ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part II. Texas Ethics Commission Chapter 32. Activity Reports by a Lobbyist Subchapter C. Detailed Information to be Reported 1 TAC sec.sec.32.51, 32.53, 32.55 The Texas Ethics Commission (the commission) adopts amendments to sec.sec.32.51, 32.53, and 32.55, concerning the filing of activity reports by a lobbyist with the commission, without changes to the proposed text as published in the September 30, 1994, issue of the Texas Register (19 TexReg 7747). As amended, these rules will remove the listing of a street address from the reporting requirements of a filer required to report the "place" of a lobby expenditure when making a detailed report. The filer will continue to report the name of the hotel, restaurant, club, or other business where lodging, food and beverages, or entertainment was provided, and will report the city and state where the business is located. Due to this adopted action, filers will no longer have to list a street address when reporting the "place" of a lobby expenditure when making a detailed report. No comments were received regarding adoption of the repeal. The amendments are adopted under Texas Government Code, Chapter 571, sec.571. 062, which provides the commission with the authority to promulgate rules to implement laws administered and enforced by the commission. The Government Code, sec.305.0061 (relating to Detailed Reports) is affected by these amendments. 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 December 6, 1994. TRD-9451930 Jim Mathieson Assistant General Counsel Texas Ethics Commission Effective date: December 27, 1994 Proposal publication date: September 30, 1994 For further information, please call: (512) 463-5800 TITLE 4. AGRICULTURE Part II. Texas Animal Health Commission Chapter 43. Tuberculosis Subchapter A. Cattle 4 TAC sec.43.2 The Texas Animal Health Commission adopts an amendment to sec.43.2, concerning tuberculosis testing requirements for cattle entering from a foreign country, with the exception of cattle moving in-bond from Mexico; the movement of sexually intact cattle from a foreign country; the movement of steers and spayed heifers, including Holstein and Holstein cross steers and spayed heifers, from Mexico; and the testing of rodeo stock from Mexico, with changes to the proposed text as published in the October 7, 1994, issue of the Texas Register (19 TexReg 7968). The changes add language to Subsections (d)(1) and (2) which clarifies that Mexican States fail to meet the prescribed requirements within the specified time frames will not be able to export cattle into Texas. The amendment is necessary because of the number of tuberculosis-infected animals disclosed at slaughter among cattle imported into the United States from Mexico. The regulation extends the minimum waiting period for a tuberculosis retest on sexually intact cattle entering from a foreign country with no recognized comparable tuberculosis status from 60 days to 120 days. Moreover, the regulation allows this class of cattle to enter Texas for feeding for slaughter in a quarantined feedlot if tested at the port-of-entry under the supervision of the port veterinarian, moved to the feedlot in sealed trucks, and "S"-branded on arrival. These measures are necessary to minimize the risk of disease from sexually intact animals and still allow this class of animals to be fed and slaughtered in the U.S. With regard to steers and spayed heifers entering from Mexico, the regulation provides an incentive to Mexican states implementing an effective tuberculosis eradication program. Since bovine tuberculosis must be controlled in Mexico in order to safeguard Texas cattle, the regulation phases in requirements that must be met by each Mexican State within prescribed time periods for cattle to continue to be exported into Texas from that State. The Commission will determine whether the requirements are met, based on recommendation of the Bi- National Committee. Since the incidence of tuberculosis in Holstein and Holstein-cross steers and spayed heifers is significantly higher than in other breeds, that class of cattle is prohibited from entering Texas. In order to reduce the risk of tuberculosis spread from cattle from Mexico used as rodeo stock, those cattle must be tested every twelve months. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, which provides the Texas Animal Health Commission with the authority to adopt rules and sets forth the duties of this Commission to control disease. The amendment implements the Texas Agriculture Code, sec.161.081 and sec.162. 003, which allows the Commission to regulate the importation and testing of cattle and establish rules regarding TB testing. sec.43.2. Interstate Movement Requirements. (a)-(b) (No change.) (c) All sexually intact cattle, from any foreign country or part thereof with no recognized comparable Tuberculosis status: (1) to be held for purposes other than for immediate slaughter or feeding for slaughter in a quarantined feedlot, shall be under quarantine on the first premise of destination in Texas pending a negative tuberculosis test no earlier than 120 days and no later than 180 days after arrival. The test will be performed at the owner's expense; or, (2) when destined for feeding for slaughter in a quarantined feedlot, sexually intact cattle must be tested at the port-of-entry into Texas under the supervision of the port veterinarian. These cattle may be moved to the quarantined feedlot only in sealed trucks with a permit issued by TAHC or USDA personnel and shall be "S" branded upon arrival at the feedlot. (d) Steers and spayed heifers from Mexico may enter as follows: (1) From states that have been determined by the Commission, acting on the recommendation of the Bi-National Committee, to have fully implemented the Control/Preparatory Phase of the Mexican Tuberculosis Eradication Program by September 1, 1995-steers and spayed heifers that have been tested negative for tuberculosis in accordance with the Norma Official Mexicana (NOM) within 60 days prior to entry into the United States may enter without further restriction. States that have not met this requirement by September 1, 1995, may not import steers and spayed heifers into Texas. (2) From states that have been determined by the Commission, acting on the recommendation of the Bi-National Committee, to have fully implemented the Eradication Phase of the Mexican Tuberculosis Eradication Program by March 1, 1997-steers and spayed heifers that have been tested negative for tuberculosis in accordance with the Norma Official Mexicana (NOM) within 60 days prior to entry into the United States or that originate from herds equal to U.S. Accredited TB-free herds that are moved directly from the herd of origin across the border as a single group and not commingled with other cattle prior to arriving at the border may enter the state without further restriction. States that have not met this requirement by March 1, 1997, may not import steers and spayed heifers into Texas. (3) From states that have been determined by the Commission, acting on the recommendation of the Bi-National Committee, to have achieved Accredited Free status-steers and spayed heifers may move directly into the state without testing or further restrictions provided they are moved as a single group, and not commingled with other cattle prior to arriving at the border. (4) Holstein and Holstein cross steers, and Holstein and Holstein cross spayed heifers from Mexico are prohibited from entering Texas regardless of test history. (e) Cattle entering Texas from Mexico for the purpose of feeding and return to Mexico for slaughter under the Federal in-bond program are exempt from these requirements. (f) Rodeo stock from Mexico shall be tested for tuberculosis by a U. S. accredited veterinarian or under the supervision of a USDA/APHIS port veterinarian within 12 months prior to their utilization as rodeo or roping stock, and retested for tuberculosis every 12 months thereafter. (g) All other cattle from foreign countries, foreign states, or areas within foreign countries defined by the Commission, with comparable tuberculosis status would enter by meeting the requirements for a state with similar status as stated in subsections (a) and (b) of this 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 December 6, 1994. TRD-9451976 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: March 1, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 719-0714 TITLE 16. ECONOMIC REGULATIONS Part I. Railroad Commission of Texas Chapter 5. Transportation Division Subchapter M. Motor Bus Companies 16 TAC sec.5.217 The Railroad Commission of Texas adopts an amendment to sec.5.217 concerning insurance, without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7870). The amendment is adopted in order to clarify that motor bus companies are required to maintain worker's compensation insurance coverage, as required by the Texas Motor Bus Act, and may not secure accidental insurance coverage as an alternative to worker's compensation coverage. The three public comments received regarding this rule opposed its adoption. One of the comments stated that although the Motor Bus Act does not currently allow bus companies to carry accidental insurance coverage in lieu of workers' compensation insurance, the Commission should take no action on the rule until the Texas legislature has had the opportunity to amend the Texas Motor Bus Act to provide for alternatives to workers' compensation coverage. Another comment stated that workers' compensation costs have increased dramatically and are an unnecessary financial burden on small carriers. That comment included a belief that there is room to interpret the language of the Motor Bus Act to allow for alternatives to workers' compensation insurance, and recommended that the Commission not adopt the proposed rule. The remaining comment noted that the maintenance of workers' compensation coverage materially increases the carrier's expenses, retards the growth of bus operations, and that the Interstate Commerce Commission has no similar requirements of workers' compensation coverage for motor bus companies. The comment further stated that the commission is given broad powers by the Motor Bus Act to regulate motor bus operations, and matters of insurance could be addressed by the commission without specific direction from the legislature. The Commission agrees with the comment that the Motor Bus Act requires motor bus companies to maintain workers' compensation insurance coverage for their employees, but disagrees that the Commission should take no action on the rule pending possible action by the legislature. The Commission agrees that the Motor Bus Act gives the commission broad powers to regulate the activities of motor bus companies. However, because the Act explicitly states that bus companies shall maintain workers' compensation insurance coverage for their employees, the commission disagrees that it has the power to allow alternative types of insurance coverage. The Texas Tour Bus Association commented against the adoption of this amendment. The amendment is adopted pursuant to the Texas Motor Bus Act, Texas Civil Statutes, Article 911a, sec.sec. 4(a) and 11, which authorize the commission to prescribe rules and regulations for the operations of motor bus companies, and which require workers' compensation insurance coverage either as provided by the workers' compensation laws of the state of Texas or in a reliable insurance company approved by the commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on December 5, 1994. TRD-9451892 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: December 26, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-7094 TITLE 16. ECONOMIC REGULATION Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Telephone 16 TAC sec.23.94 The Public Utility Commission of Texas adopts new sec.23.94 with changes to the text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4681). New sec.23.94 establishes structured procedures and pricing guidelines that a small local exchange carrier may use to expedite approval of rates for new and experimental services and rate changes. A small local exchange carrier, also known as a SLEC, is defined as a local exchange carrier with 31,000 or fewer access lines, including affiliates' access lines providing local access service, within the State of Texas or a telephone cooperative, regardless of its size. The proposed rule provides definitions of terms used in the section, filing requirements and timelines, notice requirements, pricing and rate change guidelines, and establishes those services and rates affected and the procedure to be followed for approval of the filings. The rule is adopted pursuant to the following procedures. Questions with a request for comments were published on December 11, 1992, at 17 TexReg 8770-71. A rule was drafted incorporating comments resulting from publication, from a February 22, 1993, workshop, and from Conference Committee Senate Bill 498. Suggestions from a second workshop held on May 3, 1994, were also included. Publication was approved at the June 8, 1994, final order meeting, and new sec.23.94 was published in the June 17, 1994, issue of the Texas Register (19 TexReg 4681). Comments were received from seven parties: Office of Public Utility Counsel (OPC), MCI Telecommunications Corporation (MCI), Texas Association of Long Distance Telephone Companies (TEXALTEL), Texas Statewide Telephone Cooperative, Inc. (TSTCI), AT&T Communications of the Southwest, Inc. (AT&T), Texas Telephone Association (TTA), Lufkin-Conroe Telephone Exchange, Inc. TSTCI and AT&T also provided reply comments. TSTCI, AT&T, and TTA commented on the initial recommendation filed on October 19, 1994. The commission asked whether it has the authority to promulgate sec.23.94 pursuant to sec.sec.16, 18, and 43B of PURA. OPC and MCI questioned the commission's authority. TEXALTEL and TSTCI believe the commission is authorized to promulgate the rule. OPC believes that the commission has no statutory authority and, therefore, commented solely on this question. OPC maintains that the rule's definition of a SLEC, information contained in the letter of intent, and information contained in the notice conflicts with PURA sec.43B. OPC believes that, while sec.18 grants the commission authority to promulgate rules and establish procedures to determine the level of competition in markets and grant regulatory flexibility where there is significant competition, sec.18(e) requires an evidentiary hearing to determine the level of competition. MCI states that the commission cannot create a new definition of a SLEC and that sec.18(a) addresses regulatory flexibility due to competition, not administrative burden. MCI adds that the commission can address the concern of SLECs and cooperatives through sec.18(f). TSTCI states that streamlined requirements are one way to equalize opportunities for small companies to offer new services to their customers in a more timely and cost effective manner. TSTCI believes that a lack of regulatory flexibility prevents SLECs from providing new services and fulfilling universal service obligations. It maintains that sec.43B is the Legislature's implied approval that streamlined regulation is appropriate for small telephone companies. In its reply comments, TSTCI maintains that sec.16(a) gives the commission power to relax its rules in cases involving other than major rate changes. Furthermore, sec.18 allows the commission to provide an appropriate mix of regulatory mechanisms. TEXALTEL adds that the language of PURA is unclear about whether the commission can deny a request for a hearing if a SLEC has requested a rate increase or restructuring of 2.5%. The commission relies on its sec.16 and sec.18 authority for promulgation of sec.23.94. Pursuant to sec.16 the commission designs sec.23.94 to facilitate the administrative process of filing rate decreases and minor rate increases for small local exchange companies (SLECs). The rule defines a SLEC as any LEC with less than 31,000 access lines or any telephone cooperative. However, there are other characteristics of a SLEC beyond size. These include whether the carrier is customer-owned or locally-owned and whether the carrier serves rural areas. Therefore, the commission amends the proposal so that the section is also available to companies with fewer than 300,000 access lines, if the commission finds following a hearing that use by the company accomplishes the rule's purpose. Section 16 grants the commission significant general power to regulate the business of utilities and to affect PURA's expressed powers. Section 16 also confers upon the commission the broader implied powers necessary and convenient to the exercise of the general and express powers. The commission is expressly authorized by sec.16 to "make and enforce rules reasonably required in the exercise of its powers and jurisdiction." In promulgating sec.23.94 the commission is not promulgating rules for sec.43B which expressly limits application to local exchange companies that are cooperatives or have fewer than 5,000 access lines. The commission notes that sec.43B is not the exclusive means by which small local exchange companies can accomplish commission filings. Section 43B(e) explicitly states that "[t]his section does not prohibit a local exchange company from filing for a rate change under any other applicable section of this Act." The 5,000 access line limitation required by sec.43B, therefore, is inapplicable to sec.23.94. The commission relies on its sec.16 authority to provide regulatory relief to SLECs limited to rate changes that do not reach the "major" rate change threshold. The commission promulgates the provisions applicable to new and experimental services pursuant to sec.18. Section 18(a) pronounces the state's telecommunications policy as one that is evolving in a environment faced with not solely competitive enterprises and markets but also technical advancements and federal judicial and administrative actions. Section 18(a) declares that the changes cannot be addressed by traditional regulatory rules, policies, and principles and mandates the formulation of new rules, policies, and principles. The commission, therefore, is bestowed with the authority and power to carry out the sec.18(a) policy: "to protect the public interest in having adequate and efficient service available to all citizens at just, fair, and reasonable rates (emphasis added)." In sec.18(b) "for the purpose of carrying out the public policy above stated and of regulating rates, operations, and services so that such rates may be just, fair, and reasonable, and the services adequate and efficient," the commission is granted exclusive original jurisdiction over the business and property of all telecommunications utilities in the state. Moreover, sec.18(f) authorizes the commission to promulgate rules and establish procedures "which allow the expedited introduction of, the establishment and adjustment of rates for, and the withdrawal of" new or experimental services or promotional rates. The commission asserts that sec.18(b) and sec.18(f) do not require evidentiary hearings, unlike sec.18(e)(1), in order to achieve the sec.18(a) policy. New sec.23.94 strives to lower costs for SLECs by eliminating the need for expensive filings and supporting studies, for which the SLECs' customers ultimately pay. The commission determines that the rule's simplified process for filing tariffs is reasonable and appropriate to afford consumers the benefit of the services at lower costs. Otherwise, while the absolute cost of a tariff filing may be similar for a LEC or a SLEC, the cost for a SLEC is spread out over a smaller subscriber base. An individual customer of a SLEC bears a higher cost for the filing. LEC tariff filings also produce significantly greater revenues based on their larger subscriber base to further offset costs. For a SLEC the cost incurred by merely processing the filing could be a larger percentage of the revenues expected from the new tariff. The rule also expedites the SLEC's ability to provide their subscribers new and experimental services by allowing them to mirror rates that have undergone commission scrutiny. LECs can capture efficiencies that the SLECs cannot. Requiring that cost studies be performed by SLECs before the introduction of new and experimental studies would further delay the introduction and increase the cost of those services. The commission asked whether administrative review, without opportunity for review by the Commissioners is an appropriate process for approval of the services and rates addressed by the rule. As qualified by their positions, MCI, TEXALTEL, and TSTCI believe that administrative review is appropriate. AT&T, however, states that the rule must consider the impact of regulatory flexibility on competition and should not insulate SLECs from rules promulgated to promote competition. MCI states that, if there are no disputed questions of fact or law, a SLEC application can be reviewed administratively by an ALJ. MCI adds that the rule should be clarified to provide that once an application is docketed based on a valid complaint the application is removed from the administrative review process. TEXALTEL does not oppose administrative review if adequate safeguards for notice to affected parties and opportunities for comment are provided. TSTCI believes the rule is appropriate because sec.23.94 deals only with new and experimental services and rate changes that do not reach major rate case status. Additionally, according to TSTCI, sec.23.94 provides an appeal mechanism if the filing concerns customers who incur charges. TSTCI notes that in 1991 the Legislature amended sec.16(a) to permit the commission to delegate final decision-making authority to hearings examiners in proceedings other than major rate changes and where there were no contested issues of fact or law. Pursuant to the commission's authority in sec.16(a) to establish by rule those procedures that the commission will delegate to administrative law judges or hearings examiners, the commission provides for the approval of sec.23.94 SLEC filings without review by the Commissioners. New sec.23.94 defines those procedures as SLEC applications for new services, experimental services, and rate changes that pursuant to sec.43(b) are not "major changes." Moreover, sec.23.94 is revised so that an affected person with a justiciable interest that may be adversely affected by the outcome of the proceeding can docket an application, including those who believe that the rule is anticompetitive. Section 23.94 is further revised to permit docketing by General Counsel upon a good cause showing, including the fact that the SLEC is on the over-earning monitoring list. Explicit language is added to clarify that once docketing is requested the application is removed from administrative review. The commission sought comment about whether it could restrict, by rule, the right of a single individual, General Counsel, or the Office of Public Utility Counsel to obtain a hearing on a rate change. MCI and AT&T opposed the rule's restriction on granting single persons the right to a hearing. TTA and TSTCI approved the rule's limits. TEXALTEL believes that PURA is ambiguous on this point and has no opinion on the commission's authority. Commenters also proposed changes to this administrative review subsection. TSTCI does not believe the rule restricts the right of a single individual, General Counsel, or OPC to obtain a hearing on a rate change since any party may file a sec.42 complaint against the utility. Moreover, sec.43B contains provisions that require the commission to review an application if the commission receives a complaint signed by 5.0% of affected customers. Since the Legislature previously adopted such language, TSTCI believes the commission has the authority to reasonably limit the ability of individuals to intervene. In its reply comments, TSTCI maintains that sec.23.94 in no way precludes any party from instituting a complaint against a company under sec.42. TSTCI objects to the claim that the rule may violate due process under sec.43(c) because sec.43(c) applies to major rate changes while sec.23.94 addresses minor rate changes. TSTCI also asserts that a municipality should not be given more rights than other large users by permitting them to docket a proceeding. TEXALTEL believes that General Counsel should not be denied the right to a hearing. TTA believes that only access customers that actually pay the rate in an application should be able to intervene and request a hearing. TTA recommends that the rule shift from a portion of revenue test to a number of access customers test. In its reply comments, TSTCI states that the revenue percentage is the appropriate trigger for IXCs to docket a proceeding. Because of the wide variation in number of access customers and relative size of access customers the SLECs face, determining a meaningful percentage of access customers required for the appeal trigger would be difficult. AT&T's reply comments note that because IXCs operate as customers and as competitors with SLECs and PURA sec.18(a) requires the commission "to provide equal opportunity to all telecommunications utilities in a competitive marketplace," all parties with a justifiable interest should be allowed to intervene in cases regardless of whether or not the intervenor pays the affected rate. AT&T also objects to TTA's suggestion that intrastate access customers be treated the same as local service customers. AT&T states that a major access customer that provides the majority of access revenues for a SLEC may not be able to complain because they do not make up the requisite percentage of customers. Addressing discovery permitted if an application is docketed, TSTCI believes it is appropriate for the commission to limit discovery. This is because the filings are limited to minor rates changes and the implementation of new services for less than 3.0% of the customers in the state. TSTCI maintains that OPC and General Counsel are charged with representing a broad range of interests and vesting discovery with them is sufficient. Further, TSTCI believes that the short time to respond to RFIs makes limited discovery imperative. If discovery is not limited, TSTCI requests that the RFIs be limited to five questions each. TSTCI recommends the commission establish deadlines of 15 days from filing of application for RFIs from General Counsel and OPC, tying the deadline to actual rather than potential occurrence of a deficient application. MCI believes, however, that the discovery rights should be extended to all parties. TSTCI also recommends consistency with other filings in the number of RFI responses required by the rule. Referring to those persons who can docket an application, TEXALTEL states that small IXCs cannot tell if they can invoke the trigger or if they have to find additional IXCs to join the complaint. It recommends adding a requirement that SLECs report total intrastate gross access revenues and a list of all IXCs that purchase access from the SLEC. In response to TEXALTEL's comments, TSTCI states that the intrastate gross access revenues are available on Schedule IV of the earnings monitoring report. TSTCI does recommend that on applications that affect access rates the application be expanded to include a list of carriers billed by the company in the month prior to the filing of the application. TEXALTEL and TSTCI also commented on the commission's final authority in subsection (k) to docket an application. TEXALTEL states that commission staff can recommend docketing a SLEC filing at its discretion. It notes that a filing may meet all the technical requirements of this section but still be unlawful, violate other commission rules, or be bad public policy. In its reply comments, TSTCI believes that it is clear that the commission can docket a proceeding at any time and on its own motion. The commission revises sec.23.94 to permit any affected person with a justiciable interest and General Counsel the right to docket an application. The commission believes that universal rights to discovery may defeat the purpose of the rule and makes no revisions. The commission also deletes the subsection on the commission's final authority, determining that it is unnecessary to the rule. The commission inquired whether the good cause waiver was appropriately applied to the notice provisions. Generally, comments addressed suggested changes to the notice provisions, although TSTCI and MCI directly answered the commission's questions. MCI believes that changes in notice requirements should occur in procedural rules, not substantive rules. TSTCI believes that sec.43(a) provides the commission with authority to determine appropriate notice provisions by rule, for the specific types of applications addressed by the rule. Once the commission has determined, by rule, the appropriate form of notice for the specific type of application, TSTCI does not believe that sec.43(a) requires "good cause" waiver on individual applications filed under those sections of a rule. It also recommends general good cause waivers of published notice in rate applications that do not involve rate increases and requests deletion of the requirement that the SLEC establish good cause. Good cause should be presumed because the SLEC qualifies for streamlined treatment under the rule, and the commission can prescribe appropriate notice by rule, thus automatically granting good cause waiver. If the requirement is retained, it is inappropriately placed as part of application because the rule requires completion of notice before filing an application and should be filed with the notice of intent to file. TSTCI explains that member companies prefer direct mail, bill inserts, or in cases of co-ops, publication in newsletter versus published notice. TSTCI adds that customers are more likely to see and pay attention to direct mail or bill insert than published notice, and administration is easier particularly in rural areas where there is lack of newspapers of general circulation. TTA agrees that direct mail or bill inserts are a more efficient means of serving notice than newspaper notice. TTA maintains that newspaper publishers will not always certify that the newspaper is generally circulated in a particular rural county so a waiver provision is needed to address this. TTA requests adding waiver language and allowing notice for rate restructuring to be in newspapers or by direct mail and co-ops should be allowed to publish notice in the coop newsletter. TEXALTEL suggests inserting "or in a portion of a county served by the LEC" to address the general circulation problem. TSTCI notes that member companies have encountered problems with published notice and recommends eliminating notice where the commission has flexibility to do so. TSTCI requests language be added to the subsections addressing rate decreases and rate increases to allow co-ops the option of newsletter notice consistent with subsection for new and experimental services. TSTCI also requests deletion of the notice requirement relating to rate decreases and rate restructurings where the application does not