written report with the board. (1) The report shall list the meeting dates of the committee and any subcommittees, the attendance records of its members, a brief description of actions taken by the committee, a description of how the committee has accomplished the tasks given to the committee by the board, the status of any rules which were recommended by the committee to the board, anticipated activities of the committee for the next year, and any amendments to this section requested by the committee. (2) The report shall identify the costs related to the committee's existence, including the cost of agency staff time spent in support of the committee's activities. (3) The report shall cover the meetings and activities in the immediate preceding 12 months and shall be filed with the board each September. It shall be signed by the presiding officer and appropriate department staff. (p) Reimbursement for expenses. In accordance with the requirements set forth in Texas Civil Statutes, Article 6252-33, a committee member may receive reimbursement for the member's expenses incurred for each day the member engages in official committee business. (1) No compensatory per diem shall be paid to committee members unless required by law. (2) A committee member who is an employee of a state agency, other than the department, may not receive reimbursement for expenses from the department. (3) A nonmember of the committee who is appointed to serve on a subcommittee may not receive reimbursement for expenses from the department. (4) Each member who is to be reimbursed for expenses shall submit to staff the member's receipts for expenses and any required official forms no later than 14 days after each committee meeting. (5) Requests for reimbursement of expenses shall be made on official state travel vouchers prepared by department staff. 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 November 21, 1994. TRD-9451203 Susan K. Steeg General Counsel Texas Department of Health Effective date: December 12, 1994 Proposal publication date: September 6, 1994 For further information, please call: (512) 458-7236 Part II. Texas Department of Mental Health and Mental Retardation Chapter 405. Client (Patient) Care Subchapter L. Human Immunodeficiency Virus (HIV) Prevention, Testing, and Treatment 25 TAC sec.sec.405.281-405.297 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.sec.405.281-405.297, concerning human immunodeficiency virus (HIV) prevention, testing, and treatment. Sections 405.283-405.288 and 405.290-405. 296 are adopted with changes to the proposed text as published in the August 30, 1994, issue of the Texas Register (19 TexReg 6822). Sections 405. 281, 405.282, 405.289, and 405.297 are adopted without changes. The new subchapter describes the longstanding policies of the department governing testing and treatment for HIV, including confidentiality, prevention, and education policies. A number of clarifications have been made in response to staff and public comment. In sec.405.283, definitions of "high risk behaviors," "sexual contact, " and "universal precautions" have been added. Section 405.284(a) has been revised to clarify that the transmission of HIV may occur during injected drug use and/or from transfusion or infusion of infected blood or blood products, during birth (delivery), and through both the ingestion of breast milk and the process of breastfeeding. Language concerning the transmission of HIV in blood products in the United States and in other countries has been deleted. In the same subsection, language concerning Occupational Safety and Health Administration (OSHA) standards has been deleted as an inaccurate reference. Subsection (d)(1) of the same section, which mandated that education be provided to all clients, has been revised on adoption to state that education must be routinely offered to clients, a revision consistent with the Texas Health and Safety Code. The section is also revised to provide that if education is not deemed appropriate or necessary for a client, that the reasons be documented in the social assessment portion of the client's medical record. Subsection (d)(2) of the section has been revised on adoption to delete the term "act responsibly" and substitute language that more fully describes what constitutes irresponsible behavior for purposes of this subchapter. Section 405.285(a) is revised on adoption to clarify the entities under the Texas Health and Safety Code who must provide education to clients under the provisions of this subchapter. Subsection (b) of the same section is revised to modify the requirement that all employees receive four hours of training; instead, employees must be trained using a curriculum approved by the director of the HIV Prevention Program and presented by instructors trained and certified by HIV Prevention Program staff. The curriculum is not required to conform to minimum time requirements. A minor grammatical change is made to sec.405.286(d), and references to the Health and Safety Code in subsection (f) and (3) are corrected. Subsection (e) (1) and (2) of the same section is revised to emphasize that voluntary testing is to be made available to all clients at state facilities upon request. Section 405.286(f) has been revised for clarity and to emphasize the importance of seeking informed consent. The language in subsection (g) concerning risk of seroconversion to healthcare workers has been modified to more accurately reflect current medical opinion. Section 405.287(b) has been revised to clarify that "antibody testing" is "HIV antibody testing." The Texas Health and Safety Code citation in sec.405.288(a) has been corrected. In sec.405.290, reporting requirements have been revised to more closely reflect the requirements set forth in the Texas Health and Safety Code. Section 405.291(b) has been revised to include the requirement that the exposure of a client to blood and body substances must be reported to the client's attending physician. Subsection (d) of the same section is revised to indicate that Zidovudine may be initiated for up to three hours following accidental exposure to HIV. Section 405.292(1) has been fully revised to indicate that all limitations on the activity of HIV-infected patients should follow the same requirements for limitations on activities for other clients, as reflected in a number of existing department rules, which are cited. It is clarified that the justification for limitation is danger to self or others, not risk potential. For this purpose, three rules not previously cited are added: Chapter 402, Subchapter C of this title, relating to Transfer to Vernon Maximum Security Unit; Chapter 404, Subchapter E of this title, relating Rights of Clients Receiving Mental Health Services; and Chapter 405, Subchapter Y of this title, relating to Client Rights-Mental Retardation Facilities. A correction to a Texas Health and Safety Code citation is made in sec.405. 293(c) and reference to the Americans with Disabilities Act is added. Subsection (d) has been revised to clarify that under law an employee who is an exposure source will be required to take an HIV test. Section 405.294(d) is created by moving the last sentence of subsection (c) to create the new subsection. Paragraph numeration is corrected in sec.405.295. Section 405.296 has been revised to add references. Exhibit B has been revised to more accurately reflect the educational and experiential qualifications of HIV Prevention Program faculty. Exhibit C has been extensively revised to more fully address issues of consent. The algorithm describing actions to be taken following significant exposure of an employee or client has been revised. A public hearing was held on September 7, 1994, at the Central Office of the Texas Department of Mental Health and Mental Retardation. Public testimony was given by four individuals: Melanie Green, Susan Medlin, and Cynthia Hopkins, for Texas Mental Health Consumers, Austin; and Mary Dees, Austin. Written comment concerning the subchapter was received from The Pavilion, Amarillo; Karen King, Austin; Permian Basin Community Centers, Midland; and MHMR Services for the Concho Valley, San Angelo. One commenter called the new subchapter a "hasty reaction" and asked the department to establish a broad-based group of community AIDS experts to assist in the formulation of policies that will anticipate an AIDS crisis in state hospitals and provide long-term solutions. The department responds that the proposed rule has been department policy since prior to April 1991, when it was developed after careful study by an interdisciplinary committee that included HIV experts. The policy was approved as competent and comprehensive by the Texas Department of Health (TDH) in 1989 and was reviewed and found acceptable by TDH this year. Three commenters called for closer coordination of the rule with existing rules governing related subjects, e.g., rules governing restraint and seclusion in mental health facilities. One commenter noted that the special limitations on client activities set out in the rule are sufficiently at variance from other rules to be a clear indication that an individual is on HIV-related precautions. The department responds that sec.405.292 of the subchapter, concerning patient limitations, has been revised to emphasize that existing rules govern decisionmaking about interventions and limitations on activities for patients with HIV/AIDS. One commenter noted that without additional security measures, a policy that prohibits sexual activity between patients or between patients and the public is impossible to enforce. The department acknowledges that enforcement will be difficult. One commenter observed the special difficulty in enforcing a policy that does not provide for the human sexuality of patients who may spend years in state facilities. The department acknowledges the difficulty. The commenter noted the apparent incongruity of prohibiting sexual behavior and making condoms available to patients. Another commenter noted that even if condoms are available, the policy set forth in the rule suggests that anyone requesting condoms will be deemed to be engaging in a risk behavior and therefore subject to special limitations on activities. The department responds that condoms are not provided for use on campus but for educational purposes and for use when the patient is on furlough. Language in sec.405.292 has been revised to clarify that limitations on activities are not imposed for risk potential but for demonstrated danger to self or others. One commenter noted that for mentally ill patients, often the issue is not one of competency, i.e., that patients who choose to have sexual relations do not necessarily lack capacity to make that decision. The department concurs. Another commenter urged the department to look at the situation realistically, set guidelines and obtainable procedures that will protect both the safety of patients as well as their dignity and civil rights. The department concurs with the commenter. The rules it is adopting are consistent with the guidelines of the Texas Department Health and federal government, and current psychiatric and medical practice. It provides education designed to further the purposes the commenter urges. Throughout the rule, several commenters had questions related to the applicability of the educational requirements of the subchapter to clients and employees in community programs. The department responds that clients in residential and inpatient community-based programs should receive HIV education. HIV education should also be available to outpatients if they request it, or if their treatment program includes modules on health/daily living skills. The TDMHMR HIV Prevention Program staff offer training for community and outpatient settings as well as facility settings. Employees in all programs and settings are required to have basic HIV training. Two commenters noted that "sexual contact" is an ambiguous term. The department responds that it is defined in sec.405.292. Regarding sec.405.284(b), one commenter questioned the extent to which a psychiatric hospital is responsible to provide appropriate medical assessment and treatment for persons with confirmed diagnoses of HIV infection or AIDS. The department responds that such patients should be provided the same care as others, i.e., provide treatment to the extent feasible and provide referral to other caregivers for services that cannot be provided. Concerning sec.405.284(c)(2), a commenter cited a number of recent studies in which caregivers frequently and consistently revealed considerable feelings of aversion to HIV/AIDS, the patients, their lifestyle, and caregiving. The department responds that the commenter's research amply demonstrates the need for HIV education, i.e., that appropriate treatment of individuals with reactive HIV serostatus must be facilitated by education so that serostatus is not in itself an issue for treatment staff. Concerning sec.405.284(d)(1) and sec.405.285(b), two commenters expressed concern that the HIV Prevention Program faculty lack experience in the field of mental health. The department responds that Exhibit B has been revised to fully describe the background of the faculty, who have considerable experience in the field of mental health as well as substance abuse and developmental disabilities. Concerning the same paragraph, several commenters questioned the meaning of the requirement that "all" clients be provided HIV education. The department responds that this paragraph has been revised to take into account the fact that HIV education may be inappropriate or unnecessary for clients who lack capacity to understand the information. The paragraph has also been revised to more closely conform to the Texas Health and Safety Code, which requires education to be routinely offered (not provided). If HIV education is deemed inappropriate or unnecessary, staff must document in the social assessment the reasons for this determination. Concerning sec.405.284(d)(2), three commenters questioned the meaning of the term "high risk behaviors" and asked who makes the determination that high risk behaviors are evident. The department responds that a definition of "high risk behaviors" has been added to sec.405.283 of the new subchapter, based on the definition used by the Centers for Disease Control: (1) unprotected vaginal, anal, or oral intercourse (sex); and (2) sharing of needles ("works") for injecting drug use. The individual treating physician, as well as other members of the treatment team, make the determination. Also with reference to the same paragraph, a commenter noted that it is unrealistic to expect all sexual contact to be curtailed. The department responds that the prohibition applies only to patients who receive services in residential or inpatient programs, and that such a prohibition is consistent with community standards for other therapeutic environments and inpatient or residential healthcare programs in Texas. With regard to sec.405.285(a), a commenter noted that staff turnover would require the HIV counselor certification program to be offered one or more times annually. The department responds that training is available on request. Concerning the same section, a commenter cited a number of studies that indicate that people with mental illness are not able to understand HIV/AIDS education unless it is specifically tailored to their needs. The department concurs. The Texas Health and Safety Code directs, and the TDMHMR HIV Prevention Program curricula places, particular emphasis on meeting the special needs of people with mental illness and/or mental retardation. With reference to sec.405.285(b), several commenters posed a number of questions concerning HIV education, including the length of the basic course (four hours), who can provide the training, and requirements for updates to the basic training as well as documentation requirements. The department has revised the subsection to modify the requirement for four hours of training for employees and instead requires that the basic curriculum be approved by the director of the HIV Prevention Program and that the training be provided by instructors trained and certified by HIV program instructors. The basic course is a one-time requirement for employees. Instructors are recertified annually. The number of instructors for any given facility will vary depending on the size of the facility and other local considerations; there are no ratios or minimum requirements concerning numbers of instructors. Training of instructors is provided, on request, through the HIV Prevention Program office. The training is to be documented in the employee training record at the facility. Additional comments were received regarding the need for different program models depending on the types of clients served. The department responds that advanced curricula which meet this need are described in the HIV Prevention Program information (Exhibit B) and are available upon request. Concerning the same subsection, two commenters questioned why counselors must be "professional" staff. The department responds that the term "professional" is used broadly and is intended to denote a staff person who is otherwise qualified by education and experience to provide other types of counseling and/or education. Regarding sec.405.286(e)(1), a commenter questioned what special tools would be used to screen clients for HIV risk, and would these tools become a part of the client's medical record. The department responds that a special tool is not used. The screening tool is the regular medical history and social assessment, both of which are part of the client's medical record. Concerning the same paragraph, three commenters suggested that it is impossible to know or predict who may have HIV/AIDS. The commenters suggested that rather than offering HIV/AIDS testing to newly admitted patients on the selective basis of risk factors, the testing should be routinely offered to all clients. The department concurs and language has been added. With reference to sec.405.286(e)(3)(A), a commenter noted that in some community locations, a physician may not be the admitting professional. The department responds that the professional responsible for admitting the client is the professional responsible for making the risk assessment based on the history provided by the client or on the records which accompany the client. Regarding sec.405.286(e)(3)(A)(i)-(v), which describes circumstances under which limitations may be placed on client activity, a commenter asked the department to describe the "behavioral characteristics" of an individual considered to have significant potential for transmitting HIV/AIDS. The department responds that clauses (i)-(v) have been deleted and reliance is instead placed on the concept of danger to self or others. In this context, the behavioral characteristic that would signify dangerousness to self or others is aggressive or reckless behavior aimed at sexual contact as defined in the rule. A commenter stated the belief that guardians should be made aware of the results of HIV testing. The department responds that it must comply with laws governing confidentiality of HIV test results. The Texas Health and Safety Code, sec.81.103(d), does not provide for the notification of guardians, unless the guardian is the person legally authorized to consent to the test on the person's (client's) behalf. With regard to sec.405.286(e)(3), which describes involuntary screening, a commenter questioned whether this is the only circumstance in which a general consent form is adequate. The department responds the law provides, and general community standards allow, for HIV testing under the general consent form at any time during the client's stay. However, TDMHMR recommends that every attempt be made to obtain consent specific to the procedure. Concerning sec.405.286(f)(1)(A), a commenter stated that if all clients are considered potentially infected, i.e., universal precautions are employed, then the test result would not materially alter the medical or social management of the patient. The department responds that the test result would clearly alter the medical management of the patient because additional medical intervention would be required and that some medical interventions might necessitate modification of social management (e.g., prevention or treatment of opportunistic infections). Regarding sec.405.287(a), a commenter queried whether counseling must be provided at community centers or whether the client can be referred for counseling. Another commenter indicated the belief that follow-up counseling is not available locally through other sources, i.e., the Texas Department of Health. The department responds that referral is appropriate and that the entity conducting the testing is required to provide counseling as well, including the Texas Department of Health. With reference to sec.405.288, a commenter questioned how treatment issues for an HIV-infected individual can be addressed without violating their confidentiality, and how employees' knowledge of HIV serostatus can be monitored. The department responds that employees involved in the medical care of the client have a need to know and would have access to that information, just as they would have access to other information contained in the client's medical record. It is the responsibility of the facility to ensure that employees are aware of and observe the legal and ethical mandates related to confidentiality of medical information. Concerning sec.405.292, a commenter noted that behavioral and medical considerations by an attending physician may not be reasonable for people in community placements for which physician involvement is not always possible. The department responds that the requirement applies only to individuals in residential or inpatient programs and therefore should be possible to meet. Concerning the hierarchy of limitations on client activities discussed in the same section, a commenter suggested that the infection control practitioner and client rights officer be routinely included in the interdisciplinary team (IDT) determinations concerning HIV-infected individuals. The department responds that facilities are empowered to configure IDTs to meet the needs of the individual client. Certainly the staff the commenter suggests would be appropriate members of an IDT for an HIV-infected individual. Two commenters suggested that an individual with HIV/AIDS who recklessly endangers others should be considered for determination as manifestly dangerous and as appropriate confined at the Vernon Maximum Security Unit. The department responds that it has added the rules governing determination of manifest dangerousness and transfer to Vernon to the list of rules to be followed in sec.405.292, concerning limitation of client activity. Further, rules governing transfer to the Vernon facility are currently being revised to include criteria for the determination of dangerousness, e.g., predatory aggression, impulsivity, repetitive antisocial acts, etc. In reference to sec.405.293(b), a commenter noted that the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) provides that staff may request not to participate in an aspect of patient care where there is perceived conflict with the staff member's cultural values, ethics, or religious beliefs. The department responds that this standard was developed to address reproduction, e.g., sterilization and abortion-related healthcare issues, not serving the healthcare needs of persons with infectious diseases. Regarding sec.405.293(d), a commenter requested clarification concerning mandatory HIV testing for employees with significant exposure. The department has revised the language to clearly indicate that the mandatory testing pertains only in cases in the which the employee is the exposure source. Provisions related to Worker's Compensation are also clarified. Concerning sec.405.295, a commenter requested that the section be rewritten to apply to small centers and outpatient operations. The department responds that the rule does not apply to outpatient operations. With reference to Exhibit B, a commenter noted that it appears that the training material comes exclusively from the Centers for Disease Control and suggests a broader-based curriculum, with more models, might be more effective. The department responds that the curricula do not derive exclusively from CDC but are consistent with CDC guidelines. The new sections are adopted under the Texas Health and Safety Code, Title 7, sec.532.015(a), which provides the Texas Board of Mental Health and Mental Retardation with broad rulemaking powers. sec.405.283. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise: AIDS-Acquired immune deficiency syndrome as defined by the National Centers for Disease Control and Prevention of the U.S. Public Health Service. Facility-The campus- and community-based residential programs of a state hospital, state school, or state center of the Texas Department of Mental Health and Mental Retardation. High risk behaviors -As defined by the National Centers for Disease Control and Prevention (CDC), behaviors involving: (A) unprotected vaginal, anal, or oral intercourse (sex); or (B) sharing of needles ("works") for injecting drug use. HIV-Human immunodeficiency virus. Sexual contact -Vaginal, oral, or anal sexual intercourse. Test results-Any statement that indicates that an identifiable individual has or has not been tested for AIDS or HIV infection, antibodies to HIV, or infection with any other probable causative agent of AIDS, including a statement or assertion that the individual is positive, negative, at risk, or has or does not have a certain level of antigen or antibody. Universal precautions -An approach to infection control in which all human blood and certain body fluids are treated as if known to be infectious for HIV, HBV, and other bloodborne pathogens. sec.405.284. Policy Overview. (a) Background. The presence of demonstrated antibody to the human immunodeficiency virus (HIV) is considered an indication that HIV infection is present and that there is potential for transmission of the virus. Acquired immunodeficiency syndrome (AIDS) is the last stage of infection with the human immunodeficiency virus. This virus infects the white blood cell lymphocytes and other specific cells in blood and organ tissue, reducing the body's ability to ward off disease. The body substances containing the greatest amount of the virus are blood, semen, and vaginal secretions. All medical evidence indicates that HIV is transmitted through sexual contact (vaginal, anal, or oral) with a person who is already infected with HIV; through the exchange of infected blood such as through sharing of needles or syringes during injected drug use, and/or from transfusion or infusion of infected blood or blood products; and/or from mother to baby during pregnancy, birth (delivery), or through breast milk/breastfeeding. HIV infection is not transmitted through ordinary social, occupational, or household contacts of a non-sexual nature. The exercise of universal precautions and other infection control standards as mandated by the department and by the Texas Health and Safety Code serves to reduce the risk of transmission of HIV infection as well as other communicable diseases. (b) Admission of persons known to be HIV infected. Persons with mental illness or mental retardation who have HIV infection will be admitted to TDMHMR facilities in accordance with established departmental admission criteria. On admission of a person with a confirmed diagnosis of HIV infection or acquired immunodeficiency syndrome, it is the responsibility of the department to provide appropriate medical assessment and treatment, including treatment regimens acknowledged to prevent opportunistic infections as described in Exhibit A of sec.405.295 of this title (relating to Exhibits). (c) Confidentiality. All TDMHMR clients are entitled to privacy and preservation of their personal dignity. It is the responsibility of the department to promote confidentiality for the HIV-infected client without compromising the safety of others by ensuring that proper precautions are clearly understood without discriminatory labeling. (1) Because of gaps in public education and consequently, misguided attempts to protect the public which arise from fear of the unknown, it is of special importance that information regarding testing for HIV antibodies and the results of such testing remain confidential within the narrow limits defined by the Texas Communicable Disease Prevention and Control Act. Written reference to the client's medical diagnosis belongs only in the client's medical records. (2) Appropriate treatment of individuals with reactive HIV serostatus can only be guaranteed when that status is not in itself an issue for the treatment staff. The penalties for unauthorized disclosure of confidential information provided in the Texas Health and Safety Code, sec.81.103, attest to the seriousness with which the issue of confidentiality must be approached. In addition, federal civil rights laws, including the Rehabilitation Act of 1973, sec.504, and the Americans with Disabilities Act of 1990, protect persons with AIDS or AIDS-related conditions from discrimination by any program or activity which receives federal financial assistance. (d) High risk behavior. Although the department is supportive of efforts to provide a normalized environment which respects the individual rights of clients-including the right to express one's sexuality-the serious consequences of behavior which could result in an increased risk of transmission of HIV infection cannot be ignored. (1) Specific HIV education, including risk reduction, tailored to each client's level of understanding, must be routinely made available to all clients who are capable of understanding the information. The decision that HIV education is either unnecessary or inappropriate, and the reasons for this determination, must be documented in the client's social assessment. (2) High risk behaviors, including sexual contact, must be curtailed while clients reside in TDMHMR facilities. Persons whose behavior is considered to place them at high risk for contracting or transmitting HIV infection and who cannot or will not change behaviors to reduce or eliminate that risk shall have individual treatment plans developed to require close monitoring to prevent the endangerment of others. sec.405.285. Education. (a) Education about the transmission of HIV infection and AIDS is the primary defense available to curtail the spread of the disease and its devastating consequences. The Texas Health and Safety Code, sec.85.010, sec.85.113, and sec.85.114 mandate HIV/AIDS education for employees and clients of TDMHMR and any entity that contracts with or is funded or licensed by TDMHMR. The act further requires that educational programs be tailored to the specific needs of target audiences. The TDMHMR HIV Prevention Program, through the Office of Medical Support Services, provides an array of educational programs onsite at facilities to ensure that the requirements of law are met. Program educators have been certified as HIV/AIDS instructors by the National Institute on Drug Abuse and the Texas Department of Health. A description of courses offered and target audiences is found in Exhibit B of sec.405.295 of this title (relating to Exhibits). All advanced courses have been approved for continuing education credit. (b) The superintendent/director of each facility must, at a minimum, ensure that all employees receive a basic education in HIV/AIDS using a curriculum approved by the TDMHMR HIV Prevention Program director and presented by instructors trained and certified by HIV Prevention Program staff. Professional staff in numbers sufficient to meet the HIV counseling needs of individual facilities must also attend the TDMHMR four-day counselor training course and be certified as HIV counselors. It is essential that programming in health, normalization, and life management skills also provides specific and accurate information appropriate to the client group; therefore specific curricula are offered to assist staff in achieving that objective. sec.405.286. Screening for HIV Antibody. (a) Laboratory services. An interagency contract has been negotiated between Central Office and the Texas Department of Health (TDH) for serologic screening and confirmatory testing. A statement of current charges for initial screening and for confirmatory testing (Western Blot test) is available from the TDMHMR Office of Medical Support Services. All testing is to be consistent with the guidelines set forth in this subchapter. (b) Confirmatory testing. A test for HIV antibody is not reactive unless the preliminary screening test, the ELISA, is confirmed by the Western Blot test. The TDH HIV test protocol provides Western Blot testing on all specimens which are reactive by ELISA methodology. (c) Epidemiologic evaluation. Persons with a reactive Western Blot test, even though considered to be HIV infected, must be evaluated epidemiologically to determine if they pose a significant risk for transmitting the infection. (d) Counseling. Consistent with the requirements of the Texas Health and Safety Code, sec.sec.81.109, 85.087, and 85. 116, and the philosophy of this department, appropriate pre- and post-test counseling must be provided to all individuals who are to be tested for the HIV antibody. Counselors must meet the requirements in sec.405.287 of this title (relating to Counseling). (e) Screening. (1) Routine screening. Routine screening of clients, including new admissions, is not to be performed. (2) Voluntary screening. All persons admitted should be assessed for their risk for having become HIV infected and, as appropriate, should be encouraged to be tested for HIV antibody in order for early treatment interventions to be offered. Voluntary HIV antibody testing is to be made available to all clients upon request. (3) Other screening. (A) In cases other than voluntary screening, screening may be performed only when, in the judgment of the attending or admitting physician, the client: (i) clinically exhibits signs which are consistent with the Centers for Disease Control (CDC) case definition of AIDS or HIV-related illness; or (ii) is considered to have significant potential, because of behavioral characteristics, to transmit the infection; or (iii) has been potentially exposed to HIV infection; or (iv) has previously been diagnosed as having HIV infection, or AIDS, and confirmation is required (serologic tests have been run elsewhere); or (v) is documented to be the source of a significant exposure, as described in sec.405.291(a) of this title (relating to Management of Accidental Exposure to Blood/Body Substances), of another person, and then in accordance with established infection control protocols. (B) The physician requiring the screening will document the medical/behavioral necessity for the screen in the physician's order section or progress notes section of the client's medical record. (f) Informed consent. It is strongly recommended that informed consent be obtained, if possible, individuals who are to be tested. (1) Pursuant to the Texas Health and Safety Code, sec.81.102, testing may be conducted without consent for residents and clients of TDMHMR residential facilities if: (A) the test result would change the medical or social management of the person tested or others who are associated with that individual; and (B) the test is conducted in accordance with this subchapter and any other guidelines approved by the department. (2) Pursuant to the Texas Health and Safety Code, sec.81.102 and sec.81.107, testing may be conducted without consent in order to manage accidental exposure to blood or other body fluids, but only if the test is conducted under written infectious disease control protocols adopted by the department in Exhibit C of sec.405.295 of this title (relating to Exhibits). (3) Pursuant to the Texas Health and Safety Code, sec.81. 106, a person who has signed a general consent form for the performance of medical tests or procedures is not required to also sign a specific consent form relating to medical tests or procedures to determine HIV infection, antibodies to HIV, or infection with any other probable causative agent of AIDS that will be performed during the time the general consent is in effect. Except as otherwise provided by the Texas Health and Safety Code, sec.81.106, the results of a test conducted under the authorization of the general consent form shall be used only for diagnostic or other purposes directly related to medical treatment. (g) Employee screening. The risk of acquiring or transmitting HIV infection is related to the degree of percutaneous contact or mucous membrane contamination with blood, semen, or vaginal secretions containing the HIV. Studies have shown that there is a very low risk of transmission and seroconversion in healthcare workers who deal with persons with HIV infection, as long as universal precautions are utilized and there is no sexual contact with the HIV-infected individual. Further, studies have demonstrated that there is a low risk of seroconversion for HIV among healthcare workers who sustained needlesticks with no other risk factors present. (1) Routine screening of employees or prospective employees is not to be performed. (2) Procedures for management of employee exposure to HIV are set out in sec.405.291 of this title (relating to Management of Accidental Exposure to Blood/Body Substances) and in Exhibit C of sec.405.295 of this title (relating to Exhibits). sec.405.287. Counseling. (a) Each individual to be screened shall receive pre- and post-test counseling. For individuals who are likely to be discharged from the facility prior to receipt of test results, consent should be obtained for referral to the local public health department HIV/STD division for notification and follow-up if the test is reactive. Such referrals are, by law, handled by the health department in a totally confidential manner. (b) Pursuant to the Texas Health and Safety Code, sec.85.087, each facility must have professional staff who have been trained in the full HIV/AIDS Prevention Training Program Curriculum for HIV Antibody Test Counselors. Lists of individuals who have successfully completed the training are submitted to the state registry as required by the Texas health and Safety Code, sec.85.087, and are to be maintained by the facility infection control practitioner and staff development office. Only those individuals shall provide HIV antibody test counseling to clients or staff. sec.405.288. Confidentiality of Test Results. (a) The results of HIV tests are confidential by law. Reports, records, and information may not be released or made public except as provided by the Texas Health and Safety Code, sec.sec.81.103, 81.104, and sec.85.115, which sets forth strict penalties for violations. Requests from insurance companies, the Social Security Disability Determination Division of the Texas Rehabilitation Commission, or other agencies or entities must be accompanied by the appropriate signed release form authorizing the release of HIV-specific information, consistent with the policies and procedures of the Association of American Medical Records Technicians. (b) Test results will be reported by the Texas Department of Health to the Office of Medical Support Services at Central Office where they will be reviewed by the TDMHMR consultant in infectious diseases. A hard copy of the report will concurrently be mailed by the Office of Medical Support Services, in accordance with facility policy, to the chief medical technologist or facility infection control