address a rate increase and deletion of the published notice requirement relating to new and experimental services. It adds that it is in company's interest to promote new or experimental services, and since they do not impact current rates TEXALTEL feels the notice language for new and experimental services is unnecessary and limiting. Notice for new services should only be required if staff or a commenting party indicates that controversy is likely. Otherwise, TEXALTEL believes that filing the proposed tariffs with the commission 35 days prior to the effective date is adequate. TEXALTEL believes the notice requirements are such that filings under sec.23.24 and sec.23.26 may be preferable to those under this rule. Regarding the notice requirement of how rates will affect customers, TSTCI requests word "classes" be added so it is clear the rule is not referring to individual customers. The commission modifies this subsection to allow cooperatives to provide notice of rate decreases in their newsletter and adds the word "categories" to clarify that the rule is not referring to individual customers. The commission, however, retains the notice requirement where deletion is proposed. The commission asserts that the SLEC is not burdened by the requirement when it complies with the requirement by promoting the services via direct mail in its efforts to secure high customer demand, as noted by TSTCI. The commission deletes the bill insert language because bill insert is redundant with direct notice which is retained as a means of providing notice. Except in the case of rate increases sec.23.94 allows notice by various means, as permitted by sec.43(a). If a newspaper of general circulation does not exist, sec.23.94 allows any SLEC deciding to provide newspaper notice to do so in a newspaper of general circulation for the affected areas and to affirm that it complies with the notice requirements. The commission provides the opportunity for a waiver of notice other than for rate increases but requires that the SLEC establish good cause in order to obtain a waiver. The notice changes are properly addressed in sec.23.94, as opposed to the procedural rules, because of the commission's decision that this alternative notice is appropriate solely for SLECs and for the types of applications addressed by the rule. Responses divided on the commission's query regarding use of the rule by LECs who exceed the access line requirement but are locally owned and operated and, therefore, may be considered "small." TTA states that the number of access lines served by a company is not necessarily an accurate representation of a company's operating characteristics and has no direct relationship to the administrative costs that are incurred to comply with the regulatory process. The SLEC definition, TTA advocates, should apply to companies that own less than 5.0% of access lines. Lufkin-Conroe maintains that as a locally owned LEC of 76,500 or 7.0% of intrastate access lines it more closely resembles SLECs and cooperatives than the four largest companies which comprise 96% of all intrastate access lines. Thus the definition should be broadened to include Lufkin-Conroe. TSTCI agrees that cost of regulation is a tremendous expense for such companies, and the commission perhaps should consider sec.23.94's application to such companies on a case by case basis. AT&T maintains that if the definition is to be expanded, the Commission should establish tests to determine if the LEC needs streamlined regulation due to limited resources and determine the potential adverse effect of regulatory flexibility on competitive markets. AT&T states that a LEC should be evaluated each year to determine if it still qualifies as a SLEC and if its potential adverse effect on competitive markets is still minimal. In its reply comments, AT&T does not specifically object to broadening the definition of a SLEC to include such companies, although it believes additional regulations and safeguards may be necessary. TEXALTEL believes that the possibility of other companies being treated under the provisions of this rule should be postponed until a subsequent proceeding. The commission adds a provision to allow individual companies with fewer than 300,000 access lines to request approval for use of the rule. Following hearings on a company by company basis, the commission would determine whether use of the rule by the SLEC meets the rule's purpose. The commission requires that with every filing the SLEC establish its eligibility by affirming its size and that the rates addressed by the application are not anticompetitive. The commission questioned whether the rates proposed for new and experimental services are reasonable. Responses divided on rates being reasonable and requiring cost studies that established rates were reasonable. Commenters also suggested revisions to the new service and experimental service provision. AT&T feels rates must be reasonable and must also be above costs. If LECs use Class A rates as surrogates, then they should use Class A LEC sec.23.91 cost studies as surrogates too, unless the SLEC decides to conduct its own cost studies. AT&T maintains that rates must recover the imputed price of BNFs and TSLRIC of services and must not be below cost or be unduly preferential, prejudicial, discriminatory, or anticompetitive. TSTCI believes the rates are reasonable but is concerned that SLECs are required to use solely Class A LEC rates. SLECs should be able to use the approved rates of any LEC, and TSTCI prefers using the rates of an adjoining company or a company of the same size depending on type of service. TSTCI believes that the use of comparable companies' rates allow a reasonable presumption of cost recovery. TTA believes a SLEC may want to offer new services not offered by Class A LECs and should be able to offer the service with PUC- approved rates in tariffs of other LECs. TTA requests modifying the language so that a SLEC may utilize any PUC approved tariff. TEXALTEL maintains that the LEC should be able to propose rates other than plus or minus 25% of Class A LECs if they are supported by valid cost data. Commenters also noted concerns with various other provisions related to the new and experimental services provision. MCI recommends that the commission establish the definition of a "bona fide" request for a new service. In its reply comments, TSTCI states that the bona fide language is identical to that in sec.23.26(c)(7) and sees no reason to establish a different standard for small companies. TSTCI also notes that the use of an average also presents a problem where the LEC has reduced its rate to 0, or it has negotiated a very low rate or has in place a low rate not appropriate for the current market or is inconsistent with newer techniques employed by smaller company. TSTCI is also concerned with the experimental service rate, because if the experimental service is implemented as a new service, the SLEC would have to reduce its rate from 35% to 25%, and this would deter the SLEC's introduction of experimental services. TSTCI again requests uniformity in the number of copies to be filed to avoid SLECs having to refer to the commission's procedural rules and suggests moving the filing requirements to the filing subsection. The commission promulgates sec.23.94 to ease SLECs' administrative burdens and decides that in providing the regulatory relief it is not appropriate to require SLECs to provide cost data if their proposed rates fall within the 25% plus or minus range of a Class A LEC or mirror another SLEC's. If an interested or affected party believes the rates are below cost, they may demonstrate this in their comments on the application, docket the application, or file a sec.42 case. The commission adds language in the new service and experimental service subsection that allows a SLEC to mirror the approved rates of a similar SLEC and modifies use of the approved rates of a Class A LEC by eliminating the requirement that Class A LEC's rates be averaged. Additionally, the company's representative must affirm that the rates are not predatory. To address the problem imposed by requiring automatic adjustments to the rates of experimental services at the end of one year, the plus or minus 35% range is eliminated. The commission does not define "bona fide" but determines bona fide on a case by case basis from information provided by the SLEC in its application. If an affected person thinks the SLECs definition of bona fide is not valid, the affected person can docket the application or file a sec.42 case. In response to the commission inquiry about a checklist, TSTCI believes a checklist may be beneficial if it used to indicate when the rule's specific requirements have been accomplished and should not be used as an additional filing requirement. TSTCI envisions it as an internal commission document used to facilitate communications between commission divisions. The commission has designed a checklist that it proposes as an internal tool for use by commission staff. The commission received several comments regarding the filing provisions that were unrelated to the specific questions. TEXALTEL recommends the following be eliminated for new and experimental services filings: the manager's affidavit approving the service, the identification of customers that will be affected, the notarized affidavit from a SLEC representative, and the amount of revenue generated by the application. Like TEXALTEL, TSTCI recommends striking the requirement that rates were determined by the SLEC independently, because language elsewhere in the subsection covers the concept. TSTCI believes the effect on competition criteria are subjective and may be difficult to support. Compliance would require detailed competitive studies, since some information is not readily available to SLECs, and diminish the rule's effectiveness. TEXALTEL, however, does not recommend deletion of the explanation of the effect on competition provision required in the notarized affidavit and which should be included elsewhere in the filing. TSTCI also recommends revising the verification of access lines provision to correspond with the definition of a SLEC. The commission retains the provisions which parties recommend be deleted and maintains that the information contained in the application is necessary to safeguard the public interest in a process that provides expedited review of rates. Additionally, the commission notes that the requirement that the SLEC set its prices independently does not prohibit the applying SLEC from mirroring another LEC's or SLEC's prices. As a safeguard to address the anticompetitive concerns raised by commenters the commission adds as a filing requirement that the SLEC provide an explanation demonstrating that the application complies with the rule's pricing requisites and that the SLEC submit the tariffs upon which it is basing its application. The commission also conforms the definitions of SLEC. Commenters also proposed changes to the rate change subsection. Comments addressed clarification of the term "single rate element," the rate changes' effect on competition, the effect of the number of applications that the rule permits, and the earnings monitoring report restriction and filings consistency. TEXALTEL asks for clarification of the language "[a]ny application for a rate change shall affect a single rate element, except as provided in paragraph (2) of this section." TSTCI again requests that the filing requirement for rate changes be consistent throughout the rule. AT&T and MCI recommend adding language to the rate restructuring subsection to prevent preferential or discriminatory treatment. Regarding the rate decrease subsection, MCI believes the commission should establish criteria to determine if competition is adversely affected. TSTCI maintains that the language suggested by MCI and AT&T is already present in PURA sec.38 and, therefore, is unnecessary. MCI also requests that the term "basic local access line rate" be defined. In its reply comments, TSTCI contends that the term "basic local access line" refers to local exchange access line rates reflected on the local exchange rate schedule of a company's Local or General Exchange tariff. TSTCI and TTA believe that the rule is overly restrictive. TSTCI believes that revenue limits are sufficient, and requests deletion of the subsection's opening sentence. TTA states that the rule already limits the level of rate increases and allows only one increase per service, and, therefore, there is no need to limit the total amount of applications. TSTCI states that the restrictions on the number of applications and number of rate elements that can change in one rate change application and revenue limitations diminish the rule's usefulness and that restricting rate increases and decreases to a single rate element per application is overly restrictive. TSTCI asserts that restructuring of existing rates are limited to revenue neutral or revenue decrease filing, and, therefore, the rate restructuring subsection is overly restrictive. TSTCI believes the commission should allow rate increases that do not exceed the subsection's revenue limits. Revenue neutral or revenue decrease filings would force the SLEC to make additional filings that could be handled in one application. Since the rule provides for rate increase filings, it should encourage all rate changes be implemented through a single filing. Senate Bill 498 allowed restructuring rates which could include rate increase of up to 5.0% of company's gross annual revenue. The commission has authority to so and suggests language. TSTCI believes that the earnings monitoring limitation should be deleted because it serves no useful purpose. The earnings monitoring report reflects potential earnings and does not necessarily indicate that the company is over- earning. TSTCI believes it is inappropriate to prevent a SLEC from using the rule based on pending staff report. A company should be aware if it is over- earning and will take this into consideration before filing an application. TSTCI is concerned that the commission's work load would prevent staff from reviewing and reporting earnings. Additionally, a report is issued only once every six months for commercial company and once a year for co-ops. TSTCI recommends that the commission can file a sec.42 rate case if the company is over-earning. Commenting on the number of applications provision, TSTCI does not understand why a rate increase is limited to once in a 12 month period unless it is so limited because it could be confusing to subscribers. TSTCI believes that the restriction is appropriate for basic local access line rates. It requests that rate changes for discretionary services not be so limited, provided the SLEC complies with subsection's revenue guidelines. TSTCI believes that the limitation on the number of applications to six in a 12-month period is overly restrictive since rate increases and rate decreases are limited to one rate element per application and the rule prohibits rate increases under rate restructuring. TSTCI believes the cap on rate increases as defined by the revenue limitations should be the "bottom line" that determines number of applications. To address concerns on the rule's restrictive nature, the commission broadens the language that is applicable to rate changes to permit addressing related rate changes in a single filing but adds clarifying language to ensure that a single application address either, but not both, of the two types of rate changes permitted by subsection (f). The commission also responds to comments regarding rate restructurings by deleting the provision, further noting that rate restructuring consists of rate increases and rate decreases. In response to comments regarding adverse effect on competition and discrimination, the commission requires that the SLEC affirm that the rate is not anticompetitive, discriminatory, or preferential. No changes are made to "basic local access line," and the commission relies on the company's tariff sheets. The commission feels the regulatory flexibility inherent in the rule must be weighed against the administrative burden of the commission examining applications. Therefore, the prohibition against use of the rule by companies that may be over-earning and the limitation on the total number of applications for rate changes that results from the language modification is appropriate. However, the commission moves the over-earning provision to the docketing section of the rule and makes it a good cause reason for which General Counsel can request docketing. By moving the provision a SLEC on the over-earnings list is not prohibited from filing pursuant to sec.23.94. Regarding the privacy subsection, MCI requests clarification of the term "applicability limitations." TSTCI believes that the privacy requirement should be referenced under the application requirements of the filing subsection. The commission makes appropriate revisions to address both comments. The new section is adopted under Texas Civil Statutes, Article 1446c, sec.16, which provide the Public Utility Commission of Texas with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction; and sec.18, which provides that the public interest requires that new rules, policies, and principles be formulated and applied to protect the public interest and to provide equal opportunity to all telecommunications utilities in a competitive marketplace. sec.23.94. Small Local Exchange Carrier Regulatory Flexibility. (a) Purpose and Application. (1) Purpose. The provisions of this section establish structured procedures and pricing guidelines that small local exchange carriers, because of their special characteristics, may use to expedite commission approval of services and rates. Special characteristics reach beyond the size of the carrier and include whether the carrier is customer-owned or locally-owned and whether the carrier serves rural areas. Through this section the commission strives also to provide to all of the state's citizens adequate and efficient telecommunications service by facilitating the small carriers' abilities to offer, in a more timely manner, to subscribers those technologically advanced services that are available in metropolitan areas from large carriers. (2) Application. This section applies to any small local exchange carrier (SLEC), as that term is defined in subsection (b) of this section. Nothing in this section precludes a SLEC from utilizing any other applicable section of the Public Utility Regulatory Act ("PURA") or this chapter. Nor does anything in this section exempt a SLEC from complying with any section of the Public Utility Regulatory Act or this chapter not addressed by this section nor prohibit the commission from conducting a review in accordance with the Act, sec.42. Notwithstanding the limitations contained within subsection (b) of sec.23.57 of this title (relating to Telecommunications Privacy), sec.23.57 applies to all applications filed under this section. (b) Definitions. The following words and terms, when used in this section, shall have the following meaning, unless the context clearly indicates otherwise: (1) Administrative review-Administrative review is the process whereby an application is reviewed by the commission staff and ruled on by the presiding officer without an evidentiary hearing and without an order signed by the commission. (2) Class A LEC-Any telephone utility referenced in sec.23.12(a)(1)(A) (i) of this title (relating to Financial Records and Reports). (3) Custom calling-type services-Call management services available from a central office switching system including, but not limited to, call forwarding, call waiting, caller ID, or automatic recall. (4) Experimental service-That definition given in sec.23.26(b)(2) of this title (relating to New and Experimental Services). (5) New service-That definition given in sec.23.26(b)(1) of this title (relating to New and Experimental Services). (6) Similar services-Similar services are services that have comparable or common characteristics and are provided under comparable circumstances. (7) Small Local Exchange Carrier-Also referred to as SLEC, any certificated telecommunications utility that provides local exchange service within the state with no more than a total of 31,000 access lines, including the access lines of affiliates of such utilities providing local exchange service within the state, or a telephone cooperative organized pursuant to Texas Civil Statutes, Article 1528c, or any local exchange company determined to be a SLEC pursuant to subsection (j) of this section. (c) Filing. A SLEC may request approval of a new service or an experimental service or rate changes by following the procedures outlined in this section. (1) At least 25 days before filing the application, the SLEC shall file six copies of a notice of intent with the commission and serve a copy upon each affected municipality and the Office of Public Utility Counsel. Such notice of intent shall provide: (A) a copy of the notice it will provide as required by subsection (d) of this section; (B) a sufficient description of how notice will be provided to allow the presiding officer to rule on the sufficiency of the notice; and (C) any request for a good cause waiver to the notice requirements of subsection (d) of this section. The letter shall provide sufficient justification for the good cause exception to the notice requirements to allow the presiding officer to rule on the request. (2) No later than ten days after the SLEC notifies the commission of the proposed filling, the presiding officer assigned to the project shall notify the SLEC of any notice deficiencies, that notice is approved, and/or that a waiver has been granted. (3) The notice approved by the commission shall be submitted to the Texas Register immediately following the presiding officer's approval of the notice. Before filing the application the SLEC shall complete notice as required by subsection (d) of this section. Any notice that is not completed as required by subsection (d) of this section shall result in the effective date of the application being postponed for as many days as completion of notice is delayed after filing of the application. (4) No later than 35 days before the proposed effective date of the application, the SLEC shall file six copies with the commission and serve a copy upon the Office of Public Utility Counsel of an application containing the following information: (A) a statement of intent to use the procedures established in this section; (B) a description of the proposed new service, experimental service, or rate changes and an affidavit approving the proposed service or rate changes from the general manager or an officer of the SLEC; (C) a description of the rates, terms, and conditions under which the proposed new service, experimental service, or rate changes are to be implemented, including all applicable tariff sheets; (D) the proposed effective date of the tariffs addressed by the application; (E) a statement identifying the category of customers that will be affected by the proposed new service, experimental service, or rate changes and how the category of customers will be affected; (F) if the proposed new service or experimental service is not to be implemented systemwide, an explanation from the SLEC as to why non-systemwide implementation is appropriate and a systemwide implementation schedule as required by subsection (e)(2) of this section; (G) a notarized affidavit from a representative of the SLEC: (i) verifying the provision of notice as required by subsection (d) of this section; (ii) verifying the number of access lines, including the access lines of affiliates of such SLEC providing local exchange service within the state, the SLEC has in service in the State of Texas; (iii) verifying that the rates have been determined by the SLEC independently; (iv) if the application is for a new service or an experimental service, a statement affirming that the rates for proposed new service or experimental service are not unreasonably preferential, prejudicial, or discriminatory; subsidized directly or indirectly by regulated monopoly services; or predatory, or anticompetitive; (v) if the application is for rate changes, a statement affirming that the proposed rate changes are not unreasonably preferential, prejudicial, or discriminatory; and (vi) verifying the number of applications filed by the SLEC pursuant to this section and that the SLEC complies with subsection (f)(4) of this section; (H) an explanation demonstrating that rates for the proposed new service, experimental service, or rate changes are within the guidelines provided by the rule; (I) if the application is for a new service or an experimental service: (i) the tariff sheet(s) of the local exchange company upon which the applicant based its rates pursuant to subsection (e)(3) of this section; and (ii) the amount of revenues that will be generated by the new service or experimental service; (J) if the application is for rate changes, sufficient information to justify compliance with subsection (f)(2) of this section; (K) information required by sec.23.57(c) of this title (relating to Telecommunications Privacy); and (L) any other information the SLEC wants considered in connection with the application. (d) Notice. A SLEC satisfies the notice requirements of this section by completing notice pursuant to the following requirements: (1) Notice must be provided as set forth in subparagraphs (A) and (B) of this paragraph: (A) New service and experimental service require either two weeks published notice in a newspaper of general circulation in each county affected by this application or direct notice or, in the case of a cooperative, publication in the cooperative's newsletter and by mail to nonmember customers. (B) Rate changes require that: (i) for a rate decrease, notice be published for two weeks in a newspaper of general circulation in each county affected by the application or direct notice or, in the case of a cooperative, publication in the cooperative's newsletter and by mail to nonmember customers; and (ii) for a rate increase that affects any ratepayer, notice be published for four weeks in a newspaper of general circulation in each county affected by this application and direct notice. (2) Newspaper notice for paragraph (1) of this subsection shall be provided in a newspaper of general circulation in the particular area(s) affected by the application if a newspaper with general circulation in the entire county does not exist. (3) The presiding officer may require for good cause that notice be provided in addition to that notice proposed by the SLEC or may waive for good cause the publication of notice requirement prescribed by this section in an application for a new service or an experimental service or an application that involves a rate decrease for all affected ratepayers. (4) Each notice must include: (A) a description of the service(s) affected by the proposed change; (B) a list of rates that are affected by the proposed application and how the rates affect each affected category of customers; (C) the proposed effective date of the change; (D) an explanation of the affected person's right to petition the commission for review under subsection (g) of this section; (E) an explanation of the affected person's right to obtain from the SLEC a copy of the proposed tariff and instructions on how to do so; and (F) the amount by which the SLEC's total regulated intrastate gross annual revenues will increase or decrease as a result of the proposed service or change. (e) New or Experimental Service. The following requirements shall apply to a new service or an experimental service as the terms are defined in subsection (b) of this section: (1) Filing. The SLEC must file six copies of the application for a new service or an experimental service with the commission and serve a copy upon the Office of Public Utility Counsel. (2) Availability. If the application concerns a service that will not be offered systemwide initially, the application shall explain separately for each exchange in which that service will not be offered why the SLEC's facilities in that exchange do not have the technical capability to handle the service. The application also shall include an implementation plan that shall specify the SLEC's plans for making the service available in such exchanges within a reasonable time after receipt by the SLEC of a bona fide request for the service. The SLEC shall specify in its plan what requirements must be met for a request to be considered bona fide. This requirement does not apply to experimental services, but the SLEC shall specify the exchanges in which it proposes to offer the experimental service. (3) Pricing. A SLEC may price a new service or an experimental service at plus or minus 25% of the rates for a similar service approved by the commission for any Class A local exchange carrier providing the service within the State of Texas, or at the rates for a similar service approved by the commission for a similar SLEC. For the purposes of this section a similar SLEC is defined as a SLEC having a total number of access lines within 5,000 access lines of the applying SLEC. In the event that a new service or an experimental service proposed by the SLEC has never been approved by the commission, the provisions of this section do not apply. At no time shall a SLEC require that a customer purchase, either directly or indirectly, a new service or an experimental service as a condition for receiving telephone service. (4) Expiration. Any experimental service may be offered for no more than a 12- month period. Prior to or at the conclusion of this period, the SLEC may file an application to offer the experimental service as a new service. Such application may be filed pursuant to this section or to any other applicable section of this chapter. (f) Rate Changes. The following requirements shall apply to rate changes: (1) Filing. A SLEC must file six copies of the application for rate changes with the commission and serve a copy upon the Office of Public Utility Counsel. (2) Limitations on revenues. The revenue from the rate changes addressed by the application shall not increase the revenues of the applicant more than the greater of $100,000 or 2.5% of the SLEC's total regulated intrastate gross annual revenues, provided that: (A) the revenue from a proposed change in the rates of a SLEC, together with any rate changes for existing services that went into effect during the 12 months preceding the proposed effective date of the requested rate changes that are the subject of the application, including any other proposed rate changes then pending before the commission, shall not exceed 5.0% of the SLEC's total regulated intrastate gross annual revenues; and (B) rate changes for a basic local access line rate, together with any other changes to that rate that went into effect during the 12 months preceding the proposed effective date of the requested change, shall not result in an increase of more than 10% to that basic local access line rate. (3) Limitations on affected services. Pursuant to the limitations in paragraph (2) of this subsection and provided that a single application