practitioner who will be responsible for notifying the physician who ordered the test. The physician shall be responsible for ensuring that post-test counseling by a trained counselor is promptly provided when the client is informed of the test result in accordance with sec.405.287 of this title (relating to Counseling). Facilities which have no laboratories have the option of having reports mailed to the physician ordering the test or to the facility infection control practitioner. (c) The terms "AIDS," "ARC," or "HIV" shall not be placed on the outside of any client records. Neither shall lists be maintained to identify these clients. Because all clients are to be treated with universal precautions, signs indicating blood/body fluid precautions shall not be affixed to any surface. (d) All laboratory specimens shall be considered infectious and shall be transported in specimen transport bags, but without any labels which identify the HIV status. (No indication of HIV status is to appear on request slips or specimens.) sec.405.290. Required Reporting of Test Results. Human immunodeficiency virus infection that is confirmed by laboratory testing while an individual is receiving inpatient services from a TDMHMR facility is to be reported by the facility infection control practitioner to the Texas Department of Health in accordance with sec. sec.97.131-97.144 of this title (relating to Sexually Transmitted Diseases) including Acquired Immune Deficiency Syndrome (AIDS) and Human Immunodeficiency Virus (HIV). Reporting forms and instructions for reporting can be obtained from the local, regional, or state health departments. sec.405.291. Management of Exposure to Blood/Body Substances. (a) Management of accidental exposure to blood/body substance should be consistent with the Public Health Services "Statement on Management of Occupational Exposure to Human Immunodeficiency Virus, including Considerations Regarding Zidovudine Postexposure Use," provided in Exhibit D of the sec.405.295 of this title (relating to Exhibits). Accidental "exposure" in the TDMHMR setting is defined as a percutaneous injury (e.g., needlestick or other penetrating puncture of the skin with a used needle or other item) or contamination of a mucous membrane (splatter/aerosols into the eyes, nose, or mouth) or significant contamination of an open wound or non-intact skin with blood, semen, vaginal secretions, or other body substances which contain visible blood. (b) All exposures to blood and body substances which meet the criteria in subsection (a) of this section must be reported promptly (within one hour) to the client's physician or employee's supervisor and, depending on facility policy, to the employee health officer (physician or nurse) and the infection control practitioner (or designee). (c) Under the conditions defined in subsection (a) of this section, appropriate counseling shall be given by trained HIV antibody test counselors and shall include information on the potential risk of infection and specific measure to prevent transmission. Serologic testing for HIV antibody and other bloodborne pathogens should be performed according to the protocol provided in Exhibit C of sec.405.295 of this title (relating to Exhibits). (d) Although there is no firm data that it is protective, due to the low toxicity that has been found using Zidovudine (ZDV) in healthy persons and some experimental animal model experience with other retroviruses where ZDV, given before or immediately after significant exposure decreased the rates of infection or seroconversion, ZDV should be available for immediate administration (within one hour of exposure and no longer than three hours after exposure) and should be offered to persons who sustain significant accidental exposure to HIV until testing can be completed. The specific protocol for offering ZDV is provided in Exhibit C of sec.405.295 of this title (relating to Exhibits). sec.405.292. Limitation of Client Activity. The behavioral and medical considerations of each client will be evaluated by the attending physician with appropriate consultation, and only those restrictions recognized to be necessary relative to containment of infection in each particular case will be imposed. (1) Individual cases shall be thoroughly reviewed by the physician in consultation with appropriate members of the interdisciplinary team in accordance with the Texas Health and Safety Code restrictions regarding confidentiality of the information. The reviews will be at intervals specified in the client's treatment plan or when there are significant changes in the client's behaviors which might affect the client's potential for infecting other clients or staff. If danger to self or others is established, the least restrictive intervention shall be implemented by the interdisciplinary treatment team to ensure the safety of other clients and staff. Restrictions shall be justified on the basis of the client's behavior (e.g., aggressive sexual behavior) and shall be ordered, implemented, and periodically reviewed in keeping with the following subchapters, as appropriate: (A) Chapter 402, Subchapter C of this title, relating to Transfer to Vernon Maximum Security Unit; (B) Chapter 404, Subchapter E of this title, relating to Rights of Patients Receiving Mental Health Services; (C) Chapter 405, Subchapter F of this title, relating to Restraint and Seclusion in Mental Health Facilities; (D) Chapter 405, Subchapter G of this title, relating to Behavior Therapy Programs; (E) Chapter 405, Subchapter H of this title, relating to Behavior Management- Facilities Serving Persons with Mental Retardation; and (F) Chapter 405, Subchapter Y of this title, relating to Client Rights-Mental Retardation Facilities. (2) Clients who are too ill medically to benefit from TDMHMR facility services shall be expeditiously referred to an appropriate medical facility. sec.405.293. Personnel Issues. (a) All employees, as indicated by their job descriptions, are expected to perform their duties, including providing care for clients with all communicable diseases, including HIV infection and AIDS. (b) Employees who refuse to work with clients or with other employees who have HIV infection or AIDS and employees who exhibit discriminatory behavior toward these individuals may be considered insubordinate. Their actions shall be evaluated and handled in accordance with the TDMHMR Personnel Manual, sec.3.107 and sec.3.112 (Positive Performance Program and Separations, Suspensions, and Demotions). (c) All employees, including those with HIV infection or AIDS, will be hired and/or retained in their jobs based on their ability to perform the job adequately and safely and consistent with Texas Health and Safety Code, sec.sec.85.201-85.206 and sec.85.012 and the Americans with Disabilities Act. Strict confidentiality of employee medical information shall be maintained as described in Exhibit E of sec.405.295 of this title (relating to Exhibits). (d) If significant exposure occurs (as defined in sec.405.291(a) of this title (relating to Management of Accidental Exposure to Blood/Body Substances), and it is determined by the evaluating physician that the employee is the exposure source, the employee will be required to undergo the same testing that will be required of a client who is an exposure source according to TDMHMR infection control protocol as described in Exhibit C of sec.405.295 of this title (relating to Exhibits). This protocol is consistent with sec.81.102 of the Texas Health and Safety Code. If the employee is the person exposed, follow-up will also be in accordance with the protocol described in Exhibit C which is consistent with the Texas Health and Safety Code sec.81.050(j) for the purpose of qualifying for Worker's Compensation or any other similar benefits or compensations. sec.405.294. Responsibility and Resources. (a) It is the responsibility of the facility medical staff and infection control practitioner to facilitate implementation of this subchapter. The facility infection control practitioner shall be responsible for providing consultation and monitoring implementation of this subchapter. (b) The director, HIV Prevention Program, Office of Medical Support Services, is responsible for providing requested consultation to facilities. (c) The Office of Medical Support Services' HIV/AIDS Prevention Program staff are responsible for development and presentation of required basic and advanced training modules for clients and employees. (d) Facility administrators are responsible for ensuring that clients and employees receive the training. sec.405.295. Exhibits. The following exhibits are referenced in this subchapter: (1) Exhibit A-Recommendations for Basic Evaluation of HIV-Infected Patients: CD4 Cell Counts, Use of Antivirals, and Prevention of Opportunistic Infections; (2) Exhibit B-HIV/AIDS Prevention Program; (3) Exhibit C-Management of Accidental Exposure to Blood/Body Substances- TXMHMR Protocol for Serologic Testing and Follow-up; (4) Exhibit D-Public Health Services Statement on Management of Occupational Exposure to Human Immunodeficiency Virus, including Considerations Regarding Zidovudine Postexposure Use; and (5) Exhibit E-TDMHMR HIV/AIDS Workplace and Confidentiality Policy. sec.405.296. References. The following laws and rules are referred to in this subchapter: (1) Texas Communicable Disease Prevention and Control Act, Texas Health and Safety Code, Chapters 81 and 85; (2) Rehabilitation Act of 1973, sec.504; (3) The Americans with Disabilities Act of 1990; (4) Chapter 402, Subchapter C of this chapter (relating to Transfer to Vernon Maximum Security Unit); (5) Chapter 404, Subchapter E of this chapter (relating to Rights of Patients Receiving Mental Health Services); (6) Chapter 405, Subchapter F of this chapter (relating to Restraint and Seclusion in Mental Health Facilities); (7) Chapter 405, Subchapter H of this chapter (relating to Behavior Management-Facilities Serving Persons with Mental Retardation); and (8) Chapter 405, Subchapter Y of this chapter (relating to Client Rights- Mental Retardation Facilities). 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 November 22, 1994. TRD-9451259 Ann K. Utley Chairman, Texas Board of Mental Health and Mental Retardation Texas Department of Mental Health and Mental Retardation Effective date: December 13, 1994 Proposal publication date: August 30, 1994 For further information, please call: (512) 206-4516 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 101. General Rules 30 TAC sec.101.30 The Texas Natural Resource Conservation Commission (TNRCC) adopts new sec.101.30 and revision to the State Implementation Plan (SIP), concerning the criteria and procedures for determining general conformity with the SIP in nonattainment and maintenance areas, with changes to the proposed text as published in the August 9, 1994, issue of the Texas Register (19 TexReg 6197). The new sec.101.30 is adopted as a revision to the SIP for the control of criteria pollutants (ozone, carbon monoxide (CO), nitrogen dioxide (NO [sub]2), sulfur dioxide (SO [sub]2), particulate matter (PM point=4.02p [sub]10), and lead) in the nonattainment and maintenance areas. Changes to the rule include several minor editorial changes suggested by the United States Environmental Protection Agency (EPA) in sec.sec.101.30(b)(15)(A), 101.30(c)(3)(C), 101.30(c)(12), 101.30(h)(1)(A), 101.30(h)(1)(D)(ii), and 101. 30(h)(2). None of the editorial changes affected the requirements or meaning of the rule language. Changes to the SIP include adding the phrase "maintenance area" to any reference to "nonattainment area" regarding the applicability of the rule, adding the phrase "or are regionally significant" and replacing the word "similar" with the phrase "nonfederal as well as federal" in Section b. (Background Information), and placing the discussion concerning de minimis level in Section b. (Background Information) at the bottom of the page as a footnote. These revisions were required by the Federal Clean Air Act (FCAA) Amendments of 1990 and the subsequent November 30, 1993 general conformity rulemaking by EPA. The EPA required that a SIP revision and an enforceable rule be adopted concerning general conformity no later than November 30, 1994. This new rule is necessary to implement procedures for determining the general conformity of federal actions in nonattainment and maintenance areas with the SIP in force in those areas. The rule is necessary to allow EPA to make a finding that the general conformity SIP meets the requirements of the FCAA, and the final EPA rule on general conformity in the Code of Federal Regulations (CFR), 40 CFR, Part 51. The new rule is essentially an adoption of the federal general conformity rules for the State of Texas. The federal rule allows the state, or the state's designated agency (TNRCC), to adopt a rule which is more stringent than the federal rule, if the state also applies the rule to all nonfederal actions within the nonattainment and maintenance areas. The TNRCC chose not to pursue a more stringent general conformity rule, although the TNRCC reserves the right to increase the stringency with future rulemaking. Under the provisions of general conformity, any federal agency that is considering an action in a nonattainment or maintenance area which will cause the emissions of a criteria pollutant (or a precursor of that criteria pollutant) to increase above the de minimis level, or be regionally significant, will be required to mitigate that increase back to zero. The federal agency will also have to document the conformity analysis to demonstrate to the TNRCC that the action conforms to the applicable SIP for the nonattainment or maintenance area. In cases where the federal agency does not have, or cannot purchase, sufficient emissions reduction credits to mitigate the proposed increase, the federal agency may petition the state to amend the applicable SIP to make the reductions elsewhere in the nonattainment area. If the state does not agree to amend the SIP and the federal agency cannot find mitigation reductions elsewhere, then the action may be denied. There are many federal actions which have been determined to be exempt from these rules. Federal agencies must make their conformity determinations available for public review and comment. With the exception of Federal Highways Administration and Federal Transit Authority transportation actions, this rule applies to all federal agencies in nonattainment and maintenance areas that either directly fund, or have approval control, for actions within those areas. Typical agencies and actions that will be affected by this rule include the Federal Aviation Administration (FAA) with airport actions and the Department of Defense with military installation closures and realignments. This proposed rule contains definitions specific to general conformity, the applicability of federal actions to the rule, exemptions of several federal actions from the rule, and the procedures for determining general conformity with the SIP. The procedures specify the requirements of the general conformity determinations, the analysis procedure, the reporting and public comment requirements, the frequency of conformity determinations, the criteria by which conformity is determined, and the process of emissions mitigation. The rule also contains a savings provision which specifies when a federal agency shall follow the federal rule and when a federal agency shall follow the state rule. Public hearings were held on August 31, 1994 in El Paso and Irving, Texas. Public hearings were also scheduled on September 1, 1994 in Beaumont, and on September 2, 1994 in Houston. However, because no one signed the roster to speak in Beaumont or Houston, the court reporter did not prepare an official transcript for those two hearings. The El Paso City/County Health and Environmental District (EPCCHED) generally agreed with the rules and SIP revision as proposed. The EPA generally supported the rule and SIP revision; however, they suggested several editorial changes to both the rule and the SIP narrative. In the rule, EPA suggested that the word "or" be replaced with "and/or" in sec.101. 30(b)(15)(A), and in sec.101.30(h)(2). The EPA suggested that the phrase "as indicated in 40 CFR, sec.93.153(c)(3)" be deleted from sec.101.30(c)(3)(C) because the TNRCC is not adopting the EPA rules by reference. The EPA suggested that the phrase "state or federally" be changed to "state and federally" in sec.101.30(c)(12), and the phrase "applicable SIP or maintenance" be changed to "applicable SIP, attainment or maintenance" in sec.101.30(h)(1)(A) . The EPA suggested that the word "determined" be changed to "determines" in sec.101.30(h)(1)(D)(ii). The EPA also suggested editorial changes to the preamble narrative of the rule. In the SIP narrative, EPA suggested that any reference to "nonattainment areas" also include a reference to "maintenance areas" throughout the SIP. In the SIP Section b., concerning Background Information, EPA suggested that the phrase "or are regionally significant" be added after the word "levels" in the first paragraph, and the word "similar" be replaced with the phrase "nonfederal as well as federal" in the second paragraph. Finally, EPA suggested that the discussion concerning "de minimis level" in Section b. be changed to a footnote to improve clarity, and the phrase "state agencies" be replaced with "nonfederal entities." Although none of the editorial changes significantly affected the requirements or meaning of the rule language, the TNRCC staff made the editorial changes. The TNRCC staff also made the editorial changes to the SIP narrative as suggested. The six other commenters: the American Lung Association of Fort Worth (ALA-FW), Flo Stahly of the Coppell City Council (Coppell), Jean Murph of the Coppell Citizens' Advocate Newspaper ( Advocate), the Texas Citizens' Lobby (Citizens' Lobby), the Galveston-Houston Association for Smog Prevention (GHASP), and one individual suggested revisions to the general conformity rule and to the process of determining general conformity. GHASP comments included over four typewritten pages of suggested changes to the rule, all of which would make the state rule more stringent than the federal rule. The GHASP suggestions included extending the federal de minimis level down to the major modification level for each nonattainment area; requiring a general conformity analysis on federal actions which occurred before March 15, 1994; changing definitions specified in the federal rule; changing the situations specifically listed in the federal rule for which general conformity requirements do not apply or are presumed to conform; changing the federal definition of "a regionally significant action;" requiring the TNRCC to perform the conformity analysis rather than the appropriate federal agency; changing the frequency of general conformity determinations; changing the federal criteria for determining general conformity; and changing the mitigation requirements to require an equal or greater emissions reduction for the proposed federal action. The new rule is essentially an adoption of the federal general conformity rules for the State of Texas. Section 93.151 of the federal rule allows the state, or the state's designated agency (TNRCC), to adopt a rule which is more stringent than the federal rule, if the state also applies the rule to all nonfederal (state and local agency) actions within the nonattainment and maintenance areas. For example, if the state wished to make the de minimis level lower than the federal level, then the entire rule would have to apply to all state and local agency actions. The EPA set the de minimis level in an effort to limit time and resources invested by agencies in making determinations for thousands of federal actions annually, and to serve as a on those federal actions which are truly