shall address either subparagraph (A) or subparagraph (B) of this paragraph but not both, a SLEC may file an application to change its existing rates: (A) for a single tariffed service or (B) within a group of custom calling-type services. (4) Number of applications. (A) Any rate shall not be changed under this section more than once in any 12- month period, provided that rate decreases are not so limited. (B) A SLEC may not receive approval of more than six applications under this section in any one 12-month period, provided that applications strictly for rate decreases are not so limited. (g) Administrative Review. (1) An application considered under this section shall be reviewed administratively, unless docketed. The presiding officer shall rule within thirty days of the filing of the application on any request for docketing. An application shall be docketed: (A) if within 20 days of the filing of an application, any affected person (i.e., one who demonstrates or represents persons who demonstrate a justiciable interest which may be adversely affected by the outcome of the proceeding) has filed a request for docketing, and such request is still pending; or (B) if within 20 days of the filing of the application, the commission receives a complaint(s) relating to the proposed change signed by the lesser of 5.0% or 1,500 of the affected local service customers to which the proposed change applies; or (C) if within 20 days of the filing of the application, the commission receives a complaint from an affected intrastate access customer or group of affected intrastate access customers that in the preceding 12 months the SLEC billed and from which the SLEC received 10% or more of its total intrastate gross access revenues; or (D) if within 25 days of the filing of the application, there is a good cause showing by General Counsel that may include, but is not limited to, consideration of the fact that the SLEC is listed in the latest earnings monitoring report to the commission as a public utility that requires investigation as a utility that is over-earning unless the commission has found, by final order in a case under the Act, sec.42 or sec.43, after the earnings monitoring report is presented to the commission, the SLEC mentioned in such report not to be over-earning; or (E) the SLEC does not comply with the procedural requirements of this section. (2) The operation of the proposed rate schedule may be suspended for 35 days after the effective date of the application at the request of General Counsel. (3) No later than five working days after the filing date of the application General Counsel shall and the Office of Public Utility Counsel may file with the presiding officer written comments or recommendations concerning deficiencies in the application. If the presiding officer concludes that material deficiencies exist in the application, the applicant shall be notified within ten working days of the application's filing of the specific deficiency in its application, and the earliest possible effective date of the application shall be no less than 35 days after the filing of a sufficient application with substantially complete information as required by the presiding officer. If the presiding officer concludes that no material deficiencies exist in the application, the applicant shall be so notified within ten working days of the application's filing. (4) While the commission is reviewing the application and within 15 days of the filing of the sufficient application, General Counsel and the Office of Public Utility Counsel may submit requests for information to the SLEC. The SLEC shall provide six copies of all answers to such requests for information to General Counsel and one copy to the Office of Public Utility Counsel within five days after receipt of the request by the SLEC. No later than 20 days after the filing date of the sufficient application, interested persons may file written comments or recommendations concerning the application. No later than 25 days after the filing date of the application General Counsel shall and the Office of Public Utility Counsel may file with the presiding officer written comments or recommendations concerning the application. (5) No later than 35 days after the filing of a sufficient application the presiding officer shall complete the administrative review. The application shall be approved by the presiding officer if the SLEC complies with each requirement of this section. A notice of approval, approval with modification, or denial of a tariff filing shall be the final determination of the commission regarding the application. The effective date shall be no earlier than 35 days after the filing date of the sufficient application. (h) Approval or denial of application. For its application to be approved, the SLEC must meet all of the requirements in this section. If, based on administrative review, the presiding officer determines that the SLEC has met all requirements, the SLEC shall be permitted to implement its application. If, based on administrative review, the presiding officer decides that the SLEC has not met all requirements, the presiding officer may deny or, upon request of the SLEC, shall docket the application. Any application not ruled upon within 35 days shall go into effect by operation of law, unless suspended at the request of General Counsel, the approval date is delayed due to corrections of deficiencies in the application, or the application is docketed. (i) Review of the application after docketing. If the application is docketed, the operation of the application shall be automatically suspended to a date 150 days after the effective date. The application shall be processed in accordance with the commission's procedural rules applicable to docketed cases. (j) Applicability of rule to other LECs. The commission may extend application of this section to local exchange companies having 300,000 or fewer access lines in service, including the access lines of affiliates of such utilities providing local exchange service within the state, on a company by company basis, if the Commission determines, following a hearing, that the purpose of this section would be served. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on December 5, 1994. TRD-9451893 John M. Renfrow Secretary of the Commission Public Utility Commission Effective date: December 26, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 458-0100 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 37. Maternal and Child Health Services Midwives 25 TAC sec.37.185 The Texas Department of Health (department) adopts new sec.37.185, concerning standards of practice and principles of midwifery care, with changes to the proposed text as published in the July 8, 1994, issue of the Texas Register (19 TexReg 5314). The new section is necessary to comply with the Texas Midwifery Act (Act), Texas Civil Statutes, Article 4512i, sec.9(a)(4), which require the Midwifery Board to adopt standards for the practice of midwifery by documented midwives in Texas. The new section improves the quality of midwifery practice and the continued efficient administration of the Act. The standards of practice will help midwives make the most appropriate decisions when questions or problems arise in their care of women and their infants. The standards also enhance the ability of the Midwifery Board, a midwife's peers, and the public to evaluate a midwife's care. The following comments were received on the new section as proposed. COMMENT: Several commenters requested that the standards be separated from the protocols and procedures as defined, because the commenters state that no other health profession has standards, protocols, and procedures combined. RESPONSE: The department agrees that implementation of this comment would not alter the overall meaning of the section and would better meet the expectation of midwives. The department has redefined the standards of practice and principles into two separate subsections. COMMENT: Several commenters expressed concern regarding standards of practice for midwives because they felt the standards would infringe on their freedom of choice to deliver with whom and where they choose. RESPONSE: The department disagrees because the Midwifery Act requires that standards of practice be written and included in a manual for the practice of midwifery. COMMENT: Several commenters stated that the standards should have been written by midwives not by the medical community. RESPONSE: The standards and principles were developed with input from midwives practicing in different areas of Texas and input from midwives, consumers and physicians on the midwifery board. COMMENT: One commenter requested that midwifery care should be defined as a standard for all normal births. RESPONSE: The department feels that women have a right to choose physicians, advanced nurse practitioners, or midwives as a source of care for normal childbirth. COMMENT: One commenter stated that the high risk conditions that require transfers and/or consults should be deferred to an appendix and not included as part of a standard. RESPONSE: The department disagrees, since these conditions help define what is and what is not normal childbirth; i.e., the scope of midwifery practice. Due to the importance of this language, provisions concerning high risk conditions have been retained in the body of the section rather than in an appendix. COMMENT: Several commenters requested the words "must" and "shall" be changed to "will" because they felt those two words were too demeaning. RESPONSE: The department believes that the adoption of this suggestion would not alter the overall meaning of the section and would be responsive to the concerns of many commenters. The section has been amended accordingly. COMMENT: Several commenters requested the words "management" and/or "manage" throughout the document be deleted because midwives do not manage clients for whom they provide care. RESPONSE: The department agrees and has made the recommended change. COMMENT: One commenter requested that the number of hours of continuing education and the acceptable types of CEUs be specified in paragraph (1)(C). RESPONSE: The department disagrees, because specific CEU requirements have already been published in sec.37.180(g) of the Midwifery Board's rules. COMMENT: One commenter stated that paragraph (2), Standard II, "Midwifery care supports individual rights and self determination within the boundaries of safety" is unprofessional. RESPONSE: The department disagrees. Client safety is a paramount professional concern in the delivery of health care. Therefore the proposed language has been retained in subsection (a)(2). COMMENT: One commenter stated that when there is a large group of midwives to provide the client with written proof of documentation and expiration of CPR certification, requiring that each midwife to provide such information the client would be unnecessarily troublesome. The same commenter requested that mandatory provision of the expiration date of the midwife's CPR certification be omitted from paragraph (2)(A)(iv). RESPONSE: The department disagrees. Section 16(b)(3) of the Midwifery Act requires that a midwife must in an informed choice and disclosure statement, include the expiration date of the midwife's CPR certification. The department has retained the proposed language in subsection (b)(2)(A)(iv). COMMENT: One commenter requested that a written description of prohibited acts should only be made available upon request. RESPONSE: The department disagrees. Section 16(b)(6) of the Midwifery Act requires disclosure of prohibited acts to each prospective client. COMMENT: Several commenters requested that paragraph (2)(A)(vi) be amended to read "the standards of practice of midwifery in Texas as adopted in rule by the Texas Department of Health" instead of "this section". RESPONSE: The department agrees and has amended subsection (b)(2)(A)(vi) accordingly. COMMENT: Several commenters requested that the phrase "of self determination to decline the midwife's recommendation....." in paragraph (2)(B) (vi) be amended to include "or continue care upon". RESPONSE: The department agrees and has amended subsection (b)(2)(B)(vi) accordingly. COMMENT: Several commenters requested that the wording in Standard III, "Midwifery care will be based upon the knowledge, skill and judgment that foster the delivery of safe and competent care to mother and newborn, giving the newborn the opportunity for a good beginning" be amended to read "...and judgment which the midwife utilizes in assisting the mother and neonate to achieve their maximum level of attainable wellness". RESPONSE: The department feels that the original language is adequate and retains the proposed language in subsection (a)(3). COMMENT: Several commenters requested that the phrase "provide care only to clients determined to be at low or normal risk of developing complications during pregnancy....." in paragraph (3)(A) be amended to include the wording in paragraph (3)(D) and paragraph (3)(D)(i). RESPONSE: While the department understands the thrust of the comment, it feels that the language is adequate. The department retains the proposed language in subsection (b)(3)(A). COMMENT: One commenter requested that the phrase "provide clients with information on other providers and services when requested....." in paragraph (3)(B) be amended to add "..except when doing so will violate the midwife's right to the exercise of conscience as protected by federal law". The commenter stated that the proposed wording conflicts with a midwife's right to refuse to refer a client to health care providers that perform abortions, dispense contraception, or do genetic amniocentesis. RESPONSE: The department feels that the client has the right to receive information regarding alternate providers if requested, and that the midwife has the responsibility to refer clients for medical care when the client's needs exceed the lawful scope of midwifery practice. The midwife is not required to agree with or approve of specific medical procedures, and may choose among any qualified medical providers for referral. Therefore the department retains the proposed language in subsection (b)(3)(B). COMMENT: Several commenters requested that the language in paragraph (3)(D) (i) be amended to emphasize a situation rather than a client, and to delete the word "suspects" in the first sentence. RESPONSE: The department believes that the client rather than the situation should be evaluated. The word "suspects" is appropriate to indicate that if after assessment, a midwife believes a client might have one or more of the listed conditions or symptoms, then she should seek consultation for diagnosis or referral. The department retains the proposed language in subsection (b)(3) (D)(i). COMMENT: One commenter suggested that the phrase "if the client's history concerning prior pregnancies" in paragraph (3)(D)(ii) should be amended to read "if the client's prior medical history or history concerning prior pregnancies". RESPONSE: The department agrees and has amended subsection (b)(3)(D)(ii) accordingly. COMMENT: One commenter stated that there is a conflict between paragraph (3) (D)(ii)(I), "preterm labor", and paragraph (3)(D)(ii)(II), "preterm rupture of membranes". RESPONSE: The department disagrees because these are two different conditions. The department retains the proposed language in subsections (b)(3) (D)(ii)(I) and (b)(3)(D)(ii)(II). COMMENT: Several commenters requested that the phrase "prior delivery of an infant weighing <<5.5 pounds" in paragraph (3)(D)(ii)(III) be amended to add "at term". RESPONSE: The department agrees and has amended subsection (b)(3)(D)(ii) (III) accordingly. COMMENT: One commenter requested that the wording in paragraph (3)(D)(ii) (IV) be amended to define "birth trauma". RESPONSE: The department feels that the wording is self-explanatory and has retained the proposed language in subsection (b)(3)(D)(ii)(IV). COMMENT: One commenter requested that the phrase "...(first month of life).. ." in paragraph (3)(D)(ii)(V) be deleted and replaced with "eight months of age". RESPONSE: The department disagrees because the first month of life is considered the neonatal period. The department has retained the proposed language in subsection (b)(3)(D)(ii)(V). COMMENT: One commenter requested that "non-traumatic postpartum hemorrhage" in paragraph (3)(D)(ii)(VI) be defined. RESPONSE: The department feels that the wording is self-explanatory and has therefore retained the proposed language in subsection (b)(3)(D)(ii)(VI). COMMENT: Several commenters requested that the phrase "three or more spontaneous abortions" in paragraph (3)(D)(ii)(VII) be amended to include the word "consecutive". RESPONSE: The department agrees and has amended subsection (b)(3)(D)(ii) (VII) accordingly. COMMENT: One commenter stated that reference to American College of Obstetricians and Gynecologists (ACOG) Technical Bulletin #108 in paragraph (3) (D)(ii)(IX) was inappropriate. RESPONSE: The department disagrees because use of a questionnaire such as that in the ACOG bulletin will help determine whether a client needs further referral. The American College of Obstetricians and Gynecologists is a recognized national authority on the practice of obstetrics and therefore is an appropriate source for a sample form. The department retains the proposed language in subsection (b)(3)(D)(ii)(IX). COMMENT: One commenter requested that the phrase "mother or current conception's father having had a previous infant or fetus with a significant congenital anomaly" in paragraph (3)(D)(ii)(X) be amended to add "where the anomaly causes a life threatening condition in the neonatal period which would prevent extra financial burden on the client if the anomaly was non- threatening". RESPONSE: The department disagrees because the proposed language already includes the qualifying word "significant". The department retains the proposed language in subsection (b)(3)(D)(ii)(X). COMMENT: Several commenters requested that the phrase "pregnancy induced hypertension....." in paragraph (3)(D)(ii)(IX) be deleted or amended to add "requiring medication, medical supervision, or hospitalization". RESPONSE: The department agrees and has amended subsection (b)(3)(D)(ii)(XI) accordingly. COMMENT: One commenter stated that referral to a physician was unnecessary in the following cases: paragraph (3)(D)(ii)(XIII), "multiple gestation"; paragraph (3)(D)(ii)(XIX), "inverted uterus"; and paragraph (3)(D)(ii)(XXIX), "syphilis". RESPONSE: The department agrees with the comment concerning previous multiple gestation, but feels that an inverted uterus and syphilis do require a consult. Therefore the department has deleted paragraph (3)(D)(ii)(XIII), but retains the proposed language in subsections (b)(3)(D)(ii)(XVIII) and (b) (3)(D)(ii)(XXVIII). COMMENT: Several commenters requested that the phrase "gestational diabetes (diet controlled)" in paragraph (3)(D)(ii)(XII) be amended by deleting "diet controlled". RESPONSE: The department disagrees because different categories of diabetes require different triages by the midwife. The department retains the proposed language in subsection (b)(3)(D)(ii)(XII). COMMENT: One commenter requested that "cancer" in paragraph (3)(D)(ii)(XXIV) be defined to specify the different types of cancer intended. RESPONSE: The department disagrees because a complete listing would be exhaustive. The department retains the proposed language in subsection (b)(3) (D)(ii)(XXIII). COMMENT: One commenter requested that the phrase "pelvic or genital tract anomaly" in paragraph (3)(D)(ii)(XX) be defined because a midwife could determine by means of a speculum exam whether the cervix was scarred due to multiple abortions or if fibroids were present. RESPONSE: The department disagrees. The word "anomaly" is self-explanatory and clearly refers to any abnormal rather than normal findings. The department has retained the proposed language in subsection (b)(3)(D)(ii)(XIX). COMMENT: One commenter stated that "HIV positivity" in paragraph (3)(D)(ii) (XXXI) should not require a consult because midwives will soon be seeing clients who have a history of being HIV positive at birth, but who have seroconverted. RESPONSE: The department disagrees because "HIV positivity" refers only to a true diagnosis, not transient passive acquisition. Therefore the department retains the proposed language in subsection (b)(3)(D)(ii)(XXX). COMMENT: One commenter requested that the phrase "age 15 or under" in paragraph (3)(D)(iii)(I) be defined. RESPONSE: The department feels that the wording as stated is clear and means any client who requests midwifery services and is at the time of presentation 15 years of age or under. The department retains the proposed language in subsection (b)(3)(D)(iii)(I). COMMENT: One commenter requested that the phrase "exposure to a teratogen... .." in paragraph (3)(D)(iii)(II) and the phrase "drug, tobacco and/or alcohol abuse" in paragraph (3)(D)(iii)(III) be amended to provide more specifics. RESPONSE: The department disagrees because the wording is self-explanatory. The department retains the proposed language in subsections (b)(3)(D)(iii)(II) and (b)(3)(D)(iii)(III). COMMENT: One commenter requested that the phrase "significant psychological dysfunction" in paragraph (3)(D)(iii)(IV) be made more specific. RESPONSE: The department disagrees and feels that the wording is self- explanatory. The department retains the proposed language in subsection (b)(3)(D)(iii)(IV). COMMENT: Several commenters requested that the phrase "vaginal bleeding" in paragraph (3)(D)(iii)(V) be amended by adding "after 12 weeks". RESPONSE: The department agrees and has amended subsection (b)(3)(D)(iii)(V) accordingly. COMMENT: Several commenters requested that the phrase "decreased fetal movement" in paragraph (3)(D)(iii)(VII) be amended by adding the word "significantly". RESPONSE: The department agrees and has amended subsection (b)(3)(D)(iii) (VII) accordingly. COMMENT: Several commenters requested that the phrase "rupture of membranes prior to 36 weeks" in paragraph (3)(D)(iii)(VIII) be deleted because preterm membranes are considered in paragraph (3)(D)(iv)(IX). RESPONSE: The department agrees and has deleted the paragraph. COMMENT: Several commenters requested that the phrase "asthma requiring treatment" in paragraph (3)(D)(iii)(XVI) be amended to add "other than PRN inhaler". RESPONSE: The department disagrees because symptomatic asthmatic women should be evaluated during their pregnancies. Therefore the department retains the proposed language in subsection (b)(3)(D)(iii)(XV). COMMENT: One commenter requested that the phrase "severe edema of hands, face....." in paragraph (3)(D)(iii)(XXI) be amended to add "before 36 weeks" and that "severe" be defined as "3+ pitting above the knees, with no probable cause, or with evidence of toxemia, HBP, or protein spills". RESPONSE: The department disagrees because any severe edema should be medically evaluated. The department retains the proposed language in subsection (b)(3)(D)(iii)(XX). COMMENT: Several commenters requested that the phrase "non-vertex presentation" in paragraph (3)(D)(iii)(XXIV) be amended to include 38 weeks rather than 36 weeks. RESPONSE: The department disagrees since most presentations are stable after 36 weeks. The department retains the proposed language in subsection (b) (3)(D)(iii)(XXIII). COMMENT: Several commenters requested that the phrase "anemia.....not corrected by iron therapy" in paragraph (3)(D)(iii)(XXV) be amended to add "if not corrected by 36 weeks gestation, or with four weeks of iron therapy". RESPONSE: The department disagrees because iron deficiency anemia discovered early in a pregnancy should certainly respond before 36 weeks. The department also declines to establish an arbitrary time limit for correction. Therefore the department retains the proposed language in subsection (b)(3)(D) (iii)(XXIV). COMMENT: Several commenters requested the phrase "active genital herpes" in paragraph (3)(D)(iii)(XXVI) be amended to add "at the time of delivery". RESPONSE: The department agrees and has amended subsection (b)(3)(D)(iii) (XXV) accordingly. COMMENT: One commenter stated that inclusion of "HIV" in paragraph (3)(D) (iii)(XXVII) is a typographical error which should read "HPV". RESPONSE: The department agrees and has corrected subsection (b)(3)(D)(iii) (XXVI) accordingly. COMMENT: Several commenters requested that paragraphs (3)(D)(iii)(XXXI), (3) (D)(iii)(XXXII), (4)(A)(i)(III)(-b-), (4)(A)(ii)(III)(-a-), and (4)(B)(III) be amended by deleting the required testing for ketonuria and hematuria. RESPONSE: The department agrees and has deleted paragraphs (3)(D)(iii)(XXXI) and (3)(D)(iii)(XXXII). Subsections (b)(4)(A)(i)(III)(-b-), (b)(4)(A)(ii)(III) (-a-), and (b)(4)(B)(III) have been amended accordingly. COMMENT: Several commenters requested that the phrase "abnormal pap smear" in paragraph (3)(D)(iii)(XXXIV) prompting a recommended consult be deleted because all pap smears will be abnormal during pregnancy and a physician is unlikely to do any other testing during the pregnancy. RESPONSE: The department disagrees because all pap smears are not abnormal due to pregnancy, and those that are should be medically evaluated. Therefore the department retains the proposed language in subsection (b)(3)(D)(iii)(XXXI) . COMMENT: Several commenters requested that the wording in paragraphs (3)(D) (iii)(XXXV)(-a-), (-b-), and (-c-) be deleted and replaced with "abnormal fetal growth or uterine discrepancy greater than four weeks on two visits unless assessment by palpation finds fetal growth appropriate for dates". RESPONSE: The department agrees and has amended subsection (b)(3)(D)(iii) (XXXII) accordingly. COMMENT: One commenter requested that the phrase "intrauterine growth retardation" in paragraph (3)(D)(iii)(XXXVI) and the phrase "post-term pregnancy" in paragraph (3)(D)(iii)(XXXVII) be amended to include ultrasound because midwives who have access to ultrasound machines can perform this test. The commenter urged that midwives have access to ultrasound equipment for diagnostic testing. RESPONSE: The department disagrees because federal regulations do not authorize the use of ultrasound equipment by non-physicians except under delegated authority. Therefore the department retains the proposed language in subsections (b)(3)(D)(iii)(XXXIII) and (b)(3)(D)(iii)(XXXIV). COMMENT: One commenter requested that the phrase "hyperemesis gravidarum" in paragraph (3)(D)(iii)(XL) be amended to read "severe vomiting". RESPONSE: The department disagrees because the term "hyperemesis gravidarum" will be clearly understood by an appropriately trained midwife to mean severe vomiting. The department retains the proposed language in subsection (b)(3)(D)(iii)(XXXVII). COMMENT: One commenter requested that "vaginitis, other than simple, non- recurrent monilia" in paragraph (3)(D)(iii)(XLII) should not require consultation by a physician since it is a symptom of gestational diabetes and glucose testing should be done. RESPONSE: The department disagrees because other diagnostic and therapeutic steps should be taken with such a client. The department retains the proposed language in subsection (b)(3)(D)(iii)(XXXIX). COMMENT: One commenter stated that "multiple gestation" in paragraph (3)(D) (iv)(X) inappropriately requires consultation and transfer of the client, since a midwife can diagnose multiple gestation. RESPONSE: The department disagrees because clients with multiple gestations require appropriate medical follow up. The department retains the proposed language in subsection (b)(3)(D)(iv)(X). COMMENT: Several commenters stated that twins could be birthed at home. RESPONSE: While the department agrees that multiple births in a home setting are possible, the department disagrees with the appropriateness of such deliveries because twins are usually preterm, and at risk for numerous other complications. Therefore the department retains the proposed language in subsection (b)(3)(D)(iv)(X). COMMENT: One commenter requested that an information sheet be developed informing the client about the availability of Rh immune globulin and that the client should then be allowed to decide whether to receive the immunization. RESPONSE: The department disagrees because Rh isoimmunization is usually a preventable disease, and the department believes that midwives should strongly recommend the prophylaxis. Therefore the department retains the proposed language in subsections (b)(3)(D)(iv)(IX), (b)(4)(A)(ii)(III)(-b-)(-3-), and (b)(4)(E)(v). COMMENT: Several commenters requested deletion of the phrase "any other medical condition or symptom..." wherever it occurs in the proposed rule because the language was too vague. Several other commenters wanted this phrase amended to emphasize education rather than training. RESPONSE: While the department disagrees with the deletion of this section because all possible conditions cannot realistically be addressed, the department agrees with the word change and has added the suggested language. COMMENT: Several commenters requested that paragraph (3)(D)(iv) be amended to read "If on any assessment, the midwife determines that the client has one or more of the following conditions, she will consult, in a timely manner, with a licensed physician with current obstetric knowledge or another licensed health care provider with current obstetric knowledge operating under such a physician's supervision and upon his/her documented recommendation, transfer care of the client or otherwise follow his recommendation. If the midwife is unable to obtain a consult in a timely manner, the care of the client must be transferred to a licensed physician with current obstetric knowledge or another licensed health care provider with current obstetric knowledge operating under such a physician's supervision:..." RESPONSE: The department agrees and has amended subsection (b)(3)(D)(iv) accordingly. COMMENT: Several commenters requested that the conditions listed in paragraph (3)(D)(v) be divided into two categories. Conditions requiring consults would be listed in paragraph (3)(D)(v), and conditions requiring immediate transfer would be listed in paragraph (3)(D)(vi). RESPONSE: The department agrees and has amended subsections (b)(3)(D)(iv), (b)(3)(D)(v), and (b)(3)(D)(vi) accordingly. COMMENT: Several commenters requested that "history of incompetent cervix" under paragraph (3)(D)(iv)(I) be classified to require a consult rather than a referral. RESPONSE: The department agrees and has amended subsection (b)(3)(D)(iv)(I) accordingly. COMMENT: Several commenters stated that the phrase "history of autoimmune disease" under paragraph (3)(D)(iv)(III) be classified to require a consult rather than a referral. RESPONSE: The department agrees and has amended subsection (b)(3)(D)(iv) (III) accordingly. COMMENT: One commenter requested that the phrase "diabetes mellitus" in paragraph (3)(D)(iv)(IV) be amended to include GODM during the current pregnancy. RESPONSE: The department feels that both pre-existent and gestational diabetes warrant medical evaluation. Therefore the department retains the proposed language in subsection (b)(3)(D)(iv)(IV). COMMENT: One commenter stated that the phrase "preterm labor" in paragraph (3)(D)(v)(II) should reflect the fact that if a physician is consulted, he or she would not be a new primary provider. RESPONSE: The department disagrees because in such a situation the client may be transferred and the physician would then become the primary provider. The department retains the proposed language in subsection (b)(3)(D)(v)(II). COMMENT: One commenter stated that the wording in paragraph (3)(D)(v)(IV) be amended to be read "all breech or transverse lie noted in labor should be transported. If breech delivery is imminent no transport is necessary pending no complication". RESPONSE: The department agrees and has amended subsection (b)(3)(D)(vi)(I) accordingly. COMMENT: One commenter stated that all face presentations are potentially complicated deliveries and questioned their inclusion in the standards as stated in paragraph (3)(D)(v)(IV). RESPONSE: The department feels that mentum anterior face presentation with a normal labor progression can be safely followed by midwives. Therefore the department retains the proposed language in subsection (b)(3)(D)(vi)(I). COMMENT: One commenter requested that the phrase "herpetic lesions" in paragraph (3)(D)(v)(VI) be amended to include "positive HSV cultures within three weeks to onset of delivery". RESPONSE: The department disagrees because a client with herpetic lesions during labor requires medical intervention. The department retains proposed language in subsection (b)(3)(D)(vi)(III). COMMENT: One commenter requested that the phrase "active phase dilatation" in paragraph (3)(D)(v)(VII) be amended to read "active phase of labor with a rate of progress suggestive, in the opinion of the midwife, of maternal exhaustion, infection, dystocia unresolved with active midwifery support of labor or true CPD". RESPONSE: The department disagrees because an active phase arrest requires at least a medical consultation. Therefore the department retains the proposed language in subsection (b)(3)(D)(v)(IV). COMMENT: Several commenters requested that the phrase "second stage >>one-two hours in a multiparous woman or >>two-three hours in a primiparous woman and delivery not imminent" in paragraph (3)(D)(v)(VIII) either be amended to read "two hours of pushing with delivery not imminent in a multiparous and 2-1/2 hours of pushing in a primigravida" or be deleted because many women do not fit that standard of labor. RESPONSE: While the department agrees that not all women fit the standard of labor, the department does not support changing the time frame. The department does agree that a consultation may be appropriate in these situations. Therefore the department has relocated this issue to subsection (b) (3)(D)(v)(V). COMMENT: One commenter requested that the phrase "respiratory rate persistently >>60 breaths per minute" in paragraph (3)(D)(vii)(I)(-c-) and paragraph (3)(D)(ix)(I)(-b-) be amended to read ">>70". RESPONSE: The department disagrees because the normal respiratory rate in the neonate at the upper limit of normal is 60. Therefore the department retains the proposed language in subsections (b)(3)(D)(viii)(I)(-c-) and (b)(3) (D)(x)(I)(- b-). COMMENT: One commenter requested that the phrase "temperature >>100.4 degrees Fahrenheit" in paragraphs (3)(D)(v)(XIX) and (3)(D)(vi)(XI) be amended to read "elevated temperature >>102.4 degrees Fahrenheit". RESPONSE: The department disagrees because an elevated temperature of >>100.4 degrees Fahrenheit indicates a possible infection and the need for medical evaluation. The department retains the proposed language in subsection (b)(3)(D)(vi)(X) and subsection (b)(3)(D)(vii)(X). COMMENT: One commenter requested that the phrase "faintness, pallor or other signs/symptoms consistent with shock" in paragraph (3)(D)(v)(XX) be amended to include the wording "that doesn't improve with first aid care". RESPONSE: The department disagrees because a client suspected of being in shock warrants prompt medical evaluation. Therefore the department retains the proposed language in subsection (b)(3)(D)(vi)(XI). COMMENT: One commenter requested that the phrase "significant decrease in urine output" in paragraph (3)(D)(v)(XXVII) be amended to define "significant". RESPONSE: The department feels that an appropriately trained midwife should be able to make this assessment based upon individual circumstances. Therefore the department retains the proposed language in subsection (b)(3)(D)(v)(XI). COMMENT: One commenter requested that the phrase "persistent vomiting or diarrhea" in paragraph (3)(D)(v)(XXVIII) be amended to add "..... that lasts more than one hour after birth" and that this condition be classified as requiring a consult. RESPONSE: While the department agrees in part, it feels that limiting the time to the postpartum period would be inappropriate. The department has amended subsection (b)(3)(D)(v)(XII) accordingly. COMMENT: One commenter suggested that the phrase "foul smell to the placenta or infant" in paragraph (3)(D)(v)(XXX) be amended to add "with signs of infection" and that it should be classified to require a consult rather than a transport. RESPONSE: The department feels that the wording is self-explanatory but agrees that an immediate consult is appropriate. Therefore the department has amended subsection (b)(3)(D)(v)(XIII) accordingly. COMMENT: Several commenters requested that the phrase "retained placenta or fragment, i.e. lack of spontaneous placental expulsion within 45 minutes or evidence of incomplete placenta on post expulsion exam" in paragraph (3)(D)(v) (XXXI) be amended to add "one hour with no excessive bleeding or evidence of shock". RESPONSE: The department agrees and has amended subsection (b)(3)(D)(v)(XIV) accordingly. COMMENT: One commenter requested that the phrase "third or fourth degree perineal laceration or significant vulvar, vaginal, or cervical laceration" in paragraph (3)(D)(v)(XXXIII) be amended to include perineal suturing and permission of suppliers to sell suturing supplies as well as anesthetics to midwives. RESPONSE: The department disagrees because these activities are prohibited by the Midwifery Act, sec.17. The department retains the proposed language in subsection (b)(3)(D)(vi)(XX). COMMENT: Several commenters requested that the phrase "inability to void within six hours of delivery" in paragraph (3)(D)(v)(XXXVII) be amended to add "with adequate hydration and a full bladder". RESPONSE: The department agrees in part and has amended subsection (b)(3) (D)(v)(XVI) accordingly. COMMENT: One commenter requested that the phrase "uterine atony" in paragraph (3)(D)(v)(XXXIV) be amended to authorize the use of IV pitocin or IM methergine. RESPONSE: The department disagrees because use of prescription medications by midwives except under delegated authority from a physician is prohibited by the Midwifery Act, sec.17. Therefore the department retains the proposed language in subsection (b)(3)(D)(vi)(XVIII). COMMENT: Several commenters also requested that the phrase "significant bleeding" be added to paragraph (3)(D)(v)(XXXIV). RESPONSE: The department agrees and has amended subsection (b)(3)(D)(vi) (XVIII) accordingly. COMMENT: Several commenters requested that the phrase "significant postpartum bleeding" in paragraph (3)(D)(v)(XXXVI) be amended to change the time frame from 12 hours to two hours. RESPONSE: The department agrees and has amended subsection (b)(3)(D)(vi) (XIX) accordingly. COMMENT: Several commenters requested that the conditions "persistent severe headache" in paragraph (3)(D)(vi)(XI) and "visual disturbance" in paragraph (3)(D)(vi)(XXIV) be combined. RESPONSE: The department disagrees because these conditions can occur separately. Therefore the department retains the proposed language in subsections (b)(3)(D)(vi)(XIII) and (b)(3)(D)(vi)(XIV). COMMENT: Several commenters requested that "absence of breast milk" in paragraph (3)(D)(vi)(VIII) be deleted because nothing can be done if this condition occurs. RESPONSE: The department agrees and has deleted paragraph (3)(D)(vi)(VIII). COMMENT: Several commenters requested that the phrase ">>100.4 degrees Fahrenheit" in paragraph (3)(D)(vi)(XI) be amended to add "with signs of infection". RESPONSE: The department disagrees because any temperature >>100.4 degrees Fahrenheit could indicate an infection. Therefore the department retains the proposed language in subsection (b)(3)(D)(vi)(X). COMMENT: Several commenters requested that the phrase "signs or symptoms of mastitis" in paragraph (3)(D)(vi)(XVI) be amended to add "unresponsive to natural remedies". RESPONSE: The department agrees and has amended subsection (b)(3)(D)(vii) (XV) accordingly. COMMENT: One commenter requested that the phrase "APGAR score" in paragraph (3)(D)(vii)(I)(-a-) be amended to add "<<6 at 5 and <<7 at 20". RESPONSE: The department disagrees because the cutoffs of seven and eight are reasonable. Therefore the department retains the proposed language in subsection (b)(3)(D)(viii)(I)(-a-). COMMENT: Several commenters requested that the word "cyanotic" in paragraphs (3)(D)(vii)(II) (-i-) and (3)(D)(ix)(II)(-e-) be changed to "central cyanosis". RESPONSE: The department agrees and has amended subsections (b)(3)(D)(vii) (II)(-h-) and (b)(3)(D)(ix)(II)(-e-) accordingly. COMMENT: Several commenters requested that the phrase "physical exam" in paragraph (3)(D)(vii)(II) be amended to add the phrase "is done". RESPONSE: The department agrees and has amended subsection (b)(3)(D)(viii) (II) accordingly. COMMENT: Several commenters requested that the phrase "head/length ratio" in paragraph (3)(D)(vii)(II)(-c-) be classified as requiring a consult rather than transfer. RESPONSE: The department agrees and has amended subsection (b)(3)(D)(ix)(VI) accordingly. COMMENT: Several commenters requested that the phrases "persistent 'beefy' red skin" in paragraph (3)(D)(vii)(II)(-k-) and "beefy red skin" in paragraph (3)(D)(II)(ix)(-g-) be amended to add "in conjunction with other signs and symptoms". RESPONSE: The department agrees and has amended subsections (b)(3)(D)(viii) (II)(-j-) and (b)(3)(D)(x)(II)(-g-) accordingly. COMMENT: One commenter requested that the word "jaundice" in paragraphs (3) (D)(vii)(II)(-m-) and (3)(D)(ix)(II)(-i-) be amended to distinguish between physiologic and true jaundice. RESPONSE: The department disagrees because without laboratory evaluation, it is difficult to distinguish between the two. Therefore the department retains the proposed language in subsections (b)(3)(D)(viii)(II)(-l-) and (b) (3)(D)(x)(II)(-i-). COMMENT: Several commenters requested that the phrase "presence of rash or vesicles" in paragraphs (3)(D)(vii)(II)(-n-) and (3)(D)(ix)(II)(-j-) be amended by either deleting the word "rash" or adding the word "abnormal". RESPONSE: The department agrees and has amended subsections (b)(3)(D)(viii) (II)(-m-) and (b)(3)(D)(x)(II)(-j-) accordingly. COMMENT: Several commenters suggested that the phrase "delivered with any meconium staining on infant's skin or vernix" in paragraph (3)(D)(vii)(II)(-p-) be amended to read "delivered with meconium staining and symptoms of respiratory distress". RESPONSE: The department agrees and has amended subsection (b)(3)(D)(II) (viii)(-o-) accordingly. COMMENT: One commenter questioned the necessity of waiting 24 hours before consulting with a physician if a neonate has a condition or symptom that requires a consultation as required by paragraph (3)(D)(viii). RESPONSE: The proposed language does not require a 24-hour wait, but states that a consult must be obtained within 24 hours depending on when the condition or symptom is first observed. Therefore the department retains the proposed language in subsection (b)(3)(D)(ix). COMMENT: Several commenters requested that the phrase "birth weight <<5-1/2 pounds or >>10 pounds" in paragraph (3)(D)(viii)(I) be amended to describe a risk condition associated with a birth weight outside the stated range. RESPONSE: The department agrees and has amended subsection (b)(3)(D)(ix)(I) accordingly. COMMENT: One commenter requested that the phrase "umbilical abnormalities" in paragraph (3)(D)(viii)(II)(-c-) be amended to add more specific description. RESPONSE: The department feels the language is self-explanatory. Therefore the department retains the proposed language in subsection (b)(3)(D)(ix)(II) (-c-). COMMENT: One commenter requested that the phrase "any non-vertex delivery" in paragraph (3)(D)(viii)(III) be amended to add "that resulted in injury or needing physical evaluation". RESPONSE: The department disagrees because these infants face a high risk of complications and warrant at least a medical consult. The department retains the proposed language in subsection (b)(3)(D)(ix)(III). COMMENT: Several commenters requested that the phrase "absence of feeding in four hours" in paragraph (3)(D)(viii)(VI) be deleted because the issue is addressed elsewhere. RESPONSE: The department agrees and has deleted paragraph (3)(D)(viii)(VI). COMMENT: Several commenters requested that the phrase "conditions or symptoms noted that require a referral" in paragraph (3)(D)(ix) be amended to add "in a timely manner". RESPONSE: The department agrees and has amended subsection (b)(3)(D)(x) accordingly. COMMENT: Several commenters requested that the phrase "temperature 524>98.5 degrees Fahrenheit or <<96.5 degrees Fahrenheit axillary" in paragraph (3)(D)(ix)(I)(-c-) be changed to "temperature persistently above 99. 6 degrees Fahrenheit or <<96.5 degrees Fahrenheit axillary". RESPONSE: The department agrees and has amended subsection (b)(3)(D)(x)(I) (-c- ) accordingly. COMMENT: Several commenters requested that the physical exam of an infant during the first four-six weeks of life required in paragraph (3)(D)(ix)(II) be deleted because most midwives do not perform an in-depth exam of the infant. RESPONSE: The department disagrees because the physical condition of all infants should be evaluated as indicated. Therefore the department retains the proposed language in subsection (b)(3)(D)(x)(II). COMMENT: One commenter requested that the phrase "failure to wet eight-ten diapers" in paragraph (3)(D)(ix)(II)(-l-) be amended because most infants who have not nursed well would not wet that many diapers. RESPONSE: The department disagrees because an infant who does not wet at least eight diapers per day needs a medical evaluation. Therefore the department retains the proposed language in subsection (b)(3)(D)(x)(II)(-l-). COMMENT: One commenter requested that the phrase "failure to gain weight" in paragraph (3)(D)(ix)(II)(-p-) be amended to include "in the initial week". RESPONSE: The department disagrees because infant weight should be evaluated on an on-going basis. Therefore the department retains the proposed language in subsection (b)(3)(D)(x)(II)(-p-). COMMENT: Several commenters requested that the phrase "newborn screening" in paragraph (3)(D)(ix)(III)(-a-) be amended to add "while waiting for results of second testing". RESPONSE: The department disagrees because infants with any abnormal test results should receive a prompt medical evaluation. Therefore the department retains the proposed language in subsection (b)(3)(D)(x)(III)(-a-). COMMENT: One commenter suggested that screening the neonate for group B strep be included in paragraph (3)(D)(ix)(III) because a neonate whose mother has a positive group B strep should be tested. RESPONSE: While the department agrees with the thrust of the comment, at the present time routine screening of pregnant women for group B strep is not part of the protocol. Therefore, the department retains the proposed language in subsection (b)(3)(D)(x)(III). COMMENT: Several commenters requested that the phrase "initial antepartum visit" in paragraph (4)(A)(i)(II) be amended to delete the word "initial" because all the components of the exam are not performed initially. RESPONSE: The department agrees and has amended subsection (b)(4)(A)(i)(II) accordingly. COMMENT: Several commenters requested that the phrase "breast exam" in paragraph (4)(A)(i)(II)(-d-) be amended to add "if requested". RESPONSE: The department disagrees because all pregnant women should have a breast exam and should be taught the proper procedure for a self-breast exam. However, as some midwives do not feel that this should be part of their routine practice, the department has amended subsection (b)(4)(A)(i)(II)(-d-) to addresses their concerns. COMMENT: One commenter requested that the phrase "pelvic exam....." in paragraph (4)(A)(i)(II)(-f-) be amended or deleted, as most midwives do not have the skills to perform pelvic exams. RESPONSE: The department disagrees because a pelvic exam should be part of all routine evaluations, and appropriately trained midwives should possess the skills to perform the exam. Therefore the department retains the proposed language in subsection (b)(4)(A)(i)(II)(-f-). COMMENT: Several commenters requested that the phrase "extremity exam" in paragraphs (4)(A)(i)(II)(-i-) and (4)(A)(ii)(II)(-f-) be amended to read "assessment of varicosities, edema and reflexes". RESPONSE: The department agrees and has amended subsections (b)(4)(A)(i)(II) (- i-) and (b)(4)(A)(ii)(II)(-f-) accordingly. COMMENT: One commenter stated that "hemoglobin electrophoresis" in paragraph (4)(A)(i)(III)(-k-) is not standard practice in any Ob-Gyn setting. RESPONSE: The department disagrees and has therefore retained the proposed language in subsection (b)(4)(A)(i)(III)(-k-). COMMENT: Several commenters requested that the phrase "HIV infection, safer sex" in paragraph (4)(A)(VI)(-e-) be amended to delete the words "safer sex", since this concept is inherent in counseling for HIV infection. RESPONSE: The department agrees and has amended subsection (b)(4)(A)(VI) (-e-) accordingly. COMMENT: Several commenters requested that the requirements for "subsequent antepartum evaluation" in paragraph (4)(A)(ii)(I) be amended by deleting the specific historical categories altogether, or by replacing the categories with a recommendation to inquire if another provider has not already done so. RESPONSE: The department disagrees because each of these categories should be covered during each antepartum evaluation. Therefore the department has retained the language in revised subsection (b)(4)(A)(ii). COMMENT: Several commenters requested that "blood glucose screen" required in paragraph (4)(A)(ii)(III)(-b-)(-2-) be amended to include a two-hour postprandial test in lieu of the 50 gram glucose load. RESPONSE: The department disagrees because a two-hour postprandial glucose is not as definitive a screening test as the 50 gram glucose load. Therefore the department retains the proposed language in subsection (b)(4)(A)(ii)(II) (-b-)(- 2-). COMMENT: One commenter requested that diabetes testing be omitted because it is an unnecessary expense to the client. RESPONSE: While diabetes testing may be an added expense, all pregnant women are at risk for gestational diabetes and should be tested so that complications with the pregnancy and in the newborn can be treated or avoided if the condition is detected. Therefore the department retains the proposed language in subsection (b)(4)(A)(ii)(II)(-b-)(-2-). COMMENT: One commenter questioned the need to repeat the antibody screen at 28 weeks as required in paragraph (4)(A)(ii)(III)(-b-)(-3-). RESPONSE: An antibody screen should be repeated prior to antepartum Rh immune globulin administration to rule out interval sensitization. Therefore the department retains the proposed language in subsection (b)(4)(A)(ii)(III) (-b- )(-3-). COMMENT: One commenter stated that requiring midwives to perform MSAFP testing in paragraph (4)(A)(ii)(III)(-b-)(-4-) is inappropriate because it requires midwives to conduct genetic testing that some midwives believe can lead to abortion, and therefore violates their beliefs. RESPONSE: The department feels that the MSAFP or triple screening should be offered to all pregnant women, and that the client then may accept or decline the test. Therefore the department retains the proposed language in subsection (b)(4)(A)(ii)(III)(-4-). COMMENT: Several commenters requested that the requirement of "routine antepartum visits every two-three weeks from 28-36 weeks" in paragraph (4)(A) (iii)(II) be changed to "32-36 weeks". RESPONSE: The department disagrees because the proposed schedule represents standard practice. Therefore the department retains the proposed language in subsection (b)(4)(A)(iii)(II). COMMENT: One commenter requested that the "sterile speculum exam...." required in paragraph (4)(B)(ii)(VI)(-c-) be deleted because one should not be subjected to such an unnecessary and uncomfortable procedure. RESPONSE: The department disagrees because the proposed wording states "may be necessary". A sterile speculum exam may indeed be necessary in certain situations, such as questionable premature rupture of membranes. Therefore the department retains the proposed language in subsection (b)(4)(B)(ii)(VI)(-c-). COMMENT: One commenter stated that nutrition should be a basic component of midwifery care, and several other commenters stated that a client should be encouraged to eat a healthy well-balanced diet, which is more important than vitamin supplements. RESPONSE: The department agrees that nutrition is an important part of antepartum and perinatal care and has included references to the subject throughout the principles of care. COMMENT: One commenter stated that in order to provide optimum care, physicians should be required to gain nutritional education. RESPONSE: The proposed rules do not address physician training, and the Midwifery Board is not authorized to impose requirements on physicians. COMMENT: Several commenters requested that the phrase "appropriate evaluation of the client" in paragraph (4)(B) be amended to add "when the midwife arrives for the delivery". RESPONSE: The department agrees and has amended subsection (b)(4)(B) accordingly. COMMENT: Several commenters requested that the phrase "the midwife will appropriately monitor the client" in paragraph (4)(C) be amended to add "after the midwife's arrival for the labor and delivery". RESPONSE: The department agrees and has amended subsection (b)(4)(C) accordingly. COMMENT: One commenter requests that paragraphs (4)(C)(i)(II)(-a-), (4)(C) (i)(II)(-b-), and (4)(C)(i)(II)(-c-) concerning the monitoring of contractions be changed to a recommendation rather than a requirement because in large practices it is not feasible to monitor and record contractions as frequently as stated. RESPONSE: The department disagrees because prudent midwifery practice requires monitoring at the stated intervals. Therefore the department retains the proposed language in subsection (b)(4)(C)(ii). COMMENT: Several commenters requested that the phrase "frequency, duration, and intensity at least every 30 minutes in the active phase of the first stage" in paragraph (4)(C)(i)(II)(-b-) be amended to read "frequency, duration, and intensity at least every 30 minutes to one hour in the active phase of the first stage or as indicated by heart rate patterns". RESPONSE: The department agrees and has amended subsection (b)(4)(C)(ii)(II) accordingly. COMMENT: One commenter requested that the wording in paragraph (4)(C)(iii) (I) concerning establishing a baseline for fetal heart tones be deleted because no midwife does or will follow this standard. The commenter added that a FHT baseline is established throughout prenatal care and therefore will be established throughout labor. RESPONSE: The department disagrees, because the baseline fluctuates throughout pregnancy, and a baseline should be established at the beginning of labor. Therefore the department retains the proposed language in subsection (b) (4)(C)(iii)(I). COMMENT: Several commenters requested that the phrase "routine monitoring after rupture of membranes" in paragraph (4)(C)(i)(III)(-a-)(-4-) be amended to delete listening to fetal heart tones during the next contraction. RESPONSE: The department disagrees because one must listen during the contraction in order to know whether or not a deceleration occurs after the contraction. Therefore the department retains the proposed language in subsection (b)(4)(C)(iii)(II)(-d-). COMMENT: Several commenters requested that the phrase "membrane status" in paragraph (4)(C)(i)(V) be amended to add "foul odor". RESPONSE: The department agrees and has amended subsection (b)(4)(C)(v) accordingly. COMMENT: Several commenters requested that the phrase "application of pressure on abdomen" in paragraph (4)(C)(ii)(I) be amended to read "fundal pressure". RESPONSE: The department considers the current language to be adequate. Therefore the department retains the proposed language in section (b)(4)(C) (viii)(I). COMMENT: Several commenters requested that paragraph (4)(E)(i), "Vital signs", be amended to lengthen several of the time intervals. RESPONSE: The department agrees and has amended subsections (b)(4)(E)(i)(I) - (IV) accordingly. COMMENT: Several commenters requested that the phrase "cord blood....." in paragraph (4)(F)(i)(III)(-a-) be amended to consider situations in which cord blood cannot be obtained. RESPONSE: The department agrees and has amended subsection (b)(4)(F)(i)(III) (- a-) accordingly. COMMENT: Several commenters requested that the phrase "blood specimen for the first newborn screening....." in paragraph (4)(F)(i)(III)(-b-) be amended to add "after 36 hours". RESPONSE: The department agrees and has amended subsection (b)(4)(F)(i)(III) (- b-) accordingly. COMMENT: One commenter requested that a waiver be signed by a client documenting the client's refusal of eye prophylaxis of the newborn. RESPONSE: The department disagrees because this would constitute a violation of Health and Safety Code sec.81.091 which requires that the midwife use eye drops. COMMENT: Several commenters requested that the phrase "......to begin at approximately 12 hours of age" concerning routine pediatric care in paragraph (4)(F)(iii)(II)(-a-) be amended by deleting the stated time frame and adding the wording "to begin at birth". RESPONSE: The department agrees and has amended subsection (b)(4)(F)(iii) (II)(-a-) accordingly. COMMENT: Several commenters requested that the wording in paragraph (4)(F) (iii)(II)(-b-) regarding hepatitis B be amended to include consideration of this subject during the antepartum period. RESPONSE: The department agrees and has amended subsection (b)(4)(F)(iii) (II)(-b-) accordingly. COMMENT: Several commenters requested that the wording in paragraph (4)(F) (iii)(II)(-c-) concerning vaccine information be amended to state that a physician or other qualified health care provider be consulted for this information. RESPONSE: The department agrees and has amended subsection (b)(4)(F)(iii) (II)(-c-) accordingly. COMMENT: Several commenters requested that the wording in all sections referring to "physical exams" be amended to decrease the complexity of the examination and to change the term "physical exam" to "physical assessment". RESPONSE: The department agrees and has amended all applicable subsections accordingly. COMMENT: Several commenters requested that the language in paragraph (4)(I), "The midwife shall appropriately follow the mother..." be amended to read "The midwife appropriately encourages follow up care". RESPONSE: The department agrees and has amended subsection (b)(4)(J) accordingly. COMMENT: Several commenters requested that language be added to paragraph (4)(J)(v) regarding encouragement of the mother to take the neonate to another health care provider. RESPONSE: The department agrees and has amended subsection (b)(4)(J)(v) accordingly. COMMENT: Several commenters requested that the language in paragraphs (5)(A) and (5)(F) be amended to refer to the birth setting rather than the practice setting. RESPONSE: The department agrees and has amended subsections (b)(5)(A) and (b)(5)(E) accordingly. COMMENT: Several commenters requested that paragraph (5)(C) be amended to delete the word "supplies", because the client furnishes the supplies needed for the birth. RESPONSE: The department agrees and has amended subsection (b)(5)(C) accordingly. COMMENT: Several commenters requested that paragraphs (5)(D) and (5)(E) be amended because many clients who do not have a phone have access to one, and an "emergency transport system" could be a taxi or a private vehicle. RESPONSE: The department agrees and has amended subsection (b)(5)(D) accordingly. COMMENT: Several commenters requested that the phrase "promotes adequate personal support in the setting where the midwife practices" in paragraph (5) (G) be deleted. RESPONSE: The department agrees and has deleted the proposed paragraph (5) (G). COMMENT: Several commenters requested that the phrase "not leave the client unattended during established labor" in paragraph (5)(H) should be amended to state that the midwife shall not "leave the client unattended when in active labor". RESPONSE: The department agrees and has amended subsection (b)(5)(F) accordingly. COMMENT: Several commenters requested that paragraph (5)(K) be amended to state that "the midwife is familiar with OSHA". RESPONSE: The department accepts the recommendation in principle and has added language to subsection (b)(5)(I). COMMENT: One commenter stated that most midwives do not have the skill to analyze data. RESPONSE: The department disagree because appropriately trained midwives should have the ability to analyze client data. Therefore the department retains the proposed language in subsection (b)(8)(A). COMMENT: One commenter stated that childbirth education should be a standard of midwifery care. RESPONSE: The department agrees that childbirth education is an integral part of antepartum care and therefore has included consideration of this issue in the education and counseling sections, subsection (b)(4)(J)(vi). COMMENT: One commenter stated that an entirely new set of standards not based on a medical model should be written in which midwifery can provide a more positive model. RESPONSE: The proposed and final standards were written jointly by midwives and medical personnel. The department feels that they represent minimal standards for quality maternal and infant care irrespective of the care provider. The department therefore declines to rewrite these standards in their entirety. COMMENT: One commenter stated that developing a personal relationship with the birthing family should be a standard. RESPONSE: The department agrees and feels that the provision of care based upon the standards under consideration fosters such a relationship. COMMENT: One commenter stated that breast-feeding should be a basic standard of midwifery care. RESPONSE: The department agrees, and because breast-feeding is the preferred way of feeding an infant, it is addressed under education and counseling, subsection (b)(4)(J)(vi)(I). COMMENT: Several commenters requested that paragraph (3)(D)(iv)(V) be amended to allow all midwives to attend VBACs regardless of location, and to allow clients to choose to give birth wherever and with whomever they desire by signing a written informed consent. RESPONSE: The department considered at length the many issues associated with the controversial practice of performing vaginal birth after c-section (VBAC) in a non-hospital setting. After careful and serious deliberation, the department has revised subsection (b)(3)(iv)(V) concerning this question. COMMENT: One