significant. A lower de minimis level would then add thousands of federal, state, and local actions annually to the general conformity determination process. The TNRCC chose not to pursue a more stringent general conformity rule, although the TNRCC reserves the right to increase the stringency with future rulemaking. EPCCHED expressed a concern that the federal portion of the volatile organic compound (VOC) emissions have not been regulated or controlled as strictly as they should have been. The general conformity rule was a statutory obligation under the FCAA, sec.176(c)(4), which authorized EPA and the states to regulate federal activities to a greater extent than they regulate private activities. All activities, private, state, and federal, must comply with specific SIP requirements and obtain pre-construction permits, if applicable. However, in accordance with the FCAA, sec.176, only federal agencies are required, as an additional matter, to determine whether an action will conform to the SIP. One individual from the ALA-FW expressed a personal religious conviction against being required to take an oath before being allowed to testify at a public hearing. The individual also stated that the hearings are too restrictive because questions voiced during the hearing are not answered at the hearing and included as part of the public record. Attendees who wish to present oral comments are not required to take an oath. They are asked by the court reporter to stand and be sworn, but anyone who chooses not to be sworn may present comments nonetheless. As stated in public hearing notices and in preambles to proposed rules, "Individuals may present oral statements when called upon in order of registration. Open discussion within the audience will not occur during the hearings; however, a TNRCC staff member will be available to discuss the proposal 30 minutes prior to each hearing and will answer questions before and after each hearing." Any questions from the audience during the open discussions before or after a hearing receive immediate responses from the staff. Questions rarely occur during the formal hearing, but, when they do, they receive a written response later in the analysis of testimony which becomes part of the official hearing record and is included in the preamble to the adopted rules and SIP published in the Texas Register . ALA-FW questioned whether a federal project, such as the Superconducting/Supercollider, which had been cancelled before the general conformity rules were in effect, would be required to comply with general conformity in the event of a revival of the project. If the project was located in a nonattainment area and was resurrected in such a manner that the original National Environmental Policy Act (NEPA) analysis was still valid, and that NEPA analysis had been completed by January 31, 1994, then the project would not have to go through general conformity. If the project was modified sufficiently upon resurrection, however, that the NEPA analysis was revised, then the general conformity rule would apply. In the specific case of the Ellis County Superconducting/Supercollider, the project was located in an attainment area for all criteria pollutants; therefore, general conformity would not apply at this time. ALA-FW questioned whether a proposed airport in Ellis County would contribute to the nonattainment status of the Dallas/Fort Worth (DFW) ozone nonattainment area. ALA-FW also questioned why Ellis County was not included as part of the DFW ozone nonattainment area. Finally, ALA-FW questioned why Ellis County is not designated nonattainment for SO [sub]2 when it is apparently in exceedance of the SO [sub]2 standard. The inclusion of certain outlying counties, such as Ellis and Johnson, was seriously considered when the current four-county nonattainment area designation was made by EPA in 1991. However, the emphasis of this proposed general conformity rule and SIP revision is not to determine how many counties should be included in the DFW ozone nonattainment area, but rather to implement a methodology whereby federal actions are reviewed for SIP compliance in nonattainment or maintenance areas. Although the outlying counties were not specifically included in the control strategy for DFW ozone attainment, the emissions from those outlying counties were included as part of the airshed modeled by the Urban Airshed Model (UAM). The UAM results demonstrate that even with the uncontrolled emissions from the outlying counties, the four-county nonattainment area will reach attainment with the current four-county control strategy. However, during the maintenance period of 20 years after redesignation to attainment, the emissions from the outlying counties will be periodically reviewed and considered as possible targets for reduction as the situation warrants. The current federal rule only applies to nonattainment or maintenance areas; however, EPA has expressed an intent to extend the general conformity rule to certain attainment areas and unclassifiable areas. The EPA has not established a schedule for the additional rulemaking at this time. There are instances where an action in an attainment area can cause indirect emission increases within a nonattainment area. This action would have to be analyzed through the general conformity process, although the current federal rule does not provide guidance for this situation. Coppell expressed a concern regarding the impact runway 16/34E will have on the quality of life enjoyed by the residents of their community. Coppell stated that the planned 16/34E runway is 3,000 feet longer than originally designed in the airport master plan, which will place airport traffic 2,000 feet away from Coppell residents. The residents are currently 7,000 feet from runway 17/35, but air traffic will be rerouted to runway 16/34E when runway 17/35 and other runways are repaired. Coppell stated that they have been working with the DFW airport board regarding the adverse noise impact, but were also concerned about the adverse impact of increased air traffic on Coppell air quality. Finally, Coppell requested that restrictions be placed on the use of runway 16/34E which will limit the times aircraft can land or take-off, and will limit those operations to aircraft with the quieter and more-efficient Stage III engines. The Citizens' Lobby submitted a petition of approximately 4,200 signatures requesting that the airport expansion be halted. They stated that because the FCAA specifically excluded the FAA, and therefore airports, from the requirements of Transportation Conformity, then the FAA and airports should be required to make reductions under the 15% VOC SIP. In addition, because the airport facility under construction is not the facility plan submitted in the Environmental Impact Statement (EIS), they requested the TNRCC to petition EPA to withhold any additional federal funds from the expansion at DFW airport. The Advocate stated that the runway expansion for DFW airport will double the aircraft operations and therefore double the aircraft emissions. The Advocate also asked that a moratorium be placed on any airport expansion project which will increase emissions. The Advocate stated that if the TNRCC is aware of an entity (DFW airport that is causing one percent of an ozone problem, then that entity should receive special corrective action, rather than be allowed to double its current emissions. The Advocate requested verification that the DFW airport emissions represent approximately one percent of the total emissions in the DFW ozone nonattainment area. During the development phase of the DFW Attainment Demonstration SIP, the TNRCC staff visited DFW airport and reviewed their efforts to make meaningful reductions of emissions. One of the discussion items was extended taxiing on the ground to get to and from the runway. As explained by the airport management staff, part of the plan for the new runway projects was a restructuring of the aircraft traffic flow to minimize the taxi times. This restructuring will not only be beneficial by reducing aircraft engine emissions, but would be an economic incentive for the air carriers to save fuel costs. DFW airport has also improved management and operations procedures by using a hard-piped fuel distribution system thus eliminating the fuel trucks from fuel transfer operations, providing central electrical power and air conditioning at each aircraft gate thus eliminating the gasoline or diesel power carts normally used at the gates, installing floating roof seals and roof covers on all the tanks at the fuel farm, converting to alternative fuel or electric powered ground support equipment, and installing a state-of-the-art fire training facility which uses propane instead of jet fuel. In addition, the air carriers at DFW airport are converting their aircraft to the quieter and more fuel efficient Stage III engines. Finally, in regard to the emissions increase associated with the runway expansion, the UAM emissions inventory for DFW airport was projected to increase approximately 20% by 1996. The attainment demonstration modeling runs included about a 11% reduction associated with aircraft stage III engine emissions, while the actual aircraft emission reduction will be closer to 40%. Altogether, the UAM modeled the aircraft engine emissions total growth of about 50% compared to the 100% growth estimate stated by the commenters. This modeled 50% growth should account for the addition of the one runway under construction. A general conformity determination will be necessary for any aircraft emissions increases which are above the de minimis level for the DFW nonattainment area. The state includes aircraft emissions as part of the SIP emissions budget which will be used to demonstrate conformity in the future. The Advocate stated that based on a conversation with the examiner after the hearing, they believe the TNRCC has accepted the DFW runway expansions as a done deal. The Advocate also stated that the City of Grapevine has a case pending with the Supreme Court regarding the runway expansion, and the issue has not been decided. If a final NEPA analysis has been completed for the runway additions before January 31, 1994, then the action is grandfathered and the general conformity rule will not apply. This in no way, however, limits the rights of citizens or local communities to use litigation as a means to review the runway expansion project. The Advocate expressed concern that the TNRCC was accepting emissions information from DFW airport officials instead of an independent party. The Advocate believes that DFW airport has a vested interest which conflicts with the interests of the state regarding airport emissions. The Advocate stated that EIS statements should be prepared through an independent study by an independent party. Both the federal NEPA rules (which cover EIS analyses) and the federal general conformity rules require the federal agency, which has the funding or controlling authority over the applicable action, to perform the NEPA and general conformity analysis. As a matter of course, the federal agency must rely on emissions data from the organization that is actually constructing the project. The role of EPA or the state agency which reviews NEPA or general conformity analyses is to ensure the data used in the analyses is valid, and that the correct assumptions and methodologies are used. Coppell requested that a mobile air quality monitor be located in Coppell, similar to the monitor placed in Grapevine, to assist in determining the impact of airport-related emissions on their air quality. The Citizens' Lobby requested that CO and nitrogen oxides (NO [sub]x) be included as compounds monitored by the mobile air toxics monitoring unit in the City of Grapevine. The Citizens' Lobby requested the extra compounds so that the citizens in the vicinity of DFW airport could know the source of their illnesses and receive proper treatment. The TNRCC acknowledges that a mobile air toxics monitoring unit was located in the City of Grapevine. The request for a mobile air toxics monitoring unit to be located in Coppell will be forwarded to the monitoring staff in the TNRCC. The TNRCC has already added two toxics monitors in the vicinity, one at the north boundary of DFW airport, and one at the south boundary of DFW airport. The TNRCC is also considering siting one or more toxics monitors on the airport property proper, and to add NO point=4.02p [sub]x and CO capability to the monitors. The Citizens' Lobby stated that Texas released 157 million pounds of toxic air emissions in 1992 which was the most of any state. They stated that the state must slow down, stop, address the situation, and become very hard-nosed if the situation is ever to be reversed. The TNRCC agrees that the state led the nation in toxic air emissions in 1992; however, the FCAA amendments of 1990 devoted Title III, Air Toxics, to the resolution of those emissions. On the other hand, the FCAA devoted Title I, Nonattainment Areas, to the resolution of six criteria pollutants, one of which is ozone. The TNRCC staff is currently following the very prescriptive requirements and guidelines of Title I in the resolution of the DFW ozone problem as evidenced by the 15% Rate-of-Progress SIP, the Attainment Demonstration SIP, and the general conformity SIP. Although the toxic air emissions problem is not being addressed in this specific SIP, the TNRCC is implementing Title III for the state of Texas. This process will address the air toxics problem in a most expeditious manner. The Citizens' Lobby stated that VOC, NO [sub]x, and CO are three legs to the ozone stool and that the state is only addressing the ozone problem by removing one leg of the stool. They also stated that reducing just the VOC portion would only remove the dirty brown color and prevent the observation of the ozone which would still be in the air. Ozone is a chemical which is generated by an extremely complex chemical process in which VOCs, NO [sub]x, and to a minor extent CO react in the presence of sunlight. High ozone concentrations are achieved when external conditions, such as high ambient temperatures, low wind speeds, and a stagnant air mass, occur simultaneously with the introduction of large quantities of the precursor chemicals (VOCs, NO [sub]x, and CO) into the air mass. Because we cannot easily change the ambient temperature, wind speed, or the presence of a stagnant air mass, a reasonable approach to reducing ozone is to reduce the quantity of one or more of the precursor compounds. Of the three precursor compounds, VOCs and NO [sub]x have the most dramatic effect on the production of ozone, and are therefore targeted in the control strategy. The ozone producing chemical process is further complicated by the fact that the chemical reactions are reversible and depend on the relative quantities of VOCs and NO [sub]x. There are some situations where VOC reductions alone will have the greatest reduction effect on ozone, other situations where NO [sub]x reductions alone will have the greatest reduction effect on ozone, and still other situations where VOC and NO [sub]x reductions are both required to greatly reduce ozone. The UAM is the tool used by the TNRCC to determine which reduction strategy is the most beneficial. For the DFW area, the UAM has demonstrated that ozone levels can be maintained below the standard of 120 parts per billion (ppb) with only the FCAA mandated 15% (net-of-growth) VOC reductions. The primary purpose of the general conformity rule in the DFW area is to ensure federal actions do not increase VOC and NO [sub]x emissions so that the area exceeds its emissions budget. The TNRCC agrees that ozone will still be present in the DFW airshed after the SIP control strategy is implemented; however, the UAM predicts that ozone will not be generated in sufficient quantities to exceed the standard. The Citizen's Lobby stated that the TNRCC is only considering emission controls and does not stress management and operations of the process. As an example, they stated that the DFW airport runway addition would cause an emissions increase of 160% due to extended taxiing on the ground to get to the new runways. They also stated that if DFW airport would use three parallel north- south runways (one for landing, one for taxiing, and one for taking-off), the airport could reduce emissions by 250% due to reduced taxiing. During the development phase of the SIP, the TNRCC staff visited DFW airport and reviewed their efforts to make meaningful reductions of emissions. One of the discussion items was extended taxiing on the ground to get to and from the runway. As explained by the airport management staff, part of the plan for the new runway projects was a restructuring of the aircraft traffic flow to minimize the taxi times. This restructuring will not only be beneficial by reducing aircraft engine emissions, but would be an economic incentive for the air carriers to save fuel costs. DFW airport has also improved management and operations procedures by using a hard-piped fuel distribution system thus eliminating the fuel trucks from fuel transfer operations, providing central electrical power and air conditioning at each aircraft gate thus eliminating the gasoline or diesel power carts normally used at the gates, installing floating roof seals and roof covers on all the tanks at the fuel farm, converting to alternative fuel or electric powered ground support equipment, and installing a state-of-the-art fire training facility which uses propane instead of jet fuel. Finally, the air carriers at DFW airport are converting their aircraft to the quieter and more fuel efficient Stage III engines. In the case of future projects at DFW airport, the airport management staff and the air carriers will be required to improve operations and management practices in order to provide emissions reductions for mitigation purposes. One individual stated that the catalytic convertors had been removed from all vehicles which are used by the airport. According to the TNRCC Mobile Source Division, all vehicles which operate at DFW airport and which are registered for highway use, must pass the Inspection and Maintenance (I/M) testing. The I/M test will capture those vehicles which are missing their catalytic convertor. If there are other unregistered airport vehicles which are missing their catalytic convertor, then the airport management and/or vehicle owner/operator should have the vehicle repaired. As the airport service fleet is converted to alternative fueled or electric vehicles, this problem should be eliminated. The Advocate relayed a statement from an air conditioning repairmen who has repaired units all over the DFW Metroplex, but who has found units in which the air conditioning pans (water) have totally rusted out only in the vicinity of the City of Coppell. The repairman is concerned that the cause of the rust problem is the pollutants from the aircraft at DFW airport. The Advocate also stated that the four-city area surrounding DFW airport contains a grandfathered power plant which was built in 1959 and emits NO point=4.02p [sub]x and SO [sub]2. The Advocate believes that this power plant, which was grandfathered from permitting, is contributing to the poor air quality problem, especially when its emissions are combined with the DFW airport emissions. The TNRCC agrees that NO [sub]x emissions produce acid particulates which contribute to respiratory problems and acid rain; however, ambient air quality monitors in the DFW area have not revealed NO [sub]2 concentrations which exceed the standard. Regarding the rust problem with Coppell air conditioning units, the problem is more likely the result of the condition of the Coppell water system rather than acid rain. If NO [sub]x emissions from DFW airport were the problem, then one would expect similar rusting effects in the