commenter stated that it is the responsibility of the midwifery board's administrative staff to maintain midwifery statistics. RESPONSE: While the department does keep statistics concerning midwifery on an aggregate basis, each individual midwife is also responsible for collecting and analyzing statistics concerning her own practice. Therefore the department retains the language as proposed in subsection (b)(8). COMMENT: One commenter stated that many of the descriptions of the scope of practice were unclear and impossible to comply with in writing. RESPONSE: The department disagrees and feels that the section as amended represents a clear written statement of the scope of midwifery practice. Therefore, the department retains the proposed language. COMMENT: Several commenters stated that women over 35 years of age should not be considered high risk, thereby prohibiting their choosing a midwife attendant at birth. RESPONSE: Nothing in the standards states that midwives may not attend women over 35 years of age. COMMENT: Several commenters stated that midwives are capable of assisting at the delivery of multiple gestations, breech deliveries, and of VBACs, and that midwives are able to repair large perineum tears. RESPONSE: The department concedes that midwives may be capable of delivery of multiple gestations and breeches but maintains that such deliveries are high risk and are more appropriately conducted in a hospital setting. For that reason, multiple gestations and breeches cannot be considered "normal delivery" and hence are outside the lawful scope of midwifery practice. VBAC has been considered in a prior RESPONSE. The repair of perineal lacerations is prohibited by sec.17 of the Texas Midwifery Act. Therefore the department has adopted the language in subsection (b)(3)(D)(v)(I) and subsection (b)(3)(D)(vi)(I). COMMENT: One commenter stated that there must have been a typographical error in the last statement of the sample prenatal genetic screen. The first sentence in the final paragraph should read "Any patient replying 'Yes' to questions should be offered appropriate counseling." RESPONSE: The department agrees and has made the correction. COMMENT: One commenter requested that the phrases "assessment", "physical exam", and "assessment of feeding and weight gain" in paragraphs (4)(J)(iv), (4)(J)(iv)(I), and (4)(J)(iv)(II) be amended to read "physical status" and "feeding and weight gain status". RESPONSE: The department agrees and has amended subsections (b)(4)(J)(iv), (b)(4)(J)(I), and (b)(4)(J)(iv)(II) accordingly. COMMENT: One commenter requested that the statement "hemoglobin and/or hematocrit or CBC will be done" in paragraph (4)(G)(iii) be amended to read "Hemoglobin and/or hematocrit or CBC will be strongly encouraged". RESPONSE: The department agrees and has amended subsection (b)(4)(G)(iii) accordingly. COMMENT: One commenter requested that the statement "hemoglobin and/or hematocrit or CBC will be done" in paragraph (4)(I)(iii) also be amended to read "....will be encouraged". RESPONSE: The department agrees and has amended subsection (b)(4)(I)(iii) accordingly. COMMENT: Several commenters expressed their gratitude for the efforts made in helping to keep midwifery alive. RESPONSE: The department and the midwifery board graciously accept this expression of gratitude. The commenters were individuals who expressed concerns, questions, and recommendations, both in favor of and in opposition to the rules. In keeping with the language in the revised 1994 ACOG guidelines "Vaginal Delivery After a Previous Cesarean Section," the department has amended subsection (3)(D)(iv)(V)(-a-)(-b-)(-1-) through (-6-)(-k-) to (b)(iv)(V)(-a-) through (-c-). The new section is adopted under Texas Civil Statutes, Article 4512i, sec.8A(c)(3) and sec.9(a)(4), concerning standards of practice and principles for midwifery; and Health and Safety Code, sec.12.001(b), which provides the Texas Board of Health (board) with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.37.185. Midwifery Practice Standards and Principles. (a) Standards for the Practice of Midwifery in Texas. (1) Midwifery care is provided by qualified midwives as defined by the Texas Midwifery Act, Texas Civil Statutes, Article 4512i. (2) Midwifery care supports individual rights and self-determination within the boundaries of safety. (3) Midwifery care is based upon the knowledge, skill, and judgment that foster the delivery of safe and competent care to mother and newborn, giving the newborn the opportunity for a good beginning. (4) Midwifery care is provided in accordance with established minimal standards which promote safe and competent care. The midwife implements these standards through adherence to the principles for the practice of midwifery in Texas as detailed in subsection (b) of this section. (5) Midwifery care is provided in a safe environment. (6) Midwifery care utilizes the community health care and social system to meet medical, psychosocial, economic and cultural or family needs. (7) Midwifery care is documented in complete, legible health records. (8) Midwifery care includes an ongoing process of evaluation and quality assurance. (b) Principles. Midwifery practice is based upon the acquisition of clinical skills necessary for the care of essentially normal pregnant women and newborns. These skills may be obtained through apprenticeship or within an institution. Care as defined by the Midwifery Board of the Texas Department of Health (department) includes antepartum, intrapartum, postpartum, and newborn services. The midwife is committed to maintain a high standard of professional care, to participate in continuing education, and to promote the concepts of high quality and safe practice among all Texas midwives. (1) Qualifications for midwives in Texas. The midwife: (A) is documented through the Texas Department of Health, Midwifery Program; (B) has attended an approved mandatory basic midwifery education course or has been exempted from this requirement prior to January 1, 1994; (C) shows evidence of continuing competency through an ongoing process of continuing education; and (D) is in compliance with the legal requirements of Texas while practicing in the state. (2) Clients rights. The midwife: (A) provides clients with a description of the scope of midwifery practice, both in written and oral form, which includes but is not limited to her/his: (i) midwifery experience; (ii) limitations of practice; (iii) date of expiration of documentation; (iv) date of expiration of CPR certification; (v) compliance with continuing education; (vi) compliance with the standards of practice of midwifery in Texas as adopted in rule by the Texas Department of Health; (vii) compliance with the client's individual rights relative to this paragraph; (viii) medical consultation arrangements; (ix) procedures regarding newborn blood screening; (x) practice for ophthalmia neonatorum prevention; and (xi) a delineation of the prohibited acts as detailed by the Midwifery Act of 1993. (B) provides information regarding the client's rights as follows. The client has the right: (i) prior to the administration of any drug or natural remedy to herself or her infant, to be informed by the midwife caring for her of the reason for such administration, all potential direct or indirect effects, and all risks or hazards to herself or her unborn or newborn infant which may result from the use of the drug or remedy; (ii) to be accompanied during the stress of labor and birth by someone she cares for, and to whom she looks for emotional comfort and encouragement; (iii) to be informed of any known or suspected condition which may cause her or her baby difficulty or problems. She has the right to care by a physician or other licensed health care professional operating under physician supervision for conditions or problems which are outside the scope of practice of the midwife. The client has the right to timely referral in such situations; (iv) to be informed of the name and qualifications of all individuals participating in her care; (v) to have access to and receive copies upon request of her and her baby's midwifery records which will be complete, accurate and legible; and (vi) of self-determination to decline or continue care upon the midwife's recommendation. The client's decision to exercise this right will be made in writing. The midwife will retain a copy of this document to demonstrate compliance with this section. (3) Criteria for safe and competent care. The midwife: (A) provides care only to clients determined to be at low or normal risk, as defined in the following subparagraphs, of developing complications during pregnancy, childbirth, and the postpartum and neonatal periods; (B) provides clients with information on other providers and services when requested or when care required is not within the scope of midwifery practice; (C) practices in accordance with this section; and (D) will not knowingly accept nor thereafter maintain responsibility for the prenatal, intrapartum, or postpartum care of a woman or neonatal care of an infant who has or develops a high risk condition or complication, except as detailed in clauses (i), (iv), (v), and (vi) of this subparagraph. (i) If on the initial assessment or subsequent assessments, the midwife determines or suspects that the client has any of the conditions or symptoms listed in clauses (ii) and (iii) of this subparagraph, a consult by a physician who has current obstetric knowledge or another licensed health care provider with current obstetric knowledge operating under such a physician's supervision will be obtained in a timely manner. "Consultation" refers to a particular client, not generalized advice affecting more than one woman. The consultant is to evaluate the client and then advise the midwife whether to refer the client, co-manage the client with specified medical supervision, or continue midwifery care. The midwife will document the consultation in writing. If reasonable and documented attempts have been made to consult with a licensed physician or other licensed health care provider operating under physician supervision and the physician or other provider refuses to see the client, then the midwife may continue to provide care to the client after obtaining written informed consent that the client agrees to such care and is aware that she has or may have a high-risk condition which should be evaluated by a physician. If after the client has been made aware that she has or may have a high-risk condition; and she chooses to decline medical consultation, co-management, or referral, then the midwife may continue to provide care for the client if she signs a waiver of medical referral. (ii) The midwife will recommend consultation if the client's history concerning prior pregnancies or medical history includes any of the following: (I) preterm (<<36 weeks) labor during two or more previous pregnancies; (II) preterm (<<36 weeks) rupture of membranes; (III) delivery of an infant weighing <<5-1/2 pounds or 2,500 grams at term; (IV) delivery of a large infant weighing 524>10 pounds or 4,500 grams that resulted in trauma to the infant; (V) neonatal (first month of life) death; (VI) severe postpartum hemorrhage (non-traumatic) requiring transfusion; (VII) three or more consecutive spontaneous abortions; (VIII) suspicion for an incompetent cervix; (IX) mother or current conception's father having had a previous infant or fetus with a known or suspected genetic or familial disorder. (Refer to paragraph (9) of this subsection for sample prenatal genetic screening questions which are from the American College of Obstetricians and Gynecologists (ACOG) Technical Bulletin #108.); (X) mother or current conception's father having had a previous infant or fetus with a significant congenital anomaly; (XI) pregnancy induced hypertension requiring medication, medical supervision or hospitalization; pre-eclampsia; or eclampsia; (XII) gestational diabetes (diet controlled); (XIII) intrauterine fetal demise; (XIV) shoulder dystocia that resulted in trauma to the infant; (XV) placenta previa at time of labor; (XVI) placental abruption; (XVII) Rh or other blood group isoimmunization; (XVIII) inverted uterus; (XIX) pelvic or genital tract anomaly; (XX) cardiac disease; (XXI) rheumatic fever; (XXII) renal disease, pyelonephritis, recurrent urinary tract infection, urinary calculi, or urinary tract anomaly; (XXIII) cancer; (XXIV) vascular disease; (XXV) any non A-Hepatitis; (XXVI) hepatic insufficiency; (XXVII) thyroid disease; (XXVIII) syphilis; (XXIX) thrombophlebitis or thromboembolism; (XXX) HIV positivity; or (XXXI) any other history which poses a risk to the mother or fetus as assessed by a midwife exercising ordinary skill and education. (iii) The midwife will recommend a consultation if the client's history or examination concerning her current pregnancy includes any of the following: (I) age 15 or under; (II) exposure to a teratogen during current pregnancy or six weeks prior to conception; (III) drug, tobacco and/or alcohol abuse; (IV) significant psychological dysfunction; (V) vaginal bleeding after twelve weeks; (VI) significant abdominal pain; (VII) significantly decreased fetal movement; (VIII) urinary tract infection or signs or symptoms of urinary tract infection unresponsive to natural remedies or in association with temperature 524>100.4 degrees Fahrenheit; (IX) elevated temperature 524>100. 4 degrees Fahrenheit for more than 48 hours; (X) chest pain and/or difficulty breathing; (XI) signs or symptoms of thrombophlebitis or thromboembolism; (XII) persistent, severe headaches; (XIII) visual disturbances; (XIV) seizure disorder requiring treatment; (XV) asthma requiring treatment; (XVI) pulmonary disease; (XVII) gastrointestinal or colon disease requiring treatment; (XVIII) contracted pelvis; (XIX) hypertension, a diastolic blood pressure of at least 90 mm Hg or systolic pressure of at least 140 mm Hg or a rise in the former of at least 15 mm Hg or in the latter of 30 mm Hg. The blood pressures cited should be manifested on at least two occasions six hours or more apart; (XX) severe edema of hands, face, or lower extremities; (XXI) severe varicosities of vulva or lower extremities; (XXII) intrauterine fetal demise; (XXIII) non-vertex presentation after 36 weeks; (XXIV) anemia (hemoglobin 514>10 g/dl or hematocrit 514>30%) not corrected by iron therapy; (XXV) active genital herpes at the time of delivery; (XXVI) gonorrhea, chlamydia, HPV, or pelvic inflammatory disease; (XXVII) syphilis; (XXVIII) HIV positivity; (XXIX) proteinuria, 524>+1 on two consecutive visits or 524>+2 on one visit; (XXX) glycosuria, 524>+1 on two visits (if unable to perform blood glucose screening for this finding); (XXXI) abnormal pap smear; (XXXII) abnormal fetal growth pattern or uterine discrepancy greater than four weeks on two visits unless assessment by palpation finds fetal growth appropriate for dates; (XXXIII) intrauterine growth retardation; (XXXIV) post-term pregnancy, 524>42 and zero/seven weeks; (XXXV) possible preterm (<<36 weeks) labor; (XXXVI) significant maternal trauma; (XXXVII) hyperemesis gravidarum; (XXXVIII) polyhydramnios or ogliohydramnios; (XXXIX) vaginitis other than simple, non-recurrent monilia; (XL) hepatitis, chronic hepatic dysfunction, or positive Hepatitis B surface antigen; or (XLI) any other medical or obstetric condition or symptom which could adversely affect the mother or fetus, as assessed by a midwife exercising ordinary skill and education. (iv) If on any assessment, the midwife determines that the client has one or more of the following conditions, she will consult, in a timely manner, with a licensed physician with current obstetric knowledge or another licensed health care provider with current obstetric knowledge operating under such a physician's supervision and, upon his/her documented recommendation, transfer care of the client or otherwise follow his/her recommendation. If the midwife is unable to obtain a consult, in a timely manner, the care of the client must be transferred to a licensed physician with current obstetric knowledge or another licensed health care provider with current obstetric knowledge operating under such a physician's supervision: (I) history of incompetent cervix; (II) history of gestational diabetes in a prior pregnancy requiring insulin therapy; (III) history of autoimmune disease; e.g., systemic lupus erythematosus; (IV) diabetes mellitus or gestational diabetes during current pregnancy; (V) history of prior C-section or uterine surgery; (-a-) The department agrees with the current obstetric practice of encouraging vaginal birth after C-section (VBAC). Further, it agrees with the most recent (1994) ACOG guidelines concerning VBAC which state that: (-1-) the concept of routine repeat cesarean birth should be replaced by a specific decision process between the client and the physician for a subsequent mode of delivery; (-2-) in the absence of a contraindication, a woman with one previous cesarean delivery with a lower uterine segment incision should be counseled and encouraged to undergo a trial of labor in her current pregnancy; (-3-) a woman who has had two or more previous cesarean deliveries with lower uterine segment incisions and who wishes to attempt vaginal birth should not be discouraged from doing so in the absence of contraindications; and (-4-) a trial of labor and delivery should occur in a hospital setting that has professional resources to respond to obstetric emergencies. (-b-) If, however, a client chooses not to accept the department's position that VBACs should be conducted in a hospital setting, then she may continue care with the midwife if the client signs a waiver of medical transfer and the client has not had a classical C-section. (-c-) A waiver document shall be developed by the Midwifery Board and department for use in this situation and the midwife will have each client, for whom she conducts a VBAC, sign this form. The form will be retained in the client's midwifery record; (VI) chronic hypertension; (VII) hemoglobinopathy; (VIII) preterm labor (<<36 weeks); (IX) preterm rupture of membranes (<<36 weeks); (X) multiple gestation; (XI) Rh or other blood group isoimmunization; (XII) seizure activity; (XIII) pyelonephritis; (XIV) AIDS or HIV positivity with immune compromise; (XV) cancer; or (XVI) any other medical or obstetric condition or symptom which poses a significant risk to the mother or fetus, as assessed by a midwife exercising ordinary skill and education. (v) If any of the following conditions or symptoms are noted during labor, delivery, or immediately postpartum (the first 24 hours), the midwife will immediately consult with a licensed physician who has current obstetric knowledge and, unless the physician recommends otherwise, transfer care. If a physician is not available for immediate consultation, the midwife will transfer care to a licensed physician. If delivery is imminent after recognition of one of these conditions or symptoms and transfer is not feasible, then delivery should be carried out by the midwife. Consultation and/or transfer should then occur immediately postpartum except for those conditions with an asterisk (*): (I) *multiple gestation; (II) preterm (<<36 weeks) labor; (III) *estimated fetal weight <<5-1/2 pounds or 2,500 grams; (IV) *active phase dilatation <<1cm/three-four hours; (V) *second stage >>one-two hours in a multiparous woman or >>two-three hours in a primiparous woman and delivery; (VI) *rupture of membranes for >>24 hours and not anticipated to deliver within four hours or delivery not imminent after an additional four hours; (VII) premature rupture of membranes longer than 24 hours and not in the active phase of labor; (VIII) foul smelling amniotic fluid; (IX) hypertension, a diastolic blood pressure >>90 mm Hg or systolic pressure >>140 mm Hg or a rise in the former of at least 15 mm Hg or in the latter of 30 mm Hg; (X) severe abdominal pain inconsistent with normal labor or involution; (XI) significant decrease in urine output; (XII) persistent vomiting or diarrhea; (XIII) foul smell to the placenta or infant; (XIV) retained placenta or fragment, i.e., lack of spontaneous placental expulsion within one hour with no excessive bleeding or evidence of shock, or evidence of incomplete placenta on post expulsion exam; (XV) inappropriate uterine involution; (XVI) inability to void within six hours of delivery with adequate hydration; or (XIX) any other medical or obstetric condition which poses a risk to the mother or fetus, as assessed by a midwife exercising ordinary skill and education. (vi) If any of the following conditions or symptoms are noted during labor, deliver, or immediately postpartum (the first 24 hours) , the midwife will transfer the client immediately to a physician. If delivery is imminent after recognition of one of these conditions or symptoms and transfer is not feasible, then delivery should be carried out by the midwife. Consultation and/or transfer should then occur immediately postpartum except for those conditions with an asterisk (*): (I) *non-vertex presentation; e.g., breech or transverse lie or face with position other than mentum anterior; (II) vaginal bleeding more than bloody show (prior to delivery); (III) herpetic lesions; (IV) *moderate to severe thick meconium staining of amniotic fluid; (V) *non-reassuring fetal heart rate persistent baseline rate <<120 beats per minute or >>160 beats per minute; persistent decelerations (>>10 minutes without variability or >>30 minutes with good variability) or recurring decelerations from baseline. A shorter observation interval prior to transfer may be indicated in the presence of large decreases in rate; (VI) *umbilical cord or extremity prolapse; (VII) persistent fall in blood pressure to 514>80/50; (VIII) pulse persistently >>120 or <<50; (IX) respiratory rate persistently >>30 or <<10; (X) elevated temperature, 524>100.4 degrees Fahrenheit; (XI) faintness, pallor, or other signs/symptoms consistent with shock; (XII) loss of consciousness; (XIII) persistent severe headache; (XIV) visual disturbance; (XV) seizure; (XVI) chest pain and/or difficulty breathing; (XVII) uterine inversion; (XVIII) uterine atony with significant bleeding; (XIX) significant postpartum bleeding, i.e., >>1,000cc during the first two hours following delivery of the infant; (XX) third- or fourth-degree perineal laceration, or significant vulvar, vaginal, or cervical laceration; or (XXI) any other medical or obstetric condition which poses a significant risk to the mother or fetus, as assessed by a midwife exercising ordinary skill and education. (vii) If any of the following conditions or symptoms are noted during the postpartum period, the midwife will refer the client in a timely manner to a licensed physician who has current obstetric knowledge or another licensed health care provider with current obstetric knowledge operating under such a physician's supervision: (I) significant vaginal bleeding; (II) persistent severe headache; (III) visual disturbance; (IV) seizure; (V) significant abdominal pain inconsistent with involution; (VI) chest pain and/or difficulty breathing; (VII) signs or symptoms of thrombophlebitis; (VIII) urinary problems, e.g., difficulty with initiation or emptying, pain, blood, or frequency; (IX) blood pressure 524>140 mm Hg systolic or 90 mm Hg diastolic; (X) temperature 524>100.4 degrees Fahrenheit; (XI) improper healing or infection of delivery site lacerations; (XII) inappropriate uterine involution; (XIII) foul smelling lochia; (XIV) significant edema of hands, legs, or face; (XV) signs or symptoms of mastitis unresponsive to natural remedies within 24 hours; (XVI) hemoglobin 514>10 g/dl and/or hematocrit 514>30%; or (XVII) any other medical or obstetric condition or symptom which poses a risk to the mother, as assessed by a midwife exercising ordinary skill and education. (viii) If any of the following conditions or symptoms are noted in the neonate at birth or during the immediate postpartum period (the first 24 hours), the infant will be immediately transferred to a physician: (I) vital signs that indicate the following: (-a-) APGAR score less than seven at five minutes and/or less than eight at 20 minutes; (-b-) pulse rate at rest persistently <<120 beats per minute or >>160 beats per minute during the first hour of life and then <<100 beats per minute or >>160 beats per minute; (-c-) respiratory rate persistently <<30 breaths per minute or >>60 breaths per minute and/or difficulty breathing and/or grunting and/or nasal flaring and/or sternal retraction; (-d-) persistent temperature 524>100.4 Fahrenheit or <<97.7 Fahrenheit rectally; or (-e-) requires full CPR resuscitation; (II) physical exam (done within one-two hours of birth) that indicate the following: (-a-) foul smelling infant; (-b-) birth injury; (-c-) flaccidity and/or lethargy and/or irritability; (-d-) asymmetrical movements of extremities: (-1-) spasticity; (-2-) seizure and/or twitching and/or tremor; (-3-) abnormal tone; or (-4-) persistent jitteriness; (-e-) shrill or abnormal cry; (-f-) vomiting or choking; (-g-) persistent poor suck or swallow; (-h-) central cyanosis; (-i-) pale; (-j-) persistent "beefy" red skin in conjunction with other signs and symptoms; (-k-) mottling of skin with normal temperature; (-l-) jaundice; (-m-) presence of abnormal rash or vesicles; (-n-) loss of consciousness; and (-o-) delivered with meconium staining and symptoms of respiratory distress; or (III) any other condition or symptom which poses a significant risk to the infant, as assessed by a midwife exercising ordinary skill and education. (ix) If any of the following conditions or symptoms are noted in the neonate within the first 24 to 36 hours after birth, then a consult by a licensed physician who has current pediatric knowledge or another licensed health care provider with current pediatric knowledge operating under such a physician's supervision will be obtained within 24 hours or the time specified: (I) birth weight <<5-1/2 pounds with respiratory distress or >>10 pounds with signs of hypoglycemia; (II) congenital anomaly, e.g.: (-a-) cleft lip and/or palate; (-b-) possible Down's Syndrome; (-c-) umbilical abnormalities, e.g., umbilical cord with more or less than three vessels; (-d-) abnormal abdominal wall; or (-e-) spinal dimple; (III) any non-vertex delivery; (IV) absence of urination within 12-24 hours; (V) absence of meconium passage within 24-36 hours; (VI) head/length ratio discrepancy; or (VII) any other condition or symptom which poses a risk to the infant, as assessed by a midwife exercising ordinary skill and education. (x) If any of the following conditions or symptoms are noted in the infant during the first four to six weeks of life, the neonate will be referred in a timely manner to a licensed physician who has current pediatric knowledge or another licensed health care provider with current pediatric knowledge operating under such a physician's supervision: (I) vital signs that indicate the following: (-a-) pulse rate persistently <<110 beats per minute or >>160 beats per minute; (-b-) respiratory rate persistently <<30 breaths per minute or >>60 breaths per minute and/or difficulty breathing and/or grunting and/or nasal flaring and/or sternal retraction; or (-c-) temperature persistently above 99.6 degrees Fahrenheit or <<96.5 degrees Fahrenheit axillary; (II) physical exam that indicates the following: (-a-) flaccidity and/or lethargy and/or irritability; (-b-) asymmetrical movements of extremities: (-1-) spasticity; (-2-) seizure and/or twitching and/or tremor; (-3-) abnormal tone; or (-4-) persistent jitteriness. (-c-) vomiting and/or choking; (-d-) persistent poor suck and/or poor swallow; (-e-) central cyanosis; (-f-) pale; (-g-) persistent "beefy" red skin in conjunction with other signs and symptoms; (-h-) mottling of skin with normal temperature; (-i-) jaundice; (-j-) presence of abnormal rash or vesicles; (-k-) loss of consciousness; (-l-) failure to appropriately wet eight to ten diapers per day; (-m-) failure to pass stool in a normal manner; (-n-) bloody stool and/or abdominal distention; (-o-) poor feeding, <36 weeks; (-h-) estimation of gestational age by physical findings; and (-i-) assessment of varicosities, edema, and reflexes. (III) Laboratory. The client will be encouraged to have the following laboratory tests performed: (-a-) hemoglobin and/or hematocrit or CBC; (-b-) urine dipstick for protein, glucose, and nitrites; (-c-) syphilis serology; (-d-) blood group, Rh type, and antibody screen; (-e-) hepatitis B surface antigen; (-f-) rubella screen; (-g-) pap smear; (-h-) gonorrhea test, if at risk; (-i-) chlamydia test, if at risk; (-j-) HIV test, if at risk; and (-k-) hemoglobin electrophoresis, if Black or of Italian, Greek, Mediterranean, Philippine or Oriental ancestry and not previously tested. (IV) Assessment. At the conclusion of the initial evaluation the antepartum client's overall health and risk status will be assessed. The assessment will include a consideration of at least the following: (-a-) gestational age; (-b-) maternal status; (-c-) fetal status; (-d-) nutritional/Women, Infants, and Children (WIC) status; (-e-) psychosocial status; and (-f-) educational needs. (V) Plan. A plan of care will be developed based upon the assessment of the antepartum client. The plan of care will include a referral plan for diagnosis and treatment if necessary. (VI) Education and counseling. Health education/counseling will be provided and will include consideration of at least the following (depending upon gestational age, certain of these items may be covered during subsequent visits as appropriate): (-a-) midwife services/routine; (-b-) reproductive physiology/anatomy; (-c-) roles of various members of the health care team; (-d-) caution concerning medications, recreational drugs, alcohol, tobacco, x- ray and chemical exposure, and sexual transmitted disease (STD) exposure; (-e-) HIV infection; (-f-) toxoplasmosis risk; (-g-) environmental/work hazards; (-h-) nutritional needs of pregnancy, weight gain, referral to WIC; (-i-) danger signs of pregnancy appropriate to gestational age; (-j-) when to seek medical care and where to obtain care in the case of an emergency; (-k-) delivery arrangements; (-l-) signs and symptoms of preterm labor; (-m-) labor; (-n-) rupture of membranes; (-o-) fetal movement; (-p-) minor discomforts/symptoms of pregnancy; (-q-) comfort measures; (-r-) physical changes of pregnancy, fetal growth; (-s-) sexual activity; (-t-) self breast exam; (-u-) physical activity/exercise/posture; (-v-) preparation for labor and delivery, childbirth classes; (-w-) preparation for parenthood and arrangement for infant health care; (-x-) infant feeding choices, breast-feeding should be promoted; and (-y-) family planning/ postpartum care. (ii) Subsequent antepartum evaluations. The following components will be included in each subsequent antepartum evaluation: (I) History. Each follow-up history will include an inquiry regarding at least the following historical categories: (-a-) current problems; (-b-) progress of pregnancy to include an evaluation of fetal movement after 20 weeks; (-c-) perinatal risks; and (-d-) follow-up of problems identified in previous visits. (II) Physical