cities of Grapevine, Euless, Southlake, and Irving which are adjacent to the airport. The general conformity rule cannot solve the problem with air conditioners, nor can it address the permitting problem with the grandfathered power plant. The rule can, however, prevent the emissions from DFW airport from increasing significantly as a result of future actions. The Citizens' Lobby submitted a petition which contained over 80 people who believe that their health problems are related to the air emissions generated by DFW airport. One individual stated that she had never had allergy problems until she moved to the DFW area as an adult. She stated that her physician has practiced in many states and had said that the allergies in the DFW area were the worst he had seen. Another individual stated that when her family moved from Richardson to Coppell (near DFW airport), her previously healthy daughter has had a series of sinus infections ever since. She expressed concern that with the DFW airport runway expansion, her daughter's health will get worse. The Citizens' Lobby stated that DFW airport expansion was causing an increase in emissions in the vicinity of the airport. They also stated that the current emissions were causing serious respiratory and health problems for citizens in the vicinity of the airport. One individual stated that she had received letters from families in Coppell regarding the possible health effects of DFW airport. One individual stated that she could tell that an ozone advisory was going to be announced by the way she felt. She stated that her breathing is very shallow on ozone alert days, and when the ozone level is very high, her chest hurts. The TNRCC acknowledges that there may be detrimental health effects associated with ozone concentrations over the standard. There may also be detrimental health effects associated with the other criteria pollutants of lead, PM [sub]10, CO, NO [sub]2, and SO [sub]2. In addition, there are many detrimental health effects associated with toxic compounds, many of them airborne, which exist in various concentrations all over the state and country. However, the emphasis of this general conformity SIP is not to solve the problems associated with all of the airborne pollutants and toxics, but rather to mitigate future increases of criteria pollutants in nonattainment or maintenance areas which are caused by federal actions. The TNRCC believes that the Attainment Demonstration SIP, when coupled with the general conformity rule, addresses the health effects near DFW airport associated with ozone and will make great strides toward the mitigation of those effects. The Citizens' Lobby submitted a screen modeling package for the DFW airport which implies that the area surrounding the airport should be declared nonattainment for NO [sub]2 and CO. The TNRCC disagrees that DFW airport should be declared nonattainment for either NO [sub]2 or CO on the basis of the SCREEN (not an acronym) model results submitted at the public hearing. The SCREEN model is considered to be a conservative model that is based on "worst case" assumptions about meteorological conditions that generally will result in over prediction of air pollution impacts. It is designed as a relatively simple screening tool to confirm whether a given source will not have an adverse impact assuming worst case conditions. In order to use the SCREEN model for DFW airport, it was necessary to make several simplifying assumptions. Chief among these was the assumption that all of the aircraft emissions are emitted from a single stationary point located five meters off the ground. Realistically, these emissions would have been spread out over a large area, and a portion of the emissions would be emitted from higher elevations as planes take off and land. This assumption and the general "worst case" nature of the model would be expected to result in predicted impacts that are higher than would really occur. As some evidence that the predicted results are probably higher than the actual concentrations, ambient monitoring results in the DFW area generally have not documented exceedances of the standards for CO or NO [sub]2. The last recorded exceedance of the CO standard was in 1985, and was traced to unusual traffic events in the vicinity of a monitor located near downtown Dallas. There has never been a monitored exceedance of the NO [sub]2 standard in the DFW area. The CO levels in 1992 were less than one-third of the hourly standard. In addition, as part of the development of the EIS for the proposed runway expansion, the FAA conducted ambient air monitoring in the vicinity of terminal 2E. If the CO concentrations were as high as those predicted by the SCREEN model, then the CO monitors would have registered high levels due to their central location. The measured values, however, never exceeded four parts per million (ppm), while the SCREEN model predicted values greater than 35 ppm out to a distance of five kilometers. In any event, future airport actions must comply with general conformity requirements which will prevent significant increases of the precursor emissions of VOC, NO point=4.02p [sub]x, and CO. The amendment is adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.101.30. Conformity of General Federal and State Actions to State Implementation Plans. (a) Purpose. (1) The purpose of this rule is to implement sec.176(c) of the Federal Clean Air Act (FCAA), as amended (42 United States Code, sec.7401 et seq.) and regulations under the Code of Federal Regulations (CFR), 40 CFR, Part 51, Subpart W, with respect to the conformity of general federal actions with the applicable state implementation plan (SIP). Under those authorities, no department, agency, or instrumentality of the federal government shall engage in; support in any way or provide financial assistance for; license or permit; or approve any activity which does not conform to an applicable SIP. This rule sets forth policy, criteria, and procedures for demonstrating and assuring conformity of such action to the applicable SIP. (2) Under FCAA, sec.176(c) and 40 CFR, Part 51, Subpart W, a federal agency must make a determination that a federal action conforms to the applicable SIP in accordance with the requirements of this rule before the action is taken, with the exception of federal actions where either: (A) a National Environmental Policy Act (NEPA) analysis was completed as evidenced by a final environmental assessment (EA), environmental impact statement (EIS), or finding of no significant impact (FONSI) that was prepared prior to January 31, 1994; or (B) prior to January 31, 1994, an EA was commenced or a contract was awarded to develop the specific environmental analysis; and sufficient environmental analysis is completed by March 15, 1994, so that the federal agency may determine that the federal action is in conformity with the specific requirements and the purposes of the applicable SIP pursuant to the agency's affirmative obligation under the FCAA, sec.176(c); and a written determination of conformity under the FCAA, sec.176(c) has been made by the federal agency responsible for the federal action by March 15, 1994. (3) Notwithstanding any provision of this rule, a determination that an action is in conformity with the applicable SIP does not exempt the action from any other requirements of the applicable SIP, the NEPA, or the FCAA. (b) Definitions. Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the Texas Natural Resource Conservation Commission (TNRCC or Commission), the terms used by the Commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, the following terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Affected federal land manager-The federal agency or the federal official charged with direct responsibility for management of an area designated as Class I under the FCAA (42 United States Code, sec.7472) that is located within 100 kilometers of the proposed federal action. (2) Applicable state implementation plan (SIP)-The portion (or portions) of the SIP, or most recent revision thereof, which has been approved under the FCAA, sec.110 or promulgated under the FCAA, sec.110(c) (Federal Implementation Plan or FIP), or promulgated or approved pursuant to regulations promulgated under the FCAA, sec.301(d) and which implements the relevant requirements of the FCAA. (3) Areawide air quality modeling analysis-An assessment on a scale that includes the entire nonattainment or maintenance area which uses an air quality dispersion model to determine the effects of emissions on air quality. (4) Cause or contribute to a new violation-A federal action that: (A) causes a new violation of a national ambient air quality standard (NAAQS) at a location in a nonattainment or maintenance area which would otherwise not be in violation of the standard during the future period in question if the federal action were not taken; or (B) contributes, in conjunction with other reasonably foreseeable actions, to a new violation of a NAAQS at a location in a nonattainment or maintenance area in a manner that would increase the frequency or severity of the new violation. (5) Cause by, as used in the terms "direct emissions" and "indirect emissions,"-Emissions that would not otherwise occur in the absence of the federal action. (6) Criteria pollutant or standard-Any pollutant for which there is established a NAAQS in 40 CFR, Part 50. (7) Direct emissions-Those emissions of a criteria pollutant or its precursors that are caused or initiated by the federal action and occur at the same time and place as the action. (8) Emergency-A situation where extremely quick action on the part of the federal agencies involved is needed, and where the timing of such federal activities makes it impractical to meet the requirements of this rule, such as natural disasters like hurricanes or earthquakes, and civil disturbances such as terrorist acts and military mobilizations. (9) Emissions budgets-Those portions of the total allowable emissions defined for a certain date in a revision to the applicable SIP for the purpose of meeting reasonable further progress milestones, attainment demonstrations, or maintenance demonstrations; for any criteria pollutant or its precursors allocated by the applicable implementation to mobile sources, to any stationary source or class of stationary sources, to any federal action or class of actions, to any class of area sources, or to any subcategory of the emissions inventory. An emissions budget may be expressed in terms of an annual period, a daily period, or other period established in the applicable SIP. (10) Emissions offsets, for purposes of subsection (h) of this section- Emissions reductions which are quantifiable; consistent with the applicable SIP attainment and reasonable further progress demonstrations; surplus to reductions required by and credited to other applicable SIP provisions; enforceable under both state and federal law; and permanent within the time frame specified by the program. Emissions reductions intended to be achieved as emissions offsets under this rule must be monitored and enforced in a manner equivalent to that under the United States Environmental Protection Agency's (EPA) new source review requirements. (11) Emissions that a federal agency has a continuing program responsibility for-Emissions that are specifically caused by an agency carrying out its authorities, but does not include emissions that occur due to subsequent activities, unless such activities are required by the federal agency. Where an agency, in performing its normal program responsibilities, takes actions itself or imposes conditions that result in air pollutant emissions by a nonfederal entity taking subsequent actions, such emissions are covered by the meaning of a continuing program responsibility. (12) Federal action-Any activity engaged in by a department, agency, or instrumentality of the federal government, or any activity that a department, agency, or instrumentality of the federal government supports in any way; provides financial assistance for; licenses, permits, or approves. Activities related to transportation plans, programs, and projects developed, funded, or approved under Title 23 United States Code or the Federal Transit Act (49 United States Code, sec.1601 et seq.) are not considered to be federal actions under general conformity. Where the federal action is a permit, license, or other approval for some aspect of a nonfederal undertaking, the relevant activity is the part, portion, or phase of the nonfederal undertaking that required the federal permit, license, or approval. (13) Federal agency-A federal department, agency, or instrumentality of the federal government. (14) Increase the frequency or severity of any existing violation of any standard in any area-To cause a nonattainment area to exceed a standard more often or to cause a violation at a greater concentration than previously existed or would otherwise exist during the future period in question, if the project were not implemented. (15) Indirect emissions-This term does not have the same meaning as given to an indirect source of emissions under sec.110(a)(5) of the FCAA, but for general conformity are those emissions of a criteria pollutant or its precursors that: (A) are caused by the federal action, but may occur later in time and/or may be farther removed in distance from the action itself but are still reasonably foreseeable; and (B) the federal agency can practicably control and will maintain control over due to a continuing program responsibility of the federal agency, including, but not limited to: (i) traffic on or to, or stimulated or accommodated by, a proposed facility which is related to increases or other changes in the scale or timing of operations of such facility; (ii) emissions related to the activities of employees of contractors or federal employees; (iii) emissions related to employee commutation and similar programs to increase average vehicle occupancy imposed on all employers of a certain size in the locality; (iv) emissions related to the use of federal facilities under lease or temporary permit; (v) emissions related to the activities of contractors or leaseholders that may be addressed by provisions that are usual and customary for contracts or leases or within the scope of contractual protection of the interests of the United States. (16) Local air quality modeling analysis-An assessment of localized impacts on a scale smaller than the entire nonattainment or maintenance area, including, for example, congested roadway intersections and highways or transit terminals, which uses an air quality dispersion model to determine the effects of emissions on air quality. (17) Maintenance area-Any geographic region of the United States previously designated nonattainment pursuant to the FCAA Amendments of 1990 and subsequently redesignated to attainment subject to the requirement to develop a maintenance plan under the FCAA, sec.175A. (18) Maintenance plan-A revision to the applicable SIP, meeting the requirements of the FCAA, sec.175A. (19) Metropolitan Planning Organization (MPO)-That organization designated as being responsible, together with the state, for conducting the continuing, cooperative, and comprehensive planning process under 23 United States Code, sec.134 and 49 United States Code, sec.1607. (20) Milestone has the meaning given in the FCAA, sec.182(g)(1) and sec.189(c)(1)-A milestone consists of an emissions level and the date on which it is required to be achieved. (21) National Ambient Air Quality Standards (NAAQS) -Those standards established pursuant to the FCAA, sec.109 and include standards for carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO [sub]2), ozone, particulate matter (PM [sub]10), and sulfur dioxide (SO [sub]2). (22) NEPA-The National Environmental Policy Act of 1969, as amended (42 United States Code, sec.4321 et seq.). (23) Nonattainment area (NAA)-Any geographic area of the United States which has been designated as nonattainment under the FCAA, sec.107 and described in 40 CFR, Part 81. (24) Precursors of a criteria pollutant are: (A) for ozone, nitrogen oxides (NO [sub]x) [unless an area is exempted from NO point=4.52p [sub]x requirements under the FCAA, sec.182(f)] and volatile organic compounds (VOC); and (B) for PM [sub]10, those pollutants described in the PM [sub]10 nonattainment area applicable SIP as significant contributors to the PM [sub]10 levels. (25) Reasonably foreseeable emissions-Projected future indirect emissions that are identified at the time the conformity determination is made; the location of such emissions is known to the extent adequate to determine the impact of such emissions; and the emissions are quantifiable, as described and documented by the federal agency based on its own information and after reviewing any information presented to the federal agency. (26) Regionally significant action-A federal action for which the direct and indirect emissions of any pollutant represent 10% or more of a nonattainment or maintenance area's emissions inventory for that pollutant. (27) Regional water or wastewater projects-Projects which include construction, operation, and maintenance of water or wastewater conveyances, water or wastewater treatment facilities, and water storage reservoirs which affect a large portion of a nonattainment or maintenance area. (28) Total of direct and indirect emissions-The sum of direct and indirect emissions increases and decreases caused by the federal action; i.e., the "net" emissions considering all direct and indirect emissions. Any emissions decreases used to reduce such total shall have already occurred or shall be enforceable under state and federal law. The portion of emissions which are exempt or presumed to conform under subsection (c)(3), (4), (5), or (6) of this section are not included in the "total of direct and indirect emissions," except as provided in subsection (c)(10) of this section. The "total of direct and indirect emissions" includes emissions of criteria pollutants and emissions of precursors of criteria pollutants. The segmentation of projects for conformity analyses, when emissions are reasonably foreseeable, is not permitted by this rule. (c) Applicability. (1) Conformity determinations for federal actions related to transportation plans, programs, and projects developed, funded, or approved under Title 23 United States Code or the Federal Transit Act (49 United States Code, sec.1601 et seq.) shall meet the procedures and criteria of sec.114.27 of this title, regarding Transportation Conformity, and the Transportation Conformity SIP, in lieu of the procedures set forth in this rule. (2) For federal actions not covered by paragraph (1) of this subsection, a conformity determination is required for each pollutant where the total of direct and indirect emissions in a nonattainment or maintenance area caused by a federal action would equal or exceed any of the rates in subparagraphs (A) or (B) of this paragraph. (A) For purposes of paragraph (2) of this subsection, the following rates apply in nonattainment areas (NAAs): Figure 1: sec.101.30(c)(2)(A). (B) For purposes of paragraph (2) of this subsection, the following rates apply in maintenance areas: Figure 2: sec.101.30(c)(2)(B). (3) The requirements of this rule shall not apply to: (A) actions where the total of direct and indirect emissions are below the emissions levels specified in paragraph (2) of this subsection; (B) the following actions which would result in no emissions increase or an increase in emissions that is clearly de minimis: (i) judicial and legislative proceedings; (ii) continuing and recurring activities, such as permit renewals, where activities conducted will be similar in scope and operation to activities currently being conducted; (iii) rulemaking and policy development and issuance; (iv) routine maintenance and repair activities, including repair and maintenance of administrative sites, roads, trails, and facilities; (v) civil and criminal enforcement activities, such as investigations, audits, inspections, examinations, prosecutions, and the training of law enforcement personnel; (vi) administrative actions such as personnel actions, organizational changes, debt management or collection, cash management, internal agency audits, program budget proposals, and matters relating to the administration and collection of taxes, duties, and fees; (vii) the routine, recurring transportation of material and personnel; (viii) routine movement of mobile assets, such as ships and aircraft, in home port reassignments and stations (when no new support facilities or personnel are required) to perform as operational groups, or for repair or overhaul; (ix) maintenance dredging and debris disposal where no new depths are required, applicable permits are secured, and disposal will be at an approved disposal site; (x) with respect to existing structures, properties, facilities, and lands where future activities conducted will be similar in scope and operation to activities currently being conducted at the existing structures, properties, facilities, and lands, actions such as relocation of personnel, disposition of federally-owned existing structures, properties, facilities, and lands, rent subsidies, operation and maintenance cost subsidies, the exercise of receivership or conservatorship authority, assistance in purchasing structures, and the production of coins and currency; (xi) the granting of leases, licenses such as for exports and trade, permits, and easements where activities conducted will be similar in scope and operation to activities currently being conducted; (xii) planning, studies, and provision of technical assistance; (xiii) routine operation of facilities, mobile assets, and equipment; (xiv) transfers of ownership, interests, and titles in land, facilities, and real and personal properties, regardless of the form or method of the transfer; (xv) the designation of empowerment zones, enterprise communities, or viticultural areas; (xvi) actions by any of the federal banking agencies or the Federal Reserve Banks, including actions regarding charters, applications, notices, licenses, the supervision or examination of depository institutions or depository institution holding companies, access to the discount window, or the provision of financial services to banking organizations or to any department, agency, or instrumentality of the United States; (xvii) actions by the Board of Governors of the Federal Reserve System or any Federal Reserve Bank to effect monetary or exchange rate policy; (xviii) actions that implement a foreign affairs function of the United States; (xix) actions (or portions thereof) associated with transfers of land, facilities, title, and real properties through an enforceable contract or lease agreement where the delivery of the deed is required to occur promptly after a specific, reasonable condition is met, such as promptly after the land is certified as meeting the requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and where the federal agency does not retain continuing authority to control emissions associated with the lands, facilities, titles, or real properties; (xx) transfers of real property, including land, facilities, and related personal property from a federal entity to another federal entity and assignments of real property, including land, facilities, and related personal property from a federal entity to another federal entity for subsequent deeding to eligible applicants; (xxi) actions by the Department of the Treasury to effect fiscal policy and to exercise the borrowing authority of the United States; (C) actions where the emissions are not reasonably foreseeable, such as the following actions: (i) initial outer continental shelf lease sales which are made on a broad scale and are followed by exploration and development plans on a project level; (ii) electric power marketing activities that involve the acquisition, sale, and transmission of electric energy; (D) individual actions which implement a decision to conduct or carry out a program that has been found to conform to the applicable SIP, such as prescribed burning actions which are consistent with a land management plan that has been found to conform to the applicable SIP. Such land management plan shall have been found to conform within the past five years. (4) Notwithstanding the other requirements of this rule, a conformity determination is not required for the following federal actions (or portion thereof). (A) the portion of an action that includes major new or modified stationary sources that require a permit under the new source review (NSR) program (FCAA, sec.173) or the prevention of significant deterioration (PSD) program (Title I, Part C of the FCAA). (B) actions in response to emergencies or natural disasters such as hurricanes, earthquakes, etc., which are commenced on the order of hours or days after the emergency or disaster and, if applicable, which meet the requirements of paragraph (5) of this subsection. (C) research, investigations, studies, demonstrations, or training other than those exempted under paragraph (3)(B) of this subsection, where no environmental detriment is incurred or the particular action furthers air quality research, as determined by the state agency primarily responsible for the SIP. (D) alteration and additions of existing structures as specifically required by new or existing applicable environmental legislation or environmental regulations, e.g., hush houses for aircraft engines and scrubbers for air emissions. (E) direct emissions from remedial and removal actions carried out under the CERCLA and associated regulations to the extent such emissions either comply with the substantive requirements of the NSR/PSD permitting program or are exempted from other environmental regulation under the provisions of CERCLA and applicable regulations issued under CERCLA. (5) federal actions which are part of a continuing response to an emergency or disaster under paragraph (4)(B) of this subsection and which are to be taken more than six months after the commencement of the response to the emergency or disaster under paragraph (4)(B) of this subsection are exempt from the requirements of this section only if: (A) the federal agency taking the actions makes a written determination that, for a specified period not to exceed an additional six months, it is impractical to prepare the conformity analyses which would otherwise be required and the actions cannot be delayed due to overriding concerns for public health and welfare, national security interests, and foreign policy commitments; or (B) for actions which are to be taken after those actions covered by paragraph (5)(A) of this subsection, the federal agency makes a new determination as provided in paragraph (5)(A) of this subsection. (6) Notwithstanding other requirements of this rule, individual actions or classes of actions specified by individual federal agencies that have met the criteria set forth in either paragraph (7)(A) or (7) (B) of this subsection and the procedures set forth in paragraph (8) of this subsection are presumed to conform, except as provided in paragraph (10) of this subsection. (7) The federal agency must meet the criteria for establishing activities that are presumed to conform by fulfilling the requirements set forth in either paragraph (7)(A) or (7)(B) of this subsection: (A) the federal agency must clearly demonstrate using methods consistent with this rule that the total of direct and indirect emissions from the type of activities which would be presumed to conform would not: (i) cause or contribute to any new violation of any standard in any area; (ii) interfere with provisions in the applicable SIP for maintenance of any standard; (iii) increase the frequency or severity of any existing violation of any standard in any area; or (iv) delay timely attainment of any standard or any required interim emission reductions or other milestones in any area including, where applicable, emission levels specified in the applicable SIP or purposes of: (I) a demonstration of reasonable further progress; (II) a demonstration of attainment; or (III) a maintenance plan; or (B) the federal agency shall provide documentation that the total of direct and indirect emissions from such future actions would be below the emission rates for a conformity determination that are established in paragraph (2) of this subsection, based, for example, on similar actions taken over recent years. (8) In addition to meeting the criteria for establishing exemptions set forth in paragraphs (7)(A) or (7)(B) of this subsection, the following procedures must also be complied with to presume that activities will conform: (A) the federal agency shall identify through publication in the Federal Register its list of proposed activities that are presumed to conform and the analysis, assumptions, emissions factors, and criteria used as the basis for the presumptions; (B) the federal agency shall notify the appropriate EPA Regional Office, TNRCC, local air quality agencies and, where applicable, the Texas Department of Transportation (TxDOT) and the MPO, and provide at least 30 days for the public to comment on the list of proposed activities presumed to conform; (C) the federal agency shall document its response to all the comments received and make the comments, response, and final list of activities available to the public upon request; and (D) the federal agency shall publish the final list of such activities in the Federal Register . (9) Notwithstanding the other requirements of this rule, when the total of direct and indirect emissions of any pollutant from a federal action does not equal or exceed the rates specified in paragraph (2) of this subsection, but represents 10% or more of a nonattainment or maintenance area's total emissions of that pollutant, then the action is defined as a regionally significant action and the requirements of subsections (a) and (e)-(j) of this section shall apply for the federal action. (10) Where an action, presumed to be de minimis under paragraph (3)(A) or (B) of this subsection, or otherwise presumed to conform under paragraph (6) of this subsection is a regionally significant action or does not in fact meet one of the criteria in paragraph (7)(A) of this section, that action shall not be considered de minimis or presumed to conform and the requirements of subsections (a) and (e)-(j) of this section shall apply for the federal action. (11) The provisions of this section shall apply in all nonattainment and maintenance areas. (12) Any measures used to affect or determine applicability of this rule, as determined under this subsection, must result in projects that are in fact de minimis , must result in such de minimis levels prior to the time the applicability determination is made, and must be state and federally enforceable. Any measures that are intended to reduce air quality impacts for this purpose must be identified (including the identification and quantification of all emission reductions claimed); and the process for implementation (including any necessary funding of such measures and tracking of such emission reductions) and enforcement of such measures must be described, including an implementation schedule containing explicit timelines for implementation. Prior to a determination of applicability, the federal agency making the determination must obtain written commitments from the appropriate persons or agencies to implement any measures which are identified as conditions for making such determinations. Such written commitment shall describe such mitigation measures and the nature of the commitment, in a manner consistent with the previous sentence. After this implementation plan revision is approved by EPA, enforceability through the applicable SIP of any measures necessary for a determination of applicability will apply to all persons who agree to reduce direct and indirect emissions associated with a federal action for a conformity applicability determination. (d) Conformity Analysis. Any federal department, agency, or instrumentality of the federal government taking an action subject to 40 CFR, Part 51, Subpart W and this section shall make its own conformity determination consistent with the requirements of this rule. In making its conformity determination, a federal agency must consider comments from any interested parties. Where multiple federal agencies have jurisdiction for various aspects of a project, a federal agency may choose to adopt the analysis of another federal agency (to the extent the proposed action and impacts analyzed are the same as the project for which a conformity determination is required) or develop its own analysis in order to make its conformity determination. (e) Reporting Requirements. (1) A federal agency making a conformity determination under subsection (h) of this section shall provide to the appropriate EPA Regional Office, the TNRCC, local air quality agencies and, where applicable, affected federal land managers, TxDOT and the MPO, a 30-day notice which describes the proposed action and the federal agency's draft conformity determination on the action. (2) A federal agency shall notify the appropriate EPA Regional Office, TNRCC, local air quality agencies and, where applicable, affected federal land managers, TxDOT and the MPO within 30 days after making a final conformity determination under subsection (h) of this section. (3) As a matter of policy, the state will not make any determination under subsection (h)(1)(E)(i)(I) of this section or any commitment under subsection (h)(1)(E)(i)(II) of this section, unless the federal agency provides to the TNRCC information on all projects or other actions which may affect air quality or emissions in any area to which this rule is applicable, whether such project or action is determined to be subject to this rule under subsection (c) of this section. As a matter of policy, the emissions budget that would otherwise be available for projects of any federal agency under subsection (h) of this section shall be reduced by 50% [or other percentage as the state determines] in the case of any federal agency that does not provide to the TNRCC information on all projects or other actions which may affect air quality or emissions in any area to which this rule is applicable, regardless of whether such project or action is determined to be subject to this rule under subsection (c) of this section. (f) Public Participation and Consultation. (1) Upon request by any person regarding a specific federal action, a federal agency shall make available for review its draft conformity determination under subsection (h) of this section with supporting materials which describe the analytical methods, assumptions, and conclusions relied upon in making the applicability analysis and draft conformity determination. (2) A federal agency shall make public its draft conformity determination under subsection (h) of this section by placing a notice by prominent advertisement in a daily newspaper of general circulation in the areas affected by the action and by providing 30 days for written public comment prior to taking any formal action on the draft determination. This comment period may be concurrent with any other public involvement, such as occurs in the NEPA process. (3) A federal agency shall document its response to all the comments received on its draft conformity determination under subsection (h) of this section and make the comments and responses available, upon request by any person regarding a specific federal action, within 30 days of the final conformity determination. (4) A federal agency shall make public its final conformity determination under subsection (h) of this section for a federal action by placing a notice by prominent advertisement in a daily newspaper of general circulation in the areas affected by the action within 30 days of the final conformity determination. (g) Frequency of Conformity Determinations. (1) The conformity status of a federal action automatically lapses five years from the date a final conformity determination is reported under subsection (e) of this section, unless the federal action has been completed or a continuous program has been commenced to implement that federal action within a reasonable time. (2) Ongoing federal activities at a given site showing continuous progress are not new actions and do not require periodic redetermination so long as the emissions associated with such activities are within the scope of the final conformity determination reported under subsection (e) of this section. (3) If, after the conformity determination is made, the federal action is changed so that there is an increase in the total of direct and indirect emissions above the levels in subsection (c)(1) of this section, a new conformity determination is required. (h) Criteria for Conformity Determination of General Federal Actions. (1) An action required under subsection (c) of this section to have a conformity determination for a specific pollutant, will be determined to conform to the applicable plan if, for each pollutant that exceeds the rates of subsection (c)(2) of this section, or otherwise requires a conformity determination due to the total of direct and indirect emissions from the action, the action meets the requirements of paragraph (3) of this subsection, and meets any of the following requirements: (A) for any criteria pollutant, the total of direct and indirect emissions from the action are specifically identified and accounted for in the applicable SIP attainment or maintenance demonstration; (B) for ozone or NO [sub]2, the total of direct and indirect emissions from the action are fully offset within the same nonattainment or maintenance area through a revision to the applicable SIP or a measure similarly enforceable under state and federal law that effects emission reductions so that there is no increase in emissions of that pollutant; (C) for any criteria pollutant, except ozone and NO point=4.52p [sub]2, the total of direct and indirect emissions from the action shall meet the requirements: (i) specified in paragraph (2) of this subsection, based on areawide air quality modeling analysis and local air quality modeling analysis; or (ii) specified in paragraph (1)(E) of this subsection and, for local air quality modeling analysis, the requirement of paragraph (2) of this subsection; (D) for CO or PM [sub]10: (i) where the TNRCC determines, in accordance with subsections (e) and (f) of this section and consistent with the applicable SIP, that an areawide air quality modeling analysis is not needed, the total of direct and indirect emissions from the action meet the requirements specified in paragraph (2) of this subsection, based on local air quality modeling analysis; or (ii) where the TNRCC determines, in accordance with subsections (e) and (f) of this section and consistent with the applicable SIP, that an areawide air quality modeling analysis is appropriate, and that a local air quality modeling analysis is not needed, the total of direct and indirect emissions from the action meet the requirements specified in paragraph (2) of this subsection, based on areawide modeling, or meet the requirements of paragraph (1)(E) of this subsection; (E) for ozone or nitrogen dioxide, and for purposes of paragraphs (1)(C)(ii) and (1)(D) (ii) of this subsection, each portion of the action or the action as a whole meets any of the following requirements: (i) where EPA has approved a revision to an area's attainment or maintenance demonstration after 1990, and the state makes a determination as provided in subclause (I) of this clause, or where the state makes a commitment as provided in subclause (II) of