assessment. Each follow-up assessment will include at least the following: (-a-) weight; (-b-) blood pressure; (-c-) abdomen, to include fundal height, estimated fetal weight, and fetal heart tones; (-d-) fetal lie and presentation, if 524>36 weeks; (-e-) estimation of gestational age by physical findings; and (-f-) assessment of varicosities and edema. (III) Laboratory. Each follow-up assessment will include at least the following: (-a-) urine dipstick for protein, glucose, and nitrites; and (-b-) each client will be encouraged to have the following laboratory tests performed at the times indicated: (-1-) hemoglobin and/or hematocrit at 28 and 36 weeks; (-2-) blood glucose screening one hour post oral 50 gram glucose load at 24 to 28 weeks; (-3-) if Rh negative, and initial antibody screen negative, repeat antibody screen at 28 weeks as precursor to Rh immune globulin administration. If the screen is still negative, the midwife will recommend that the client receive Rh immune globulin. If antibody screen is positive, refer to physician; and (-4-) Maternal Serum Alpha-Fetoprotein (MSAFP) or triple screen, ideally at 16 to 18 weeks, may be done from 15 to 20 weeks. (IV) Assessment. Each follow-up evaluation will conclude with an assessment which includes a consideration of at least the following: (-a-) gestational age; (-b-) maternal status; (-c-) fetal status; (-d-) nutritional/WIC status; (-e-) psychosocial status; and (-f-) educational needs. (V) Plan. The current plan of care will be continued or modified based upon the assessment of the client. The plan will include a referral plan for diagnosis and treatment if necessary. (VI) Education and counseling. The following health education and counseling components will be discussed or reviewed at subsequent evaluations as appropriate to the client's gestational age and needs: (-a-) danger signs of pregnancy appropriate to gestational age; (-b-) signs and symptoms of preterm labor, 24-36 weeks; (-c-) true/false labor, if 524>36 weeks; (-d-) rupture of membranes; (-e-) fetal movement; (-f-) comfort measures; (-g-) weight gain; (-h-) physical activity/exercise/posture; (-i-) physical changes of pregnancy/fetal growth; (-j-) delivery arrangements; (-k-) preparation for labor and delivery, childbirth classes; (-l-) preparation for parenthood and arrangement for infant health care; (-m-) infant feeding choices, breast-feeding should be promoted; and (-n-) family planning/postpartum care. (iii) Routine antepartum visits. Routine antepartum visits will be scheduled according to the following intervals: (I) every four weeks for the first 28 weeks; (II) every two to three weeks from 28 to 36 weeks; (III) every week after 36 weeks; or (IV) more frequently, if indicated. (iv) Recommended vitamins. The midwife should recommend to all clients that they take one, over-the-counter, prenatal, multi-vitamin supplement with folic acid/iron each day (unless allergic or contraindicated). (B) The midwife will appropriately evaluate the client when the midwife arrives for the labor and delivery, by obtaining a history, performing a physical exam, and performing a laboratory evaluation. The following components will be included in the evaluation of the client: (i) History. The history will include an inquiry regarding all of the following: (I) contractions onset, frequency, duration; (II) other abdominal or pelvic pain; (III) status of membranes if ruptured, when, amount, clear versus meconium stained; (IV) vaginal bleeding; (V) fetal movement; and (VI) other problems or concerns. (ii) Physical assessment. The physical will include at least the following: (I) blood pressure; (II) pulse; (III) temperature; (IV) abdomen, to include estimated fetal weight, fetal lie and presentation, and fetal heart tones; (V) assessment of varicosities and edema; and (VI) pelvic exam (unless contraindicated) which will include the following: (-a-) external genitalia; (-b-) cervix for dilatation, effacement, station, presentation, and position; and (-c-) a sterile speculum exam, if necessary, prior to or in lieu of the cervical exam to evaluate for possible rupture of membranes. (iii) Laboratory. The laboratory assessment will include a urine dipstick for protein, glucose, and nitrites. (C) The midwife will appropriately monitor the client after the midwife's arrival for the labor and delivery. This monitoring will be done unobtrusively in order not to disturb the physiological process of labor. The following components will be included in the evaluation: (i) Vital signs. The following vital signs will be obtained: (I) blood pressure to be measured at least every two hours, or more frequently if indicated; (II) pulse to be taken at least every four hours; (III) respirations to be evaluated at least every four hours; and (IV) temperature to be measured at least every four hours unless 524>99 degrees F, then measured at least every one to two hours. (ii) Contractions. Contractions will be monitored as follows: (I) frequency, duration, and intensity at least every two hours in the latent phase of the first stage; (II) frequency, duration, and intensity at least every 30 minutes to one hour in the active phase of the first stage or as indicated by heart rate patterns; and (III) frequency, duration, and intensity at least every 15 minutes in the second stage. (iii) Fetal heart tones. Fetal heart tones will be auscultated as follows: (I) for routine monitoring, first establish a baseline by listening for several minutes before, during, and after a contraction; then listen during and for at least 30 seconds following a contraction according to the following schedule: (-a-) at least every two hours in the latent phase of the first stage; (-b-) at least every 30 minutes in the active phase of the first stage; (-c-) at least every 15 minutes in the second stage; and (-d-) for at least 30 seconds immediately after rupture of the membranes, and during and for at least 30 seconds following the next contraction. (II) For VBAC monitoring, first establish a baseline as in (I) above, then listen during and for at least 30 seconds following a contraction according to the following schedule: (-a-) at least every two hours in the latent phase of the first stage; (-b-) at least every 15 minutes in the active phase of the first stage; (-c-) at least every five minutes in the second stage; and (-d-) for at least 30 seconds immediately after rupture of the membranes, and during and for at least 30 seconds following the next contraction. (III) As indicated for bleeding or other signs of a possible problem. (iv) Cervical and vertex status. Vaginal examinations are performed to assess the progress of labor. Although necessary, they will be kept to a minimum to reduce the risk of infection. Attention will be directed toward aseptic technique. Cervical dilatation and effacement and vertex station and position will be evaluated during each exam. (v) Membrane status. Membrane status will be monitored for rupture, relative fluid volume, foul odor, and the presence of meconium once ruptured: (I) temperature monitored every four hours; (II) pulse monitored every four hours; and (III) minimal sterile vaginal exams. (vi) Intake/output status. The intake/output of the client will be monitored as follows: (I) intake all oral or other intake will be monitored on an ongoing basis; and (II) urinary output the client will be encouraged to void at least every two to three hours. Frequency and relative volume of voiding will be monitored on an ongoing basis. (vii) Subjective status. The client will be monitored for complaints and concerns. (viii>> The following will not occur: (I) application of pressure on abdomen or uterus at any stage in labor; and (II) administration by any method (buccal, vaginal, IM, IV, intranasal, etc.) of oxytocin (Pitocin, Syntocinon, Uteracon), ergot, or prostaglandins prior to or during labor. Oxytocin or ergot may be administered after delivery of the placenta only under delegated authority of a licensed physician with current obstetric knowledge. (D) The midwife will appropriately assist in normal, spontaneous vaginal deliveries. (i) When delivery is imminent, the patient will not be left unattended, nor should any attempt be made to delay the birth of the infant by physical restraint; and (ii) Forceps or vacuum extraction will not be utilized. (E) The midwife will appropriately monitor and advise the mother during the immediate postpartum period for at least two hours and until her condition is stable. The following components will be evaluated or covered during this time period: (i) Vital signs. The following vital signs will be obtained: (I) blood pressure to be measured at least every 15-30 minutes during the first hour and then every hour if stable; (II) pulse to be taken at least every 15-30 minutes during the first hour and then every hour if stable; (III) respirations to be taken at least every 15-30 minutes during the first hour and then every hour if stable; and (IV) temperature to be taken at least every four hours. (ii) Intake/output status. Intake and output will be monitored. (iii) Physical assessment. The client will be assessed frequently to assure that: (I) the uterine fundus is well contracted; and (II) bleeding is not excessive. (iv) Subjective status. The client will be monitored for complaints and concerns. (v) Laboratory and isoimmunization prophylaxis. If unsensitized and Rh negative, the client will be referred to a licensed physician with current obstetric knowledge or another licensed health care provider with current obstetric knowledge operating under such a physician's supervision within 72 hours of delivery for laboratory work-up and administration of Rh immune globulin or the midwife will obtain the necessary laboratory specimen and administer Rh immune globulin under standing delegation order from a licensed physician with current obstetric knowledge within 72 hours of delivery. (vi) Education and counseling. Health education and counseling will be provided and will include consideration of at least the following (reinforcement will occur during subsequent postpartum visits): (I) diet/nutrition; (II) bowel/bladder function; (III) postpartum bleeding; (IV) perineal care; (V) breast-feeding; (VI) warning signs; (VII) pain relief; (VIII) physical activity/exercise; (IX) sexual activity; (X) contraception; and (XI) infant care located in subparagraph (F) clause (iii) and subparagraph (J) clause (vi) of this paragraph. (F) The midwife will appropriately evaluate the newborn by monitoring the vital signs, performing a physical exam, and obtaining the laboratory tests necessary for the infant during the immediate postpartum period; provide necessary infant care; and provide pertinent education and counseling to the mother: (i) Evaluation and monitoring. The following components will be included in the evaluation and monitoring of the infant. (I) Vital signs. APGAR scores will be obtained at one minute and five minutes. If the five minute score is <<7, obtain additional scores every five minutes until twenty minutes has passed or two successive scores are 524>7. The following vital signs will be taken at 30 minute intervals for at least two hours or until the infant's temperature has stabilized, whichever is longer: (-a-) pulse; (-b-) respirations (rate and effort); and (-c-) temperature. (II) Physical exam. The physical exam will include at least the following: (-a-) skin; (-b-) head and neck; (-c-) eyes, ears, nose, and throat; (-d-) fontanel; (-e-) heart/lungs; (-f-) abdomen; (-g-) umbilical cord; (-h-) external genitalia; (-i-) back; (-j-) extremities (check for hip dislocation); (-k-) neurological exam; and (-l-) weight, length, head circumference. (III) Laboratory. (-a-) Cord blood will be taken and submitted to a state- approved lab for testing for syphilis. In the event that cord blood is not obtained, the midwife will arrange for collection of a specimen of blood from the mother within 24 hours after delivery and submit such sample to an approved laboratory; and (-b-) The blood specimen for the first newborn screening will be obtained after 36 hours of age. It should be obtained after the baby has been breast- feeding or on protein (milk) feeding for at least 24 hours. The second screen will be done between one and two weeks of age. (IV) Monitoring. The newborn will be observed for a minimum of two hours if stable with no signs of distress. (ii) Care of the infant. The following components will be included in the care of the infant. (I) Prophylaxis. Eye treatment will be provided within two hours after birth using one of the CDC approved ophthalmic preparations, i.e., silver nitrate, erythromycin, or tetracycline; and (II) Feeding. Feeding can begin in the immediate newborn period if the infant is stable with no signs of distress. (iii) Education and counseling. The following components will be included in education and counseling of the mother: (I) Signs and symptoms. The significance of the following if observed in the newborn will be discussed: (-a-) poor suck; (-b-) abnormal cry; (-c-) irritability, lethargy; or (-d-) elimination: (-1-) abnormalities with urine; or (-2-) abnormalities with stool. (II) Health care and immunization. Information regarding health care and immunization will be provided as follows: (-a-) Routine pediatric care by a licensed physician with current pediatric knowledge or another licensed health care provider with current pediatric knowledge operating under such a physician's supervision will be recommended to begin at birth. Arrangements with an appropriate physician or other health care provider should be made during the antepartum period; (-b-) The administration of the first hepatitis B vaccine at 12 hours of age will be discussed; the client will also be educated during the antepartum period about hepatitis B and the newborn hepatitis B vaccine; and (-c-) The client should be referred to a licensed physician or other health care provider for vaccine information. (G) The midwife will appropriately evaluate the mother at one to two days postpartum, including the following components. (i) History. The history will include consideration of at least the following: (I) current problems; (II) abdominal/uterine/perineal pain; (III) bleeding; (IV) intake/output; and (V) breast-feeding. (ii) Physical assessment. The physical assessment will include at least the following: (I) blood pressure; (II) pulse; (III) respirations; (IV) temperature; (V) breasts; (VI) abdomen/fundus; (VII) perineum; and (VIII) assessment of varicosities and edema. (iii) Laboratory. Hemoglobin and/or hematocrit or CBC will be strongly encouraged. (iv) Assessment. The assessment will include at least the following: (I) physical status; (II) nutritional/WIC status; and (III) psychosocial status. (v) Plan. A plan of care will be developed based upon the assessment of the client. The plan of care will include a referral plan for diagnosis and treatment if necessary. The client will be counseled regarding family planning, contraception, and routine health care provided by a licensed physician or another licensed health care provider supervised by a licensed physician. The client's prenatal, multi-vitamin supplement with folic acid/iron should be continued during the postpartum period unless contraindicated. (H) The midwife will appropriately evaluate the mother at two to three weeks postpartum, including the following components: (i) History. The history will include consideration of at least the following: (I) drugs/alcohol/tobacco; (II) medications; (III) current problems; (IV) nutrition; (V) bowel/bladder function; (VI) abdominal/uterine/perineal pain; (VII) bleeding; and (VIII) breast-feeding. (ii) Physical assessment. The physical assessment will include at least the following: (I) blood pressure; (II) pulse; (III) weight; (IV) abdomen/fundus; (V) perineum; and (VI) assessment of varicosities and edema. (iii) Assessment. The assessment will include at least the following: (I) physical status; (II) nutritional/WIC status; and (III) psychosocial status. (iv) Plan. The current plan of care will be continued or modified based upon the assessment of the client. Family planning, contraception, and the client's medical postpartum follow up will be discussed. (I) The midwife will appropriately evaluate the mother at four to six weeks postpartum, including the following components. (i) History. The history will include consideration of at least the following categories: (I) drugs/alcohol/tobacco; (II) medications; (III) allergies; (IV) current problems; (V) abdominal/uterine/perineal pain; (VI) nutrition; (VII) bowel/bladder function; (VIII) bleeding; (IX) menstruation; (X) gynecologic; (XI) sexual activity; (XII) contraception; and (XIII) abuse/trauma. (ii) Physical exam/assessment. The physical exam/assessment will include at least the following: (I) blood pressure; (II) pulse; (III) weight; (IV) abdomen; (V) pelvic exam to include external genitalia, vagina, cervix, uterus, and adnexa; and (VI) assessment of varicosities and edema. (iii) Laboratory. Hemoglobin and/or hematocrit or CBC will be encouraged. (iv) Assessment. The assessment will include at least the following: (I) physical status; (II) nutritional/WIC status; and (III) psychosocial status. (v) Plan of care. A plan of care will be developed based upon the assessment of the client. The plan of care will include a referral plan for diagnosis and treatment if necessary. Family planning, contraception, and routine health care follow up provided by a licensed physician or other licensed health care provider operating under the supervision of a licensed physician should be reiterated. (J) The midwife appropriately encourages follow-up care of the infant in concert with the mother for the first four to six weeks postpartum. The following components will be included in each evaluation of the newborn. (i) History. The history will include consideration of at least the following categories: (I) feeding; (II) bowel and bladder function; (III) concerns of mother; (IV) problems; (V) illnesses; (VI) allergies; and (VII) evaluations by other health care providers. (ii) Vital signs. The following vital signs will be taken: (I) pulse; (II) respiratory rate; and (III) temperature. (iii) Physical assessment. The physical assessment will include at least the following: (I) general health; (II) muscle tone; (III) feeding pattern; (IV) color; (V) skin condition; (VI) elimination; and (VII) cumulative weight gain. (iv) Assessment. The infant's overall health and risk status will be assessed. The assessment will include at least the following: (I) physical status; and (II) feeding and weight gain status. (v) Plan of care. A plan of care will be developed based upon the assessment of the infant. The plan of care will include a referral plan for diagnosis and treatment if necessary. The midwife will encourage the mother to take the infant to a licensed physician with current pediatric knowledge or another licensed health care provider with current pediatric knowledge operating under such a physician's supervision for a complete six week assessment. (vi) Education and counseling. Health education and counseling will be provided to the mother and reviewed as appropriate to the infant's age and needs. It will include consideration of at least the following: (I) diet, nutrition; (II) bowel and bladder function; (III) growth, weight gain; (IV) bathing; (V) clothing; (VI) injury/poison prevention; (VII) danger signs, illness; (VIII) medical care and follow up; and (IX) immunizations. (5) Safe environment. The midwife: (A) assesses the birth setting for reasonable freedom from environmental hazards; (B) arranges, with the cooperation of the woman and family, the intended birth place; (C) brings her/his own equipment; (D) will not make arrangements for a home delivery if there is no phone available at the home or nearby or an adequate emergency transport system; (E) promotes involvement of family and support persons in the birth setting; (F) does not leave the client unattended during established active labor; (G) is available and responds promptly to her client's needs; (H) follows accepted infection control procedures regarding equipment, examinations, and procedures; and (I) is familiar with and practices universal precautions established by Occupational Safety and Health Administration (OSHA) guidelines. (6) Community systems. The midwife: (A) collaborates and consults with and refers to the available medical and health care community; (B) utilizes ancillary health and social community services; and (C) demonstrates knowledge of psychosocial, economic, cultural, and family factors that may affect care, appropriate collaboration, and referral. (7) Midwifery care records. The midwife: (A) completely and accurately documents the client's history, physical exam, laboratory test results, antepartum visits, consultation reports, referrals, labor, delivery, postpartum visits, and neonatal evaluations at the time midwifery services are delivered and when reports are received; (B) utilizes a record format that facilitates communication of information to consultants or other appropriate providers of care; (C) facilitates clients' access to their own records; (D) maintains the confidentiality of client records; and (E) retains records for a minimum of five years. (8) Evaluation and quality assurance. The midwife: (A) collects client care data systematically and is involved in analysis of that data for evaluation of the process and outcome of care; (B) seeks consultation to review problems identified by the midwife or by other professionals or consumers in the community; and (C) acts to resolve problems that are identified. 12> (9) Sample Prenatal Genetic Screen. The following questions on this sample prenatal genetic screening form should be answered to determine possible risks. FIGURE 1: 25 TAC sec.37.185(b)(9) 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 December 2, 1994. TRD-9451804 Susan K. Steeg General Counsel Texas Department of Health Effective date: December 23, 1994 Proposal publication date: July 8, 1994 For further information, please call: (512) 458-7236 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part XVI. Coastal Coordination Council Chapter 503. Coastal Management Program 31 TAC sec.503.1 The Coastal Coordination Council (council) adopts an amendment to sec.503. 1, establishing the boundary of the Texas Coastal Management Program (CMP), without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7875). The amendment removes Liberty County from the CMP boundary because Liberty County is not a coastal county. This amendment is adopted because Liberty County was the only county within the initial CMP boundary that does not include or border on coastal waters. Liberty County was originally included in the CMP boundary because a segment of the Trinity River subject to tidal influence enters Liberty County. Because federal regulations do not require that the CMP boundary include all waters subject to tidal influence, the council decided to amend sec.503.1 and remove Liberty County from the CMP boundary. Section 306(d)(2)(A) of the federal Coastal Zone Management Act (CZMA), 16 United States Code Annotated sec.1455(d)(2)(A), requires that the CMP identify the boundaries of the program. The CZMA regulations require that the boundary include four elements: the inland boundary, the seaward boundary, areas excluded from the boundary, and interstate boundaries. Of these four elements, only the location of the inland boundary is subject to any significant administrative discretion. The other three elements refer to recognized boundaries. The CZMA regulations require that the inland boundary include "those areas the management of which is necessary to control uses which have direct and significant impacts on coastal waters." Code of Federal Regulations, Title 15, Part 923, sec.923.31(a)(1). There are other statutory criteria. For instance, the regulations also require that the boundary include all waters under saline influence, beaches, islands, salt marshes, wetlands, and transitional and intertidal areas and that it be drawn in such a manner as to be easily recognizable. Section 304(3) of the CZMA, 16 United States Code Annotated sec.1453(3), defines "coastal waters" as "those waters, adjacent to the shorelines, which contain a measurable quantity or percentage of sea water, including, but not limited to, sounds, bays, lagoons, bayous, ponds, and estuaries." The Code of Federal Regulations, Title 15, Part 923, sec.923.31(a)(3), requires that the inland boundary of the CMP include all "waters under saline influence." Liberty County does not contain such "coastal waters." The inland extent of coastal waters (i.e., waters under saline influence) up the Trinity River ends near the I-10 bridge in Chambers County. Furthermore, the council has determined that there are no areas within Liberty County which must necessarily be included within the CMP boundary to control uses having a direct and significant impact on coastal waters. Therefore, it is not necessary to include Liberty County within the CMP boundary. The public comment period closed on November 10, 1994. The council received three written comments on the proposed boundary. Two commenters supported the removal of Liberty County from the CMP boundary and further recommended that the council draw the inland boundary along the Oil Spill Prevention and Response Act's Coastal Facility Designation Line (OSPRA line, found at sec.19.2 of this title). The other commenter opposed the removal of Liberty County at this time. All the material issues raised by the commenters are identified and responded to below. The groups and associations offering comment on the proposed rule and their positions are as follows: In support: Texas Railroad Commission Texas Independent Producers & Royalty Owners Association In opposition: Office of Ocean and Coastal Resource Management, U.S. Department of Commerce Two commenters suggested that the council adopt the OSPRA line as the inland boundary. The council determined when adopting the initial CMP boundary that the OSPRA line was not appropriate because it was not intended to encompass all the uses which have a direct and significant impact on coastal waters. Instead, the OSPRA line's location was intended to delineate the location of terminal facilities from which an oil spill represents a threat to coastal waters. The CZMA demands a broader consideration of activities impacting coastal waters than oil spills from terminal facilities. The OSPRA line is also not as easily recognizable to the general public as county lines. Finally, adoption of the OSPRA line would be inappropriate at this time, as such an action is outside the scope of the proposed amendment, which were limited to the removal of Liberty County. Such a substantial amendment to the CMP boundary would require a new proposal from the council. The council has not foreclosed the possibility of reexamining the boundary if new and convincing information arises suggesting that the boundary should be adjusted. In fact, a work group has been assembled and has begun meeting to consider additional changes to the CMP boundary, including adoption of the OSPRA line. One commenter noted that the Code of Federal Regulations, Title 15, Part 923, sec.923.31(a)(4), requires that the inland boundary include all "salt marshes and wetlands" and that Liberty County includes "coastal wetlands," as defined in sec.501.3(b)(5) of this title. Liberty County does not contain any saline waters. Therefore, salt marshes and wetlands do not occur within Liberty County. The definition of "coastal wetlands" in sec.501.3(b)(5) is limited by the definition of "coastal natural resource areas" in sec.501.3(a)(5) . All coastal natural resource areas are limited to the "coastal area." The CMP boundary establishes the "coastal area." With the adoption of this amendment removing Liberty County from the CMP boundary, any coastal natural resource areas that previously had been identified within Liberty County (e.g., coastal wetlands) will no longer qualify as coastal natural resource areas. One commenter stated that the council should indicate whether any coastal storm surge or 100-year coastal floodplain are located in Liberty County. Liberty County does not include any areas subject to coastal storm surge or coastal floodplain. One commenter stated that because sec.501.2(a) of this title designates "waters under tidal influence" as coastal natural resource areas, those areas of Liberty County that include waters under tidal influence should be included within the CMP boundary. The designation of coastal natural resource areas in sec.501.2(a) is limited by the definition of "coastal natural resource area" in sec.501.3(a)(5), which is limited to areas within the CMP boundary. With the adoption of this amendment removing Liberty County from the CMP boundary, any coastal natural resource areas that previously had been identified within Liberty County (e.g., waters under tidal influence) will no longer qualify as coastal natural resource areas. The amendment is adopted under Texas Natural Resources Code, sec.33.204(a), which provides the council with the authority to promulgate rules adopting the CMP goals and policies. 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 December 6, 1994. TRD-9451961 Garry Mauro Chairman Coastal Coordination Council Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 305-8597 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part IX. Texas Commission on Jail Standards Chapter 251. General 37 TAC sec.sec.251.1-251.9 The Texas Commission on Jail Standards adopts the repeal of sec.sec.251.1-251. 9, concerning General Rules, without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7876). These rules are being repealed to allow adoption of new rules. The repeals function to delete vague language and allow for new concise and current rules. No comments were received regarding adoption of the repeals. The repeals are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend, or change rules and procedures if necessary. 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 December 5, 1994. TRD-9451932 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 37 TAC sec.sec.251.1-251.6 The Texas Commission on Jail Standards adopts new sec. sec.251.1-251.6, concerning General Rules. Section 251.1 and sec.251.3 are adopted with changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7876). Sections 251.2, 251.4-251.6 are adopted without changes and will not be republished. Adoption of these rules revises jail standards to make them concise, current and comprehensible. The rules function to provide new regulations that encompass the current standards of the commission. No comments were received regarding adoption of the new sections. The new sections are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend or change rules and procedures if necessary. sec.251.1. Authority. The Texas Legislature created the Commission on Jail Standards in 1975 to implement a declared state policy that all county jail facilities conform to minimum standards of construction, maintenance and operation. In 1983, the Texas Legislature expanded the jurisdiction of the commission to include county and municipal jails operated under vendor contract. In 1991, the Texas Legislature added the requirement for count, payment, and transfer of inmates when precipitated by crowded conditions as well as expanding the commission's role of consultation and technical assistance. In 1993, the legislative function expanded the role of the commission again by requiring that it provide consultation and technical assistance for the State Jail program. It is the duty of the commission to promulgate reasonable written rules and procedures establishing minimum standards, inspection procedures, enforcement policies and technical assistance for: (1) the construction, equipment, maintenance, and operation of jail facilities under its jurisdiction; (2) the custody, care and treatment of inmates; (3) programs of rehabilitation, education, and recreation for inmates confined in county and municipal jail facilities under its jurisdiction. sec.251.3. Opinions and Advice. Except as otherwise expressly stated herein, advice given, statements made, and opinions expressed orally, or in writing, by the staff of the commission in response to inquiries, or otherwise, shall not be considered binding upon the commission in connection with any matter requiring the approval, consent, or adjudication of the commission. 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 December 5, 1994. TRD-9451933 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 Chapter 253. Definitions 37 TAC sec.253.1 The Texas Commission on Jail Standards adopts the repeal of sec.253.1, concerning Definitions, without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7877). This rule is being repealed to allow adoption of new definitions. The repeal functions to delete vague language and allow for new concise and current definitions. No comments were received regarding adoption of the repeal. The repeal is adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend, or change rules and procedures if necessary. 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 December 5, 1994. TRD-9451934 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 The Texas Commission on Jail Standards adopts new sec.253.1, concerning Definitions, with changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7877). Adoption of this rule revises jail standards definitions to make them concise, current and comprehensible. The rule functions to provide new and revised definitions. No comments were received regarding adoption of the new section. The new section is adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend, or change rules and procedures if necessary. sec.253.1. Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. Administrative Separation -The assignment of an inmate to a special housing unit, usually a separation or single cell, when staff determines that such close custody is needed for the safety of inmates or staff, for the security of the facility, or to promote order in the facility. Capacity-The number of inmates a facility is authorized by the commission to house, excluding holding, detoxification, medical, and violent cells. Commission-Texas Commission on Jail Standards. Control Area-The area inside the security perimeter to which inmates have only controlled access. Control Room-A secured, enclosed room which contains facility door controls, intercom panels and/or fire alarm panels. Day Room-A space within or adjacent to single cells, multiple occupancy cells, and dormitories specifically for inmate day time activities. Detoxification Cell -A cell designed for the temporary holding of intoxicated persons. Direct Supervision -An inmate supervision management style in which corrections officer(s) are stationed inside a housing unit 24 hours per day. Disabled-Persons who have a physical or mental impairment that substantially limits one or more of the major life activities of such individuals. Dormitory-A cell designed to accommodate nine to 48 inmates. Existing Facility -A county jail, lockup, or low-risk facility that was being operated as such on December 23, 1976. Guard Station-A designated space from which a guard performs his/her functions. Holding Cell-A cell designed for the temporary holding of inmates. Inmate Housing Area-Cells and day rooms where inmates are assigned. Inmate Occupied Area-Any area in the facility normally occupied by inmates. May-Permissive or optional. Multiple Occupancy Cell-A cell designed to accommodate two to eight inmates. Owner-A county commissioner's court, municipality, or private vendor who holds title to a facility. Safety Vestibule -An enclosed space, served by at least two doors, that serves as a passageway between two areas. Sally Port-A secured space inside or abutting a facility for vehicles to deliver or pick up inmates or goods. Security Perimeter -The outer limits of the facility where construction prevents egress by inmates or ingress by unauthorized persons or contraband. Separation Cell -A special purpose cell designed to accommodate one person. The cell minimally contains a bunk, toilet, lavatory, shower, floor drain, mirror, table, and seat. This cell is used to house inmates requiring protection or whose behavior requires close supervision. Shall-Mandatory and required for compliance. Should-Recommended but not required for compliance. Single Cell-A cell designed to accommodate one inmate. Small Jail-A facility with a capacity of less than 50 inmates. Special Purpose Cell-Detoxification cell, holding cell, separation cell, violent cell, and medical cell. These cells are not required to be provided with day rooms or safety vestibules. Violent Cell-A single occupancy padded cell for the temporary holding of inmates harmful to themselves and or others. 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 December 5, 1994. TRD-9451935 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 Chapter 289. Inmate Work Assignments in County Jails 37 TAC sec.sec.289.1-289.6 The Texas Commission on Jail Standards adopts the repeal of sec.sec.289.1-289. 6, concerning Inmate Work Assignments in County Jails, without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7878). These rules are being repealed to allow adoption of new rules. The repeals function to delete vague language and allow for new concise and current rules. No comments were received regarding adoption of the repeals. The repeals are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance and operation of county jails. 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 December 5, 1994. TRD-9451936 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 Chapter 289. Work Assignments 37 TAC sec.sec.289.1-289.5 The Texas Commission on Jail Standards adopts new sec. sec.289.1-289.5, concerning Work Assignments, without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7878). Adoption of these rules revises jail standards to make them concise, current and comprehensible. The rules function to provide new regulations that encompass the current standards of the commission. No comments were received regarding adoption of the new sections. The new sections are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance and operation of county jails. 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 December 5, 1994. TRD-9451937 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 Chapter 291. Plans for Inmate Privileges in County Jails The Texas Commission on Jail Standards adopts the repeal of sec.291.1, concerning Plans for Inmate Privileges in County Jails, without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7879). This rule is being repealed to allow adoption of new rules. The repeal functions to delete vague language and allow for new concise and current rules. No comments were received regarding adoption of the repeal. The repeal is adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance and operation of county jails. 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 December 5, 1994. TRD-9451938 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 Chapter 291. Services and Activities 37 TAC sec.sec.291.1-291.5 The Texas Commission on Jail Standards adopts new sec. sec.291.1-291.5, concerning Services and Activities. Sections 291.2-291.5 are adopted with changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7879). Section 291.1 is adopted without changes and will not be republished. Adoption of these rules revises jail standards to make them concise, current and comprehensible. The rules function to provide new regulations that encompass the current standards of the commission. No comments were received regarding adoption of the new sections. The new sections are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance and operation of county jails. sec.291.2. Inmate Correspondence Plan. Each facility shall have and implement a written plan, approved by the commission, governing inmate correspondence. The plan shall provide for the handling of privileged and nonprivileged correspondence, both outgoing and incoming, and shall provide for the collection and distribution of correspondence. (1) General Requirements. (A) Inmates shall be permitted to send as many letters of as many pages as they desire, to whomever they desire. Inmate to inmate correspondence may be prohibited where legitimate penological interest exists; (B) Inmates may receive correspondence in any quantity, amount, and number of pages; (C) Inmates shall be allowed to retain writing materials, stamps, and correspondence in reasonable amounts; (D) If requested, indigent inmates shall be furnished an unlimited supply of paper, pencils, envelopes, and stamps to correspond with their attorney(s) and the courts. Additionally, indigent inmates shall be furnished paper, pencils, envelopes, and stamps to post at least three letters a week for all other correspondence. (E) Correspondence may be rejected, provided it is a violation of the inmate rules. For purposes of this plan such correspondence is defined as: (i) containing information regarding the manufacture of explosives, weapons, or drugs; (ii) containing material that a reasonable person would construe as written solely for the purpose of communicating information designed to achieve the break down of jails through inmate disruption such as strikes or riots; and (iii) a specific factual determination has been made that the publication is detrimental to inmates rehabilitation because it would encourage deviate criminal sexual behavior. (2) Privileged Correspondence. (A) Correspondence addressed to or received from the following persons or organizations shall be considered privileged correspondence: (i) officials of the federal, state, and local courts; (ii) all federal officials and officers, including the President of the United States; (iii) state officials and officers, including the Texas Commission on Jail Standards and the Governor; (iv) letters to bonafide news media; and (v) the inmate's attorney(s). (B) Outgoing correspondence addressed to the persons listed in subparagraph (A) of this paragraph shall not be opened or interfered with unless a search warrant is obtained. (C) Incoming correspondence from correspondents listed in subparagraph (A) of this paragraph shall be opened only in the presence of the inmate with inspection limited to locating contraband. Whenever jail officials have probable cause to suspect that the incoming letter is part of an attempt to formulate, devise or otherwise effectuate a plan to escape from the jail, or to violate state or federal laws, officials shall obtain a search warrant prior to opening and reading the correspondence of the individual involved. (3) Nonprivileged Correspondence. (A) Mail addressed to or received from persons or organizations not listed in paragraph (2)(A) of this section shall be considered nonprivileged correspondence. (B) Outgoing correspondence may be opened and read. Correspondence may be censored provided a legitimate penological interest exists. A copy of the original correspondence should be retained. (C) Incoming correspondence may be opened and read. Correspondence may be censored provided a legitimate penological interest exists. A copy of the original correspondence should be retained. If contraband is discovered, it shall be confiscated and the inmate advised of the action. sec.291.3. Inmate Commissary Plan. Each facility shall have and implement a written plan, approved by the commission, governing the availability and use of an inmate commissary which allows for the purchase of hygiene items and sundries. The plan shall: (1) indicate type of services, in-house or vendor; (2) indicate frequency of services; (3) provide procedures for inmates obtaining items; (4) provide for quarterly audits by the county auditor in accordance with the Local Government Code, sec.351.0415; and (5) provide that all expenditures from commissary proceeds be made in accordance with the Local Government Code, sec.351.0415. sec.291.4. Inmate Visitation Plan. Each facility shall have and implement a written plan, approved by the commission, governing inmate visitation. The plan shall: (1) indicate frequency of visitation periods; each inmate shall be allowed a minimum of two visitation periods per week of at least 20 minutes duration each; (2) provide that at least one visitation period be allowed during evenings or week ends; (3) provide that pretrial detainees be permitted more generous visitation than convicted persons; (4) provide for reasonable attorney/client visitation; (5) provide procedures for the selection of visitors, including inmates' minor children. Accompaniment by parent, guardian, or legal counsel may be required. (6) define procedures where contact visitation is permitted; and (7) contain procedures for emergency visitation. sec.291.5. Inmate Religious Services Plan. Each facility shall have and implement a written plan, approved by the commission, governing religious access comparable to that normally available in the community. Where group services are held, provisions shall be made for the removal of inmates not wishing to participate. The plan shall: (1) allow for visitation and volunteer programs; and (2) provide for access to religious leaders in addition to normal visitation and shall allow an inmate to communicate with a minister of his/her choosing consistent with security restrictions. 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 December 5, 1994. TRD-9451939 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 Chapter 293. Female Inmates in County Jails 37 TAC sec.293.1 The Texas Commission on Jail Standards adopts the repeal of sec.293.1, concerning Female Inmates in County Jails, without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7880). This rule is being repealed to allow adoption of new rules. The repeal functions to delete vague language and allow for new concise and current rules. No comments were received regarding adoption of the repeal. The repeal is adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance and operation of county jails. 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 December 5, 1994. TRD-9451940 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 Chapter 295. Plans for Emergencies, Fire Prevention, Critical Articles in County Jails 37 TAC sec.sec.295.1-295.4 The Texas Commission on Jail Standards adopts the repeal of sec.sec.295.1-295. 4, concerning Plans for Emergencies, Fire Prevention, Critical Articles in County Jails, without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7881). These rules are being repealed to allow adoption of new rules. The repeals function to delete vague language and allow for new concise and current rules. No comments were received regarding adoption of the repeals. The repeals are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance and operation of county jails. 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 December 5, 1994. TRD-9451941 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 Chapter 297. Compliance and Enforcement 37 TAC sec.sec.297.1-297.13 The Texas Commission on Jail Standards adopts the repeal of sec.sec.297.1-297. 13, concerning Compliance and Enforcement, without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7881). These rules are being repealed to allow adoption of new rules. The repeals function to delete vague language and allow for new concise and current rules. No comments were received regarding adoption of the repeals. The repeals are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend, or change rules and procedures if necessary. 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 December 5, 1994. TRD-9451942 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 The Texas Commission on Jail Standards adopts new sec. sec.297.1-297. 13, concerning Compliance and Enforcement. Section 297.11 is adopted with changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7881). Sections 297.1-297.10, 297.12, and 297. 13 are adopted without changes and will not be republished. Adoption of these rules revises jail standards to make them concise, current and comprehensible. The rules function to provide new regulations that encompass the current standards of the commission. No comments were received regarding adoption of the new sections. The new sections are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend or change rules and procedures if necessary. sec.297.11. Request for Administrative Hearing. (a) If the responsible officials disagree with a commission action and have exhausted all remedies under sec.297.10 of this title (relating to Review of Commission Action), the officials may request, within 15 days after the date thereof, an administrative hearing under Chapter 301 of this title (relating to Rules of Practice in Contested Cases), upon any matter of fact or law with which they disagree. (b) The request for hearing shall be effective if post marked within 15 days from the date of the remedial order or action on application for variance, or if it is otherwise received by the commission within such 15-day time period. The request for hearing shall be directed to the chairman of the commission and shall contain the following statements: (1) the legal authority and jurisdiction under which the hearing should be held; (2) the particular statutes, sections of statutes, and rules involved; (3) a short, plain recital of the errors of fact or law for which review is sought, stating in detail the facts justifying the amendment or reversal of the order or action of the commission; and (4) the name and address of the person or representative to whom notices or other written communications shall be directed, and the name and address of the person or representative who will appear at the hearing and the name and address of the person or persons on whose behalf he will appear. (c) While subsections (a) and (b) of this section will be reasonably construed, a request for hearing, if not made in the time and manner herein provided, shall be deemed waived, and in such event, the remedial order or action on application for variance of the commission shall become final. (d) Upon the receipt of a timely request for hearing, the commission shall request a hearing be scheduled by the office of Administrative Hearings. 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 December 5, 1994. TRD-9451943 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 Chapter 299. Variance Procedure Rules 37 TAC sec.sec.299.1-299.6 The Texas Commission on Jail Standards adopts the repeal of sec.sec.299.1-299. 6, concerning Variance Procedure Rules, without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7884). These rules are being repealed to allow adoption of new rules. The repeals function to delete vague language and allow for new concise and current rules. No comments were received regarding adoption of the repeals. The repeals are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend, or change rules and procedures if necessary. 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 December 5, 1994. TRD-9451944 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 The Texas Commission on Jail Standards adopts new sec. sec.299.1-299.6, concerning Variance Procedure Rules. Sections 299.1, 299.3, and 299.5 are adopted with changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7884). Sections 299.2, 299.4, and 299.6 are adopted without changes and will not be republished. Adoption of these rules revises jail standards to make them concise, current and comprehensible. The rules function to provide new regulations that encompass the current standards of the commission. No comments were received regarding adoption of the new sections. The new sections are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend, or change rules and procedures if necessary. sec.299.1. Policy. Local Government Code, Chapter 351 and Government Code, Chapter 511, Vernon's Annotated Civil Statutes, and these sections prescribe minimum standards for the construction, equipment, maintenance, operation, personnel, programs, services, and for the custody, care and treatment of inmates of county facilities and municipal facilities, operated under vendor contract. They are in the public interest of the state of Texas and should in all instances be reasonably enforced by the commission. sec.299.3. Contents. An application for variance shall include: (1) the name, address, and signature of the elected or appointed official(s) having jurisdiction of the facility for which the variance is being requested; (2) the specific statute, sections of statutes, and/or rules for which the variance is being requested; (3) the existing condition(s) that requires a variance or the desired condition(s) that would require a variance; (4) the projected cost to achieve compliance without a variance; (5) the effect the variance, if granted, would have on the operations and sanitation of the facility and on the custody, safety, health, and supervision of the inmates; (6) the length of time for which the variance is being requested; and (7) any additional information or attachments demonstrating justification for the variance. sec.299.5. Determination/Notice. The commission shall consider each application for variance and shall enter its order granting or denying the application in whole or in part. Notice of the order of the commission shall be mailed or delivered in person to the official(s) named in the application for variance. 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 December 5, 1994. TRD-9451945 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 Chapter 300. Fees and Payments The Texas Commission on Jail Standards adopts the repeal of sec.sec.300.1-300. 6, and 300.21-300.28, concerning Fees and Payments, without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7885) and sec.sec.300.51-300.63 without changes to the proposed text as published in the October 14, 1994, issue of the Texas Reigster (19 TexReg 8102). These rules are being repealed to allow adoption of new rules. The repeals function to delete vague language and allow for new concise and current rules. No comments were received regarding adoption of the repeals. Fees for Designated Services 37 TAC sec.sec.300.1-300.6 The repeals are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend, or change rules and procedures if necessary. 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 December 5, 1994. TRD-9451946 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 Emergency Overcrowding Relief 37 TAC sec.sec.300.21-300.28 The repeals are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend, or change rules and procedures if necessary. 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 December 5, 1994. TRD-9451947 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 Transfer of Felony Backlog 37 TAC sec.sec.300.51-300.63 The repeals are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend, or change rules and procedures if necessary. 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 December 5, 1994. TRD-9451948 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 14, 1994 For further information, please call: (512) 463-5505 The Texas Commission on Jail Standards adopts new sec. sec.300.1-300. 6, 300.21, 300.22, 300.24-300.28, concerning Fees and Payments, without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register>> (19 TexReg 7886). Section 300.23 is adopted with changes to the proposed text as published. Sections 300.51-300.63 are adopted without changes to the proposed text as published in the October 14, 1994, issue of the Texas Register (19 TexReg 8102). Adoption of these rules revises jail standards to make them concise, current and comprehensible. The rules function to provide new regulations that encompass the current standards of the commission. No comments were received regarding adoption of the new sections. Fees for Designated Services 37 TAC sec.sec.300.1-300.6 The new sections are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend, or change rules and procedures if necessary. 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 December 5, 1994. TRD-9451949 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 Emergency Overcrowding Relief 37 TAC sec.sec.300.21-300.28 The new sections are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend, or change rules and procedures if necessary. sec.300.23. Method of Calculation. Qualifying counties will be paid based on percentages of a base number equal to the number of inmates confined in the jail on April 1, 1991 who were awaiting transfer to the TDCJ-ID as determined under Government Code, Chapter 499, sec.499.123(a) (concerning Payment). The applicable percentages and calculations shall be as follows: (1) From September 1, 1991 until August 31, 1993, the commission will pay a qualifying county the sum of $20 for each day of confinement for each inmate awaiting transfer in excess of 50% but less than or equal to 210% of the base number and the sum of $30 for each day of confinement for each inmate awaiting transfer in excess of 210% of the base number; (2) From September 1, 1993 until September 1, 1995, the commission will pay a qualifying county the sum of $20 for each day of confinement for each inmate awaiting transfer in excess of 25% but less than or equal to 210% of the base number and the sum of $30 for each day of confinement for each inmate awaiting transfer in excess of 210% of the base number; (3) The commission will pay the sum of $20 for each day of confinement for each inmate awaiting transfer to a qualifying county for which the base number is equal to 0; (4) Percentage calculations are mathematically rounded up to whole integers. Payments are based on the number of inmates in excess of the rounded-up percentage requirements; (5) Payments, when appropriate, will be made to qualifying counties for each calendar month. 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 December 5, 1994. TRD-9451950 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 Transfer of Felony Backlog 37 TAC sec.sec.300.51-300.63 The new sections are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend, or change rules and procedures if necessary. 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 December 5, 1994. TRD-9451951 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 Chapter 301. Rules of Practice in Contested Cases 37 TAC sec.301.1, sec.301.2 The Texas Commission on Jail Standards adopts the repeal of sec.301.1 and sec.301.2, concerning Rules of Practice in Contested Cases, without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7887). These rules are being repealed to allow adoption of new rules. The repeals function to delete vague language and allow for new concise and current rules. No comments were received regarding adoption of the repeals. The repeals are adopted under the Government Code, Chapter 511 which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the custody, care, and treatment of prisoners. 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 December 5, 1994. TRD-9451952 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 The Texas Commission on Jail Standards adopts new sec.301.1 and sec.301.2, concerning Rules of Practice in Contested Cases, without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7887). Adoption of these rules revises jail standards to make them concise, current and comprehensible. The rules function to provide new regulations that encompass the current standards of the commission. No comments were received regarding adoption of the new sections. The new sections are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend, or change rules and procedures if necessary. 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 December 5, 1994. TRD-9451953 Jack E. Crump Executive Director Commission on Jail Standards Effective date: December 27, 1994 Proposal publication date: October 4, 1994 For further information, please call: (512) 463-5505 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part III. Texas Commission on Alcohol and Drug Abuse Chapter 148. Facility Licensure Standards Subchapter A. Licensure Information General Provisions 40 TAC sec.sec.148.1-148.4 The Texas Commission on Alcohol and Drug Abuse adopts new sec.sec.148.1-148.4 concerning facility licensure standards. Section 148.3 and sec.148.4 are adopted with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6718). Section 148.1 and sec.148. 2 are adopted without changes and will not be republished. Rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections are adopted to establish minimum standards and criteria for obtaining licensing for operation of alcohol and drug treatment facilities in Texas, and to define who is required to obtain a license. In sec.148.3, language was revised for clarification. In sec.148.4, or designee was added. These sections state the purpose and requirements for licensure, provide exemptions, describe application of the rules, and set forth procedures for variances. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.3. Application of the Rules. (a) The commission's interpretation of these rules shall be binding on all applicants and license holders. This includes specific interpretations and requirements published in the commission's Licensure Compliance Guide. (b) Information, opinions, and advice provided by commission staff shall not be considered binding on the commissioners if the matter requires action by the commissioners. (c) Commission activity does not set precedent. Prior actions or decisions of the commission in other cases shall not bind the commission when it considers subsequent matters. Every situation will be considered on its own merit. (d) The licensure rules include general standards that define the level of performance required. The standards are not written to provide a complete list of actions needed to achieve compliance, but rather to provide notice of the kind of performance expected. Specific actions needed to achieve compliance with each standard include but may not be limited to the numbered standards contained in that section. The commission will provide a Licensure Compliance Guide to assist facilities achieve compliance. sec.148.4. Variances. (a) The commission's executive director or designee may grant a variance to a facility or group of facilities. (b) To be eligible for a variance, a facility must: (1) show that an alternative method is used to meet the intent of the standard; (2) show that the variance will not jeopardize the health, safety, or welfare of clients; and (3) comply with procedures established by the commission. (c) The commission's executive director or designee may determine when an alternative method is equivalent to the written standard and under what circumstances it may be accepted during licensure reviews. 