this clause. Any such determination or commitment shall be made in compliance with subsections (e) and (f) of this section. (I) The total of direct and indirect emissions from the action, or portion thereof, is determined and documented by the TNRCC to result in a level of emissions which, together with all other emissions in the nonattainment or maintenance area, would not exceed the emissions budgets specified in the applicable SIP. (II) The total of direct and indirect emissions from the action, or portion thereof, is determined by the TNRCC to result in a level of emissions which, together with all other emissions in the nonattainment or maintenance area, would exceed an emissions budget specified in the applicable SIP and the TNRCC makes a written commitment to EPA which includes the following: (-a-) a specific schedule for adoption and submittal of a revision to the applicable SIP which would achieve the needed emission reductions prior to the time emissions from the federal action would occur; (-b-) identification of specific measures for incorporation into the applicable SIP which would result in a level of emissions which, together with all other emissions in the nonattainment or maintenance area, would not exceed any emissions budget specified in the applicable SIP; (-c-) a demonstration that all existing applicable SIP requirements are being implemented in the area for the pollutants affected by the federal action, and that local authority to implement additional requirements has been fully pursued; (-d-) a determination that the responsible federal agencies have required all reasonable mitigation measures associated with their action. As a matter of TNRCC policy, a commitment will be made only if the TNRCC determines that the project sponsors and responsible federal agencies have sought all available emissions offsets and made all reasonably available modifications of the action to reduce emissions; and (-e-) written documentation including all air quality analyses supporting the conformity determination. (III) Where a federal agency made a conformity determination based on a state commitment under paragraph (1) (E)(i)(II) of this clause, such a state commitment is automatically deemed to call for a SIP revision by EPA under the FCAA, sec.110(k)(5), effective on the date of the federal conformity determination and requiring response within 18 months or any shorter time within which the state commits to revise the applicable SIP; (ii) the action or portion thereof, as determined by the MPO, is specifically included in a current transportation plan and transportation improvement program which have been found to conform to the applicable SIP under sec.114.27 of this title, concerning Transportation Conformity, or the Transportation Conformity SIP, or 40 CFR, Part 93, Subpart A; (iii) the action, or portion thereof, fully offsets its emissions within the same nonattainment or maintenance area through a revision to the applicable SIP, or an equally enforceable measure that effects emission reductions equal to or greater than the total of direct and indirect emissions from the action so that there is no net increase in emissions of that pollutant; (iv) where EPA has not approved a revision to the relevant SIP, attainment demonstration, or maintenance demonstration since 1990, the total of direct and indirect emissions from the action for the future years as described in subsection (i)(4) of this section do not increase emissions with respect to the baseline emissions; and: (I) the baseline emissions reflect the historical activity levels that occurred in the geographic area affected by the proposed federal action during: (-a-) calendar year 1990; (-b-) the calendar year that is the basis for the classification (or, where the classification is based on multiple years, the year that is most representative in terms of the level of activity), if a classification is promulgated in 40 CFR, Part 81; or (-c-) the year of the baseline inventory in the applicable PM [sub]10 SIP; (II) the baseline emissions are the total of direct and indirect emissions calculated for the future years, described in subsection (i)(4) of this section using the historic activity levels described in paragraph (1)(E)(iv)(I) of this subsection and appropriate emission factors for the future years; or (v) where the action involves regional water or wastewater projects, such projects are sized to meet only the needs of population projects that are in the applicable SIP, based on assumptions regarding per capita use that are developed or approved in accordance with subsection (i)(1) of this section. (2) The areawide and/or local air quality modeling analyses must: (A) meet the requirements in subsection (i) of this section; and (B) show that the action does not: (i) cause or contribute to any new violation of any standard in any area; or (ii) increase the frequency or severity of any existing violation of any standard in any area. (3) Notwithstanding any other requirements of this section, an action subject to this rule may not be determined to conform to the applicable SIP, unless the total of direct and indirect emissions from the action is in compliance or consistent with all relevant requirements and milestones contained in the applicable SIP, such as elements identified as part of the reasonable further progress schedules, assumptions specified in the attainment or maintenance demonstration, prohibitions, numerical emission limits, and work practice requirements; and such action is otherwise in compliance with all relevant requirements of the applicable SIP. (4) Any analyses required under this section shall be completed, and any mitigation requirements necessary for a finding of conformity shall be identified in compliance with subsection (j) of this section, before the determination of conformity is made. (i) Procedures for Conformity Determination of General Federal Actions. (1) The analyses required under this rule shall be based on the latest planning assumptions. (A) All planning assumptions (including, but not limited to, per capita water and sewer use, vehicle miles traveled per capita or per household, trip generation per household, vehicle occupancy, household size, vehicle fleet mix, vehicle ownership, wood stoves per household, and the geographic distribution of population growth) shall be derived from the estimates of current and future population, employment, travel, and congestion most recently developed by the MPO or the state agency authorized under state law to make such estimates. (B) Any revisions to these estimates used as part of the conformity determination, including projected shifts in geographic location or level of population, employment, travel, and congestion, shall be approved by the MPO or other agency authorized to make such estimates for the area. (2) The analyses required under this rule must be based on the latest and most accurate emission estimation techniques available as described below, unless such techniques are inappropriate. If such techniques are inappropriate and written approval of the EPA Regional Administrator is obtained for any modification or substitution, they may be modified or another technique substituted on a case-by-case basis or, where appropriate, on a generic basis for a specific federal agency program. (A) For motor vehicle emissions, the most current version of the motor vehicle emissions model specified by EPA for use in the preparation or revision of implementation plans in the state or area shall be used for the conformity analysis as specified below: (i) the EPA must have published in the Federal Register a notice of availability of any new motor vehicle emissions model; and (ii) a grace period of three months shall apply during which the motor vehicle emissions model previously specified by EPA as the most current version may be used. Conformity analyses for which the analysis was begun during the grace period, or no more than three years before the Federal Register notice of availability of the latest emission model, may continue to use the previous version of the model specified by EPA, if a final determination as to conformity is made within three years of such analysis. (B) For nonmotor vehicle sources, including stationary and area source emissions, the latest emission factors specified by EPA in the "Compilation of Air Pollutant Emission Factors (AP-42)" shall be used for the conformity analysis unless more accurate emissions data are available, such as actual stack test data for stationary sources which are part of the conformity analysis. (3) The air quality modeling analyses required under this rule must be based on the applicable air quality models, data bases, and other requirements specified in the most recent version of the "Guideline on Air Quality Models (Revised)" (1986), including supplements (EPA publication number 450/2-78-027R), unless: (A) the guideline techniques are inappropriate, in which case the model may be modified or another model substituted on a case-by-case basis or, where appropriate, on a generic basis for a specific federal agency program; and (B) written approval of the EPA Regional Administrator is obtained for any modification or substitution. (4) The analyses required under this rule shall be based on the total of direct and indirect emissions from the action and shall reflect emission scenarios that are expected to occur under each of the following cases: (A) the FCAA mandated attainment year or, if applicable, the farthest year for which emissions are projected in the maintenance plan; (B) the year during which the total of direct and indirect emissions from the action for each pollutant analyzed is expected to be the greatest on an annual basis; and (C) any year for which the applicable implementation plan specifies an emissions budget. (j) Mitigation of air quality impacts. (1) Any measures that are intended to mitigate air quality impacts shall be identified (including the identification and quantification of all emissions reductions claimed); and the process for implementation (including any necessary funding of such measures and tracking of such emissions reductions), and enforcement of such measures shall be described, including an implementation schedule containing explicit timelines for implementation. (2) Prior to determining that a federal action is in conformity, the federal agency making the conformity determination shall obtain written commitments from the appropriate persons or agencies to implement any mitigation measures which are identified as conditions for making conformity determinations. Such written commitment shall describe such mitigation measures and the nature of the commitment, in a manner consistent with paragraph (1) of this subsection. (3) Persons or agencies voluntarily committing to mitigation measures to facilitate positive conformity determinations shall comply with the obligations of such commitments. (4) In instances where the federal agency is licensing, permitting, or otherwise approving the action of another governmental or private entity, approval by the federal agency shall be conditioned on the other entity meeting the mitigation measures set forth in the conformity determination, as provided in paragraph (1) of this subsection. (5) When necessary because of changed circumstances, mitigation measures may be modified so long as the new mitigation measures continue to support the conformity determination in accordance with subsections (h) and (i) of this section and this paragraph. Any proposed change in the mitigation measures is subject to the reporting requirements of subsection (e) of this section and the public participation requirements of subsection (f) of this section. (6) Written commitments to mitigation measures shall be obtained prior to positive conformity determination and such commitments must be fulfilled. (7) After this implementation plan revision is approved by EPA, any agreements, including mitigation measures, necessary for a conformity determination will be both state and federally enforceable. Enforceability through the applicable SIP will apply to all persons who agree to mitigate direct and indirect emissions associated with a federal action for a conformity determination. (k) Savings Provisions. The federal conformity rules under 40 CFR, Part 51, Subpart W establish the conformity criteria and procedures necessary to meet the requirements of the FCAA sec.176(c) until such time as this conformity SIP revision is approved by EPA. Following EPA approval of this SIP revision (or a portion thereof), the approved (or approved portion of the) state criteria and procedures would govern conformity determinations, and the federal conformity regulations contained in 40 CFR, Part 93 would apply only for the portion, if any, of the state's conformity provisions that is not approved by EPA. 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 November 21, 1994. TRD-9451206 Mary Ruth Holder Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: December 12, 1994 Proposal publication date: August 9, 1994 For further information, please call: (512) 239-1970 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part IX. Commission on Jail Standards The following adopted repeals and new sections submitted by the Commission on Jail Standards will be serialized beginning in the December 6, 1994 issue of the Texas Register. The effective date of these adoptions is December 19, 1994. Chapter 260. County Correctional Centers General sec.sec.260.1-260.8 (repeal) sec.sec.260.1-260.4 (new) CCC Design, Construction and Furnishing Requirements sec.sec.260.20-260.95 (repeal) sec.sec.260.100-260.163 (new) Chapter 261. Existing Construction Rules Existing Jail Design, Construction and Furnishing Requirements sec.sec.261.1-261.88 (repeal) sec.sec.261.100-261.171 (new) Existing Lockup Design, Construction and Furnishing Requirements sec.sec.261.101-261.113, 261.115-261.183 (repeal) sec.sec.261.200-261.266 (new) sec.sec.261.300-261.361 (new) Existing Low-Risk Design, Construction and Furnishing Requirements sec.sec.261.191-261.265 (repeal) Chapter 263. Life Safety General sec.sec.263.1-263.4 (repeal) sec.sec.263.1-263.3 (new) Design and Materials sec.sec.263.10-263.23 (repeal) sec.sec.263.10-263.21 (new) Detection and Alarm Systems sec.sec.263.30-263.33 (repeal) sec.sec.263.30-263.33 (new) Plans and Drills for Emergencies sec.sec.263.40-263.44 (repeal) sec.sec.263.40-263.42 (new) Life Safety and Emergency Equipment sec.sec.263.50-263.57 (repeal) sec.sec.263.50-263.56 (new) Records and Reports sec.sec.263.70-263.71 (repeal) sec.sec.263.70-263.71 (new) Additional Information/Recommendations sec.sec.263.80-263.83 (repeal) Part XIII. Texas Commission on Fire Protection The following adopted repeal, amemdments and new sections submitted by the Texas Commission on Fire Protection will be serialized beginning in the December 6, 1994 issue of the Texas Register. The effective date of these adoptions is December 14, 1994. Chapter 521. Fire Extinguisher Rules sec.sec.521.6, 521.7, 521.10, 521.21 (amendments) Chapter 541. Fire Sprinkler Rules sec.sec.541.7, 541.13, 541.14, 541.18, 541.19, 541.20, 541.21, 541.22, 541.23 (new and amendment) sec.sec.541.19, 541.20-541.22 (repeal) TITLE 40. SOCIAL SERVICE AND ASSISTANCE Part I. Texas Department of Human Services Chapter 50. Day Activity and Health Services The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.50. 901-50.904, 50.1901-50.1903, 50.2901, 50.2903-50.2910, 50.3901-50.3915, 50. 4901, 50.4902, and 50.5901; and adopts new sec.sec.50.1-50.5, 50.101-50.105, 50. 201, 50.202, 50.301, 50.302, 50.401-50.410, 50.501, 50.502, 50.601, 50.701-50. 704, and 50.801-50.803 in its day activities and health services chapter. New sec.sec.50.2, 50.101, 50.301, 50.302, 50.403, and 50.703 are adopted with changes to the proposed text as published in the September 16, 1994, issue of the Texas Register (19 TexReg 7237). The repeal of sec.sec.50.901-50.904, 50. 1901-50.1903, 50.2901, 50.2903-50.2910, 50.3901-50.3915, 50.4901, 50.4902, and 50.4901; and new sec.sec.50.1, 50.3-50.5, 50.102-50.105, 50.201, 50.202, 50.401, 50.402, 50.404-50.410, 50.501, 50.502, 50.601, 50.701-50.703, and 50.801-50. 803 are adopted without changes to the proposed text and will not be republished. The justification for the repeals and new sections is to incorporate some day activity and health services rules into Chapter 98, Adult Day Care Facilities; create new rules to clarify current policy; and make minor clarifications to the remaining day activity and health services rules. These changes result from the September 1, 1993, transfer from the Texas Department of Health to DHS of responsibility for the licensure of adult day care and adult day health care facilities. DHS also will be adopting related amendments, repeals, and new sections in Chapter 98, Adult Day Care Facilities. The repeals and new sections will function by merging the licensure rules concerning day activity and health services into one set of rules. During the public comment period, DHS received comments from Mother Earth Adult Day Care, Adult Day Care Association of Texas, the University of North Texas Health Science Center at Fort Worth, Seniors We Are, Inc., Madison Adult Day Care Center, the Texas Dietetic Association, and several individuals. A summary of the comments and DHS's responses follow: Comment concerning sec.50.1: One commenter stated that the definition for dietitian consultant should be added to this section. Response: The definition for dietitian consultant is included in Chapter 98, Adult Day Care Facilities. DHS does not agree that it is necessary to add to this definition and is adopting this section without change. Comment concerning sec.50.4(3): One commenter stated that to ensure the provision of high quality nutrition, the dietitian should assist the nurse in developing the health assessment/plan of care. Response: DHS disagrees with this comment. DHS believes that the dietitian is fulfilling the requirements to ensure provision of high quality nutrition through the dietary consultation requirement, and it would be a duplication to include this in the health assessment/plan of care. DHS is adopting this paragraph without change. Comment concerning sec.50.4(4)(B): One commenter stated that DHS should provide a definition for social activities that program staff responsible for developing activities could use as a guideline. Response: Section 5750, Other Supportive Services, and Appendix IV, Examples of DAHS Activities, in the DAHS Provider Manual contain examples of different social activities. DHS is adopting this subparagraph without change. Comment concerning sec.50.4(5)(A): One commenter stated that client's family should have the option of transporting the client to and from the facility depending on the client's needs. Response: DHS agrees with this comment and has added procedures to the DAHS Provider Manual that allow this. Comments concerning sec.50.202(3)(D): 1) One commenter stated that staff qualifications should clarify RN/LVN requirements for insertion and maintenance of naso-gastric (ng) or other feeding devices. Response: DHS disagrees with this comment. This section addresses medical eligibility criteria, not staff qualifications. However, the nurse uses his medical professional training within the scope of his license to perform these requirements. 2) One commenter stated that performing gastric and ng tube feedings would require more skilled staff. The present reimbursement rate would not cover additional skilled staff. Response: DHS disagrees with this comment. The current reimbursement rate based on cost reports has been stable for several years. 