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 December 6, 1994. TRD-9451894 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Licensure Procedures 40 TAC sec.sec.148.21-148.27 The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.21-148. 27 concerning facility licensure standards. Sections 148.21, 148.22, and 148. 24- 148.27 are adopted with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6719). Section 148.23 is adopted without changes and will not be republished. The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections are adopted to establish minimum standards and criteria for obtaining licensing for new facilities, license renewal, or change in status. In sec.148.21, the application fee was lowered. In sec.148.22 and sec.148.24, language was revised for clarification. In sec.148.25, establishes expiration dates for renewal applications along with a monetary penalty. In sec.148.26, licensure fees were revised and the time frame was clarified as to when the fees are due. The standard also establishes what forms of payment will be accepted. In sec.148.27, an inactive status limit was established, and language was revised for clarification. These sections state the purpose and requirements for the licensing processes for applications, renewals, and change in status. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.21. Licensure Application. An applicant for initial licensure, license renewal, or change in status must submit a complete licensure application with a $50 application fee and comply with procedures and time frames established by the commission. sec.148.22. Licensure Review. (a) The commission may conduct an on-site inspection or request additional materials for review. (b) The applicant must allow commission staff to access the facility's grounds, buildings, and records and to interview staff and clients. (c) The facility must be prepared to provide evidence of its compliance with each applicable standard. (d) The applicant must correct identified deficiencies and pay the licensure fee on time. (e) The applicant shall not provide any chemical dependency treatment services before receiving written notice of licensure approval. (f) The facility must display the document of licensure prominently wherever it provides services. sec.148.24. Change in Ownership. (a) The facility must notify the commission before a change in ownership. (b) The new owner must apply for a new license and is subject to the same procedures and fees as any other applicant. sec.148.25. Licensure Renewal. (a) A license issued by the commission expires at the end of two years and may be renewed. (b) The facility shall not provide services after the license expiration date unless it has received written notification that the renewal license has been approved. (c) If the commission receives the renewal application one to 90 days after the expiration date, the license holder must pay a $500 penalty in addition to the renewal fee. (d) After 90 days, the license cannot be renewed. The license holder must submit a new application for licensure. sec.148.26. Licensure Fees. (a) A single licensure fee is charged and collected for each licensure period. (b) Licensure fees are not refundable. (c) A facility must pay the full licensure fee for any licensure period during which it provides chemical dependency treatment. (d) The facility is responsible for notifying the commission in writing within 30 days when it closes a chemical dependency treatment program. (e) The schedule for licensure fees is: (1) $50 application fee; (2) $1,000 base fee; (3) $30 per bed; (4) $2,000 maximum fee per facility. (f) The certificate replacement fee is $10. (g) Fees must be paid in full by certified check or money order. sec.148.27. Discontinuing Treatment. (a) Any facility suspending services for more than 30 days must notify the commission. Inactive status is limited to six months. (b) A facility must follow commission procedures when a program closes. (c) A license is a grant of authority to provide treatment. It becomes invalid when a program closes or changes ownership and the document of approval must be returned to the commission at that time. (d) Surrender of a license does not interrupt the investigation or sanctions process. Unless the facility is cleared through the investigation or hearings process, the commission will impose the proposed sanctions and withdraw the facility's license in negative status. 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 December 6, 1994. TRD-9451895 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Licensure Sanctions 40 TAC sec.sec.148.41-148.46 The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.41-148. 46 concerning facility licensure standards. Sections 148.41, 148.42, 148.44, and 148.45 are adopted with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6720). Section 148.43 and sec.148.46 are adopted without changes and will not be republished. The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections are adopted to establish minimum standards and criteria for procedures for sanctions that may be implemented against persons who violate licensure laws or rules. In sec.148.41, member of the governing body was added and director was deleted. In sec.148.42 and sec.148.44, or designee was added for clarification. In sec.148.45, or designee was added and language was revised for clarification. The sections will establish procedures for the suspension, revocation, or refusal to renew a license for treatment facilities in Texas. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.41. Grounds for Sanctions. (a) The commission's executive director may deny, suspend, revoke, or refuse to renew a license if an applicant, license holder, owner, member of the governing body, administrator, or clinical staff member of the facility: (1) has a documented history of client abuse or neglect as determined by the commission; (2) fails to comply with any provision of the Act or other applicable statute or with a commission rule. (b) The commission may impose an administrative penalty against a person licensed or regulated under the Act who violates the Act or other applicable statute or a rule or order adopted under such a statute. sec.148.42. Informal Hearing. (a) If the commission's executive director or designee intends to deny, suspend, revoke, or refuse to renew a license, the executive director or designee will notify the applicant in writing. (b) The applicant may request a hearing before the executive director or designee. A written request must be received within 15 days after the notice was mailed. (c) The executive director or designee will take action to avoid unnecessary delays. (d) The executive director or designee will ensure a full, fair, and impartial hearing. (e) At the hearing, the applicant may present evidence and testimony to show why action should not be taken. (f) If the executive director or designee decides to take action, the executive director or designee will notify the applicant of the grounds for the decision in writing. (g) The applicant may request a hearing to appeal the decision to the commissioners. A written request must be received within 15 days after the notice of the decision was mailed. (h) The decision takes effect on the 30th day after the date on which the notice is mailed unless: (1) the applicant requests a hearing before the deadline; or (2) the commission secures an injunction as described in sec.148.46 of this title (relating to Injunctions). sec.148.44. Administrative Penalties. The commission may impose an administrative penalty against a person who violates the Act or a rule or order adopted under the Act. (1) Each day a violation continues or occurs is a separate violation. (2) The amount of the penalty may not exceed $25,000 and will be based on: (A) the seriousness of the violation; (B) related enforcement costs; (C) the history of previous violations; (D) the amount necessary to deter future violations; (E) efforts to correct the violation; and (F) any other relevant information. (3) If the executive director or designee determines that a violation has occurred, the executive director or designee may report the findings and recommendations to the commissioners, including a recommended penalty. (4) Within 14 days after the report is issued, the executive director or designee will notify the person who committed the violation by certified mail of the alleged violation and recommended penalty. The notice will inform the person of the right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (5) Within 20 days after the date the person receives the notice, the person may accept the determination and recommended penalty in writing or make a written request for a hearing. (6) If the person accepts the determination and recommended penalty, the commissioners will approve the determination and impose the recommended penalty. (7) The collection process will be conducted according to the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464. (8) If the person requests a hearing or does not respond by the deadline, the commission will set a hearing and notify the person. (9) All proceedings under this section will be conducted according to the Administrative Procedure Act. sec.148.45. Informal Disposition. (a) The executive director or designee may offer the person an opportunity to sign an agreed settlement, consent order or stipulation. (b) A proceeding is suspended on the date both parties sign the agreement. (c) If the applicant fails to comply with any requirement of the agreement, the executive director or designee may nullify the agreement and resume the proceeding. 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 December 6, 1994. TRD-9451896 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Definitions 40 TAC sec.148.61 The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.61, concerning facility licensure standards, with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6721). Rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These definitions are adopted to define terms commonly used to establish minimum standards and criteria for the licensure, operation, sanctions, and other functions of alcohol and drug treatment facilities in Texas. In sec.148.61, several definitions were added and language was revised for clarification. This section establishes meanings for terms that are commonly used in the standards for facility licensure. Comments were received from an individual objecting to the use of the term fear in the definition of client abuse, stating that clients should be fearful of relapse and its consequences. Although clients should understand the serious negative consequences of relapse, the term "fear" is more commonly associated with acts of verbal or physical intimidation, which are prohibited. Another individual noted that certain definitions do not include the same language as the relevant senate bills. These rules apply only to the chemical dependency treatment facilities and the use of more specific terminology is appropriate and consistent with applicable legislation. Comments made against these sections were submitted by individuals from within the drug and alcohol treatment community. The new section is adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.61. Definitions. The following terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Abuse-Any act or failure to act which is done knowingly, recklessly or intentionally, including incitement to act, which caused or may have caused injury to a client. Injury may include, but is not limited to: physical injury, mental disorientation, or emotional harm, whether it is caused by physical action or verbal statement. Client abuse includes: (A) any sexual activity between facility personnel and a client; (B) corporal punishment; (C) nutritional or sleep deprivation; (D) efforts to cause fear; (E) the use of any form of communication to threaten, curse, shame, or degrade a client; (F) restraint that does not conform with these standards; (G) coercive or restrictive actions taken in response to the patient's request for discharge or refusal of medication or treatment that are illegal or not justified by the patient's condition; and (H) any other act or omission classified as abuse by the Texas Family Code sec.34.012. Act-Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464. Acute alcohol/drug withdrawal-Withdrawal symptoms which threaten the physical safety of the client. Acute withdrawal symptoms may include, but are not limited to: seizures, hypertensive crisis, deliriums tremens, and severe dehydration with metabolic or electrolyte imbalances. Adequate-Reasonably sufficient; enough to meet the need. Admission-Formal acceptance of a prospective client to a treatment facility. Adolescent-An individual 13-17 years of age whose disabilities of minority have not been removed by marriage or judicial decree. Adult-An individual 18 years of age or older, or an individual under the age of 17 whose disabilities of minority have been removed by marriage or judicial decree. Advanced nurse practitioner-A registered nurse currently licensed in Texas who is prepared for advanced practice and approved by the Texas State Board of Nurse Examiners. Advertise-To solicit or induce, through print or electronic media, including radio, television, or direct mail, to purchase the services provided by a treatment facility. Aftercare services -Services provided by a facility to a client who has been discharged and is no longer receiving services from any of that facility's treatment programs. Applicant-A person who has submitted a complete application to the commission for licensure, relicensure, or change in status; and paid the application fee. Approval-Written authorization. Chemical dependency -The abuse of, psychological or physical dependence on, or addiction to alcohol, a toxic inhalant, or any substance designated as a controlled substance in the Texas Controlled Substances Act. Chemical dependency counselor-A qualified credentialed counselor, as defined in these rules, or an individual designated by the commission as a chemical dependency intern. Chemical dependency education-A planned, structured presentation of information related to chemical dependency, including but not limited to: physiological and psychological effects, emotional and social deterioration, rehabilitation and relapse, and risk of Human Immunodeficiency Virus. Chemical dependency treatment-A planned, structured, and organized program designed to initiate and promote a person's chemical-free status or to maintain the person free of illegal drugs. It includes, but is not limited to, the application of planned procedures to identify and change patterns of behavior related to or resulting from chemical dependency that are maladaptive, destructive, or injurious to health, or to restore appropriate levels of physical, psychological, or social functioning lost due to chemical dependency. Child-An individual under the age of 13. Client-An individual who has been admitted to a chemical dependency treatment facility licensed by the commission and is currently receiving services. Commission-The Texas Commission on Alcohol and Drug Abuse. Commissioners-Members of the commission's governing body. Confidentiality laws -Federal law (42 United States Code sec.290 dd-2) and state law (Texas Health and Safety Code, Title 7, Subtitle E, Chapter 611) and regulations adopted pursuant to these statutes. Consenter-The individual legally responsible for giving informed consent for a client. This may be the client, parent, guardian, or conservator. Unless otherwise provided by law, a legally competent adult is his or her own consenter. Consenters include adult clients, clients 16 or 17 years of age, and clients 13-16 years of age admitting themselves for chemical dependency treatment under the provisions of the Family Code, sec.35.03. Consultant-An individual who is not an employee who provides services to the facility for compensation. Contract provider -A legal entity with whom the facility has a written agreement for services. Counselor-A chemical dependency counselor. Detoxification services -Chemical dependency treatment designed to systematically reduce the amount of alcohol and other toxic chemicals in a client's body, manage withdrawal symptoms, and encourage the client to seek on- going treatment for chemical dependency. Detoxification standing order-An order written by a physician which governs the delivery of detoxification services to specific clients by licensed staff. Direct care staff-Staff responsible for providing treatment, care, supervision, or other client services that involve a significant amount of face- to-face contact. Direct supervision (of counselor interns)-Supervision that meets the criteria listed in the commission's Chemical Dependency Counselor Licensure Rules. Discharge-The time when a client leaves a facility and will no longer be receiving chemical dependency treatment. Documentation-A written record that includes required content, date, and signature. Employee-An individual hired directly by the facility to provide services in exchange for money or other compensation. Ensure-Take all reasonable and necessary steps to achieve results. Experience-Direct participation in a similar job activity supervised by a qualified individual. Exploitation-An act or process to use, either directly or indirectly, the labor or resources of a client for monetary or personal benefit, profit or gain of another individual or organization. FTE-Full Time Equivalent staff position requiring 40 hours per week. Facility-A legal entity with a single governing body, a single administration, and a single staff that provides chemical dependency treatment. Facility director -The individual authorized by the governing body to act on its behalf in the overall administration of the facility. Family Counseling -Counseling services provided to family members and significant others as part of a client's treatment program. Family counseling is limited to issues directly related to the client's chemical dependency, and may not address other problems and issues a family member may be experiencing. Governing body -The individual or individuals legally established to operate a facility. The governing authority has ultimate authority and responsibility for the facility's services and operations. Group counseling -A face-to-face interaction between two or more clients and a counselor to help clients identify, understand, and resolve issues and problems related to chemical dependency. HIV-Human Immunodeficiency Virus infection. ITC-An in-prison therapeutic community that is part of the state's criminal justice initiative. Immediate supervision -Being physically present while a task is being performed. Individual counseling -A face-to-face interaction between a client and a counselor to help a client identify, understand, and resolve issues and problems related to chemical dependency. Individual service day-A day on which a specific client receives services. Inform-To communicate through mail, by telephone or telecopier, by courier, or in person. Intake-The administrative process for gathering information about a prospective client and giving a prospective client information about the treatment facility and the facility's treatment and services. Intervention and assessment service-A service that offers assessment, counseling, evaluation, intervention, or referral services or makes treatment recommendations to an individual with respect to chemical dependency. License-A grant of authority to a facility to provide chemical dependency treatment in the State of Texas, which is issued by the commission under the Act. Licensed chemical dependency counselor (LCDC)-A counselor licensed by the Texas Commission on Alcohol and Drug Abuse. Licensed dietitian -An individual who is currently licensed or provisionally licensed by the Texas State Board of Examiners of Dietitians. Licensed marriage and family therapist (LMFT) -An individual who is currently licensed as a marriage and family therapist by the Texas State Board of Examiners of Marriage and Family Therapists. Licensed master social worker (LMSW)-An individual who is licensed as a master social worker by the Texas Department of Human Services. Licensed medical professional-A physician, physician assistant, registered nurse, or licensed vocational nurse as defined in these rules. Licensed professional counselor (LPC)-An individual licensed as a professional counselor by the Texas State Board of Examiners of Professional Counselors. Licensed vocational nurse (LVN)-A nurse licensed by the Texas State Board of Vocational Nurse Examiners. Mechanical restraint -Use of a physical device to control or restrict a person's physical movement or actions. Medical emergency -Physical symptoms requiring immediate medical attention to prevent death or imminent harm. Medication-Any drug used to treat a condition or relieve symptoms, including prescription drugs and over-the-counter drugs. Medication Error -Medication not given according to the written order. Includes duplicate doses, missed doses, and doses of the wrong amount or drug. Mental Health Referral Service-A service that does not provide treatment directly but instead refers clients in need of mental health services to qualified providers. Mental health services-All services concerned with research, prevention, and detection of mental disorders and disabilities, and all services necessary to treat, care for, control, supervise, and rehabilitate persons who have a mental disorder or disability, including persons whose mental disorders or disabilities result from chemical dependency. Neglect-Actions resulting from inattention, disregard, carelessness, ignoring or omission of reasonable consideration that caused or might have caused physical or emotional injury to a client. Examples of neglect include, but are not limited to: (A) failure to provide adequate nutrition, clothing, or health care; (B) failure to provide a safe environment free from abuse; (C) failure to maintain adequate numbers of appropriately trained staff; (D) failure to establish or carry out an appropriate individualized treatment plan; and (E) any other act or omission classified as neglect by the Texas Family Code sec.34.012. Notify-Inform in writing. Offer-To make available. On call-Immediately available for telephone consultation. On duty-Scheduled and present at the site to perform job duties. Orders (written, verbal, or telephone)-Direct communication between a physician and licensed program staff in which the physician directs specific treatments. Person-An individual, firm, partnership, corporation, association, or other business or professional entity. Personal restraint -Physical contact to control or restrict a person's physical movement or actions. Personnel-Members of the governing body, employees, contract providers, consultants, agents, representatives, volunteers, and other individuals working on behalf of the facility through a formal or informal agreement. Physician-An individual licensed by the Texas State Board of Medical Examiners to practice medicine, or an individual employed by any agency of the United States who has a license to practice medicine in any other state of the United States. Physician assistant -An individual registered as a physician assistant by the Texas State Board of Medical Examiners. Policy-A statement of direction or guiding principle issued by the governing authority. Procedure-A set of step-by-step instructions. Program-A specific level of chemical dependency treatment delivered to a defined client population. Program director -The individual who manages a chemical dependency treatment program. Provide-To perform or deliver. Psychiatric emergency -Symptoms requiring immediate psychiatric attention. Psychologist-An individual licensed as a psychologist by the Texas State Board of Examiners of Psychologists. Qualified credentialed counselor-An individual who is licensed by the state as a chemical dependency counselor (LCDC), professional counselor (LPC), master social worker (LMSW), marriage and family therapist (LMFT), psychologist, or physician. LPCs, LMSWs, LMFTs, psychologists, and physicians must demonstrate two years of chemical dependency counseling experience. Qualified mental health referral service-A service that does not provide treatment directly but instead refers clients in need of chemical dependency treatment to qualified providers. A mental health referral service must meet the statutory requirements of the Texas Health and Safety Code, Title 2, Subtitle H, Chapter 164. Refer-Identify appropriate services and provide information needed to access them. Registered nurse (RN)-A professional nurse licensed by the Texas State Board of Nurse Examiners. Rehabilitation services -Services designed to maximize or restore a person's functional ability. Residential site -A site owned, leased, or operated by the facility where clients sleep overnight. Retaliate-Adverse actions taken to punish or discourage a person who reports a violation or cooperates with an investigation, inspection, or proceeding. Such actions include, but are not limited to, suspension or termination of employment, demotion, discharge, transfer, discipline, restriction of privileges, harassment, and discrimination. SAFPF-A substance abuse felony punishment facility that is part of the state's criminal justice initiative. Screening-Determining whether a client meets the program's admission criteria, based on the person's reason for admission, medical and chemical use history, and other needed information. Seclusion-The placement of a client alone in a room from which exit is prevented. Service day-A day during which the program provides scheduled services to any client. Sexual exploitation -A pattern, practice, or scheme of conduct that can reasonably be construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person. It may include sexual contact, a request for sexual contact, or a representation that sexual contact or exploitation is consistent with or part of treatment. Site-A single identifiable location owned, leased, or controlled by a facility where any element of chemical dependency treatment is offered or provided. Small family living environment-A single apartment unit, house, or similar residence designed for an average size family, with no more than four bedrooms. Solicit-To contact a person for the purpose of inducing them, directly or indirectly, to enter treatment or make a referral. Special treatment procedures-Personal restraint, mechanical restraint and seclusion. Staff-Individuals who provide services for the facility in exchange for money or other compensation, including employees, contract providers, and consultants. Stock prescription drugs-Prescription drugs which are packaged in the original manufacturer's container. Supportive services -Services designed to provide individuals with a stable living environment, such as meals, shelter, and access to peer support groups. TTC-A transitional treatment center that is part of the state's criminal justice initiative. Treatment level -The intensity of treatment provided by a program. Treatment protocol -Instructions for the delivery of treatment services to groups of clients by non-licensed and licensed staff. Treatment services -Counseling and chemical dependency education. Treatment setting -The physical environment in which chemical dependency treatment takes place. Treatment settings may be residential or outpatient. Unethical conduct -Conduct prohibited by the ethical standards adopted by state or national professional organizations or by rules established by a profession's state licensing agency. Unit dose packaging -The ordered amount of a drug in a dosage form that is properly labeled and ready for administration to a particular patient by the prescribed route at the prescribed time. Unprofessional conduct -An act or omission that violates commonly accepted standards for behavior for individuals or organizations. Volunteer-An individual who provides services for the facility without compensation. Students are volunteers. 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 December 6, 1994. TRD-9451897 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Subchapter B. Facility Management Administration 40 TAC sec.sec.148.71-148.74. The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.71-148. 74 concerning facility licensure standards. Sections 148.71-148.73 are adopted with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6724). Section 148.74 is adopted without changes and will not be republished. Rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections define the specific requirements for the facility's governing authority and director, set standards for facility policy and procedure and for staff conduct, and describe situations that must be reported to the Commission. In sec.sec.148.71-148.73, language was revised for clarification. These sections provide the facility and the facility's director and staff with rules on the governing of clients, facility, and staff members, and what situations need to be reported to TCADA. Three comments were received on these sections. One individual objected to the use of competence in financial management in sec.148.71(g), and offered knowledge of fiscal management and knowledge of chemical dependency. Another individual supported sec.148.72(f), with one minor change of making the rule more specific. The last comment was on the deletion of sec.148.73(d), asking whether TCADA should be contacted on background checks and employee information. The commission accepts the suggestion to substitute financial management for fiscal management to the requirements for facility director, and to add knowledge of chemical dependency to sec.148.71(g) to allow flexibility, but disagrees with the comment on sec.148.73(d) because state statute does not permit a state agency to serve the function of a former employer, who has first- hand knowledge of the applicant. On sec.148.72(f), specific guidelines will be included in the compliance guide. The comments made for and against these sections were submitted by individuals from within the drug and alcohol treatment community. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.71. Governing Body and Facility Director. The facility's governing body must exercise its legal authority over and accept responsibility for the management, services, and operations of the program to protect the health, safety, and welfare of clients. (1) The facility must have a legally established governing body with documented authority to operate in the State of Texas. (2) The governing body must ensure that the facility complies with all applicable laws, regulations, and commission