3) One commenter stated that for safety reasons, clients should not be transported with untrained staff if they have gastric and ng tubes. Response: DHS disagrees with this comment. Each client must be assessed by the DAHS facility nurse to determine how transportation needs can be met. DHS is adopting this subparagraph without change. Comment concerning sec.50.301(a): One commenter stated that there is a conflict between this subsection and sec.98.42(a)(2)(D). The commenter also wanted to know if the nurse was required to be on duty for ten hours when the facility had to be open ten hours per day. Response: DHS agrees that this subsection and sec.98.42(a)(2)(D) are in conflict. Therefore, DHS is deleting sec.50.301(a) and has addressed this comment in sec.98.42(a)(2)(D). Comments concerning sec.50.301(b): Several commenters stated that the term "enrollment" should be changed to "attendance" because all facilities have to over enroll in an effort to ensure adequate and actual attendance. Response: DHS agrees with the comments. The term "enrollment" is changed to "attendance." In addition, DHS has changed attendance from 61 to 60 because it was published in error. Comments concerning sec.50.301(c): Several commenters stated that the facility nurse should be allowed to be absent from the facility up to two hours without creating undue hardship on clients. Response: DHS does not agree with these comments. However, because this requirement was also published in Chapter 98, DHS is deleting subsection (c) and has addressed these comments in Chapter 98. As a result of the comments concerning sec.50.301, the rule has been reformatted. Comment concerning sec.50.401: One commenter stated that if a facility could not meet the medical or transportation needs of the client, the facility should not be given an unjust burden to meet one client's needs, often at regional nurse discretion. Also, if a client is disruptive to the facility or is a potential danger to self, staff, or other clients, the facility should refuse to serve such a client. Additionally, when a client's needs cannot be met, the facility should be able to determine if it can meet a client's needs to maintain safety for all clients. Response: DHS disagrees with this comment and is adopting this section without change. The DHS regional nurse will give prior approval for DAHS services only if the client meets or exceeds the medical criteria established for DAHS, as specified in sec.50.202 of this title (relating to Medical Criteria). New sec.50.409 specifies procedures for suspending services to a client who threatens the health and safety of himself or others. DHS will develop procedures for facilities to request a meeting with DHS when it appears a client may not be appropriate for services. Comments concerning sec.50.403(a): Several commenters stated that caseworkers cannot be relied upon to refer clients to the program. Marketing studies indicate the majority of new participants are admitted to adult day care as the result of word-of-mouth and publicity activities. Other commenters stated that this requirement would be an economic cost to small business that would prevent starting adult day care facilities which are primarily owned by economically deprived and minority persons. The commenters also stated that this rule is overly burdensome to small businesses which invest $40,000-$50, 000 to build a center and meet the facility requirements of DHS. Response: DHS agrees with the comments and is deleting subsection (a). As a result, subsection (d) has been moved to subsection (a) and other subsections are renumbered. Comment concerning sec.50.409(a)(3): One commenter stated that services to a client should not be suspended when a client goes into the hospital because not all hospitalizations are long term. Response: DHS disagrees with this comment and is adopting this paragraph without change. Anytime a client goes into the hospital, nursing home, etc. (regardless if it is overnight) services to a client should be suspended because the client is not receiving services at the facility. Comment concerning sec.50.601(e): One commenter requested that facilities be allowed to use their own transportation and attendance forms if prior approval is given by DHS. Response: While DHS currently disagrees with this comment, DHS will review this issue further. Daily transportation and attendance forms were developed to provide a uniform and consistent method of documenting service delivery. Because financial and administrative exceptions are applied to the correct completion of these forms, it is very important that these forms be used. In addition to changes resulting from public comments, DHS is adopting sec.sec.50.2(a)(1) and 50.101(1) with a change to correct the name of DHS's Licensing section and sec.50.2(b) to change the word "application" to "approval letter." In sec.50.302(b), DHS is deleting paragraph (3) because it is already addressed in sec.98.42. DHS is adopting sec.50.403(b) with a change in the order of paragraphs (1) and (2) and sec.50.403(c)(1) with a change in the order of subparagraphs (A) and (B). Also, sec.50.403(d) is adopted with a correction regarding the number of days, and sec.50.704(1) is adopted with a change that makes the paragraph consistent with the other paragraphs. Program Overview 40 TAC sec.sec.50.1-50.5 The new sections 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The new sections implement sec.sec.22.001-22.024 and sec.sec.32.001-32.041 of the Human Resources Code. sec.50.2. General Requirements for Participation. (a) To contract with the Texas Department of Human Services (DHS) to provide day activity and health services (DAHS), the facility must: (1) be licensed by DHS's Licensing section as an adult day care facility; and (2) meet all DAHS program standards. (b) The facility must also participate in the Child and Adult Care Food Program (CACFP). The facility must submit documentation of participation in the CACFP to DHS. Documentation consists of a copy of the CACFP agreement and/or a copy of the approval letter for participation in the CACFP. 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 November 23, 1994. TRD-9451347 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: January 1, 1995 Proposal publication date: September 16, 1994 For further information, please call: (512) 450-3765 Contracting 40 TAC sec.sec.50.101-50.105 The new sections 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The new sections implement sec.sec.22.001-22.024 and sec.sec.32.001-32.041 of the Human Resources Code. sec.50.101. Effective Date of Contract. The effective date of a day activity and health services contract is the date the Texas Department of Human Services (DHS) receives the license or license notice from: (1) DHS's Licensing section; or (2) the facility. 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 November 23, 1994. TRD-9451348 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: January 1, 1995 Proposal publication date: September 16, 1994 For further information, please call: (512) 450-3765 Eligibility 40 TAC sec.50.201, sec.50.202 The new sections 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The new sections implement sec.sec.22.001-22.024 and sec.sec.32.001-32.041 of the Human Resources Code. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 23, 1994. TRD-9451349 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: January 1, 1995 Proposal publication date: September 16, 1994 For further information, please call: (512) 450-3765 Facility Staffing Requirements 40 TAC sec.50.301, sec.50.302 The new sections 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The new sections implement sec.sec.22.001-22.024 and sec.sec.32.001-32.041 of the Human Resources Code. sec.50.301. Nurse Requirements. When attendance at the facility exceeds 60 clients, both a registered nurse and a licensed vocational nurse must be present at the facility at least eight hours per day. sec.50.302. Housekeeper/driver. (a) A facility may employ a part-time or full-time housekeeper. (b) A facility may employ a part-time or full-time driver. The driver must: (1) operate the facility's vehicles in a safe manner; (2) maintain accurate daily transportation and mileage records, and records of expenses for purchase of gas and oil; and (3) receive adult cardiopulmonary resuscitation (CPR) certification. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 23, 1994. TRD-9451350 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: January 1, 1995 Proposal publication date: September 16, 1994 For further information, please call: (512) 450-3765 Service Requirements 40 TAC sec.sec.50.401-50.410 The new sections 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The new sections implement sec.sec.22.001-22.024 and sec.sec.32.001-32.041 of the Human Resources Code. sec.50.403. Facility-Initiated Referrals. (a) An applicant or his physician may contact a facility to request an immediate placement. (b) The applicant may be admitted to a day activity and health services facility as soon as verbal physician's orders are obtained if he appears to: (1) be Medicaid eligible; (2) have an immediate need for placement as defined by the Texas Department of Human Services (DHS); and (3) meet the medical/functional need criteria based on the information collected on DHS's Client Health Assessment/Plan of Care form. (c) When immediate placement is requested: (1) the facility interviews the applicant to determine whether he: (A) appears to be Medicaid eligible. The facility determines Medicaid eligibility by reviewing the information on the applicant's Medical Care Identification Card; and (B) meets the criteria for immediate placement; (2) the nurse: (A) conducts a health assessment/plan of care to determine whether the applicant appears to have a medical need for the service. The nurse determines medical need by completing DHS's Client Health Assessment/Plan of Care form; and (B) obtains verbal or written physician orders, if the applicant appears to meet the medical/functional need criteria; (3) the facility verbally notifies the DHS caseworker or intake unit of the immediate placement the day the applicant contacts the facility. The facility follows up the notification in writing within seven days using DHS's Case Information form. This verbal notification is a request for community care for aged and disabled (CCAD) services. (d) The facility must request written prior approval for the applicant from the regional nurse within 30 days from the date of the physician orders. (e) If the facility submits documentation that fails to support the prior approval, the facility must submit any additional information the regional nurse requests. This additional information must be postmarked within seven days of the date of request, unless the regional nurse gives written permission for an extension. (f) If the facility fails to submit prior approval forms or additional documentation within required time frames, or if the additional documentation is not adequate, the regional nurse cancels the facility-initiated prior approval and the facility is not reimbursed for services. (g) If DHS's Client Health Assessment/Plan of Care form or Physician's Order for Day Activity and Health Services form is missing, or if any of the critical omissions or errors stated in paragraphs (1)-(11) of this subsection have occurred in the required documentation, the facility cannot obtain prior approval. (1) The nurse fails to sign or date DHS's Client Health Assessment/Plan of Care form or omits the registered nurse/licensed vocational nurse credentials that should follow his signature. (2) Documentation on DHS's Client Health Assessment/Plan of Care form does not support the medical eligibility criteria specified in sec.50.202 of this title (relating to Medical Criteria). (3) Items A, B, in Sections II and III of DHS's Client Health Assessment/Plan of Care form are not completed or completed incorrectly and medical need cannot be determined. (4) For renewal of prior approval, DHS's Client Health Assessment/Plan of Care form has a date that is earlier than 30 days before the end of the prior approval period. (5) DHS's Physician's Order for Day Activity and Health Services form does not include the MD or DO credential of the physician who signed the form. (6) DHS's Physician's Order for Day Activity and Health Services form does not include the license number of the physician who signed it. (7) The physician who signed the order is excluded from participation in Medicare or Medicaid. (8) The physician's signature is not on DHS's Physician's Order for Day Activity and Health Services form. (9) The physician's signature date is missing or illegible and the facility's stamped date is missing from DHS's Physician's Order for Day Activity and Health Services form. (10) The facility's stamped date used instead of the physician's date on DHS's Physician's Order for Day Activity and Health Services form does not include the provider agency's name, abbreviated name, or initials. (11) For renewal of prior approval, the physician's order has a date that is earlier than 30 days before the end of the prior approval period. 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 November 23, 1994. TRD-9451351 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: January 1, 1995 Proposal publication date: September 16, 1994 For further information, please call: (512) 450-3765 Billing 40 TAC sec.50.501, sec.50.502 The new sections 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The new sections implement sec.sec.22.001-22.024 and sec.sec.32.001-32.041 of the Human Resources Code. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 23, 1994. TRD-9451352 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: January 1, 1995 Proposal publication date: September 16, 1994 For further information, please call: (512) 450-3765 Recordkeeping Requirements 40 TAC sec.50.601 The new section 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 new section implements sec.sec.22.001-22.024 and sec.sec.32.001-32.041 of the Human Resources Code. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 23, 1994. TRD-9451353 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: January 1, 1995 Proposal publication date: September 16, 1994 For further information, please call: (512) 450-3765 Monitoring/Quality Assurance/Audits 40 TAC sec.sec.50.701-50.704 The new sections 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The new sections implement sec.sec.22.001-22.024 and sec.sec.32.001-32.041 of the Human Resources Code. sec.50.703. Administrative Errors. Administrative errors include, but are not limited to, the following: (1) the facility: (A) leaves the month and year of service blank at the top of the Texas Department of Human Services' (DHS's) Daily Attendance Record form, but the month and year can be verified elsewhere on the same form. DHS applies the error to the total number of units reimbursed for the billing period; (B) enters a date of signature on DHS's Daily Attendance Record form that is before the date of the last day services are provided. DHS applies the error to the total number of units reimbursed after the signature date; (C) fails to sign DHS's Daily Attendance and/or Daily Transportation Record form. DHS applies the error to the total number of units reimbursed for the billing period; (2) daily transportation records indicate client was transported to the facility and daily attendance records do not list client as being in the facility. DHS applies the error to the total number of units reimbursed for the dates of the billing period in question. 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 November 23, 1994. TRD-9451354 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: January 1, 1995 Proposal publication date: September 16, 1994 For further information, please call: (512) 450-3765 Sanctions 40 TAC sec.sec.50.801-50.803 The new sections 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The new sections implement sec.sec.22.001-22.024 and sec.sec.32.001-32.041 of the Human Resources Code. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 23, 1994. TRD-9451360 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: January 1, 1995 Proposal publication date: September 16, 1994 For further information, please call: (512) 450-3765 Program Overview 40 TAC sec.sec.50.901-50.904 The repeals 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The repeals implement sec.sec.22.001-22.024 and sec. sec.32.001-32.041 of the Human Resources Code. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 23, 1994. TRD-9451339 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: January 1, 1995 Proposal publication date: September 16, 1994 For further information, please call: (512) 450-3765 Eligibility Requirements 40 TAC sec.sec.50.1901-50.1903 The repeals 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The repeals implement sec.sec.22.001-22.024 and sec. sec.32.001-32.041 of the Human Resources Code. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 23, 1994. TRD-9451340 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: January 1, 1995 Proposal publication date: September 16, 1994 For further information, please call: (512) 450-3765 Provider Eligibility 40 TAC sec.sec.50.2901, 50.2903-50.2910 The repeals 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The repeals implement sec.sec.22.001-22.024 and sec. sec.32.001-32.041 of the Human Resources Code. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 23, 1994. TRD-9451337 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: January 1, 1995 Proposal publication date: September 16, 1994 For further information, please call: (512) 450-3765 Standards of Operation 40 TAC sec.sec.50.3901-50.3915 The repeals 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The repeals implement sec.sec.22.001-22.024 and sec. sec.32.001-32.041 of the Human Resources Code. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 23, 1994. TRD-9451333 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: January 1, 1995 Proposal publication date: September 16, 1994 For further information, please call: (512) 450-3765 Recipients' Rights 40 TAC sec.50.4901, sec.50.4902 The repeals 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 provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The repeals implement sec.sec.22.001-22.024 and sec. sec.32.001-32.041 of the Human Resources Code. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 23, 1994. TRD-9451345 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: January 1, 1995 Proposal publication date: September 16, 1994 For further information, please call: (512) 450-3765 Utilization Review 40 TAC sec.50.5901 The repeal is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The repeal implements sec.sec.22.001-22.024 and sec. sec.32.001-32.041 of the Human Resources Code. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 23, 1994. TRD-9451346 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: January 1, 1995 Proposal publication date: September 16, 1994 For further information, please call: (512) 450-3765 The following adopted repeals, amemdments and new sections submitted by the Texas Department of Human Services will be serialized beginning in the December 6, 1994 issue of the Texas Register. The effective date of these adoptions is January 1, 1995. Chapter 98. Adult Day Care Facilities Subchapter A. Introduction sec.sec.98.1, 98.2 (amendments) Subchapter B. Application Procedures (new and amendment) sec.sec.98.11-98.21 (new and amendments) sec.sec.98.15-98.18, 98.20 (repeal) Subchapter C. Standards for Adult Day Care Facilities sec.sec.98.41-98.44 (new and amendments) sec.sec.98.42, 98.43 (repeals) Subchapter D. Facility Construction Procedures sec.98.61 (amendment) Subchapter E. Inspections, Surveys, and Visits sec.sec.98.81, 98.82 (amendments) Subchapter F. Enforcement sec.sec.98.101, 98.102, 98.104 (repeals) sec.sec.98.102-98.105 (new and amendments) Subchapter G. Miscellaneous Provisions sec.98.121 (repeal) sec.sec.98.122-98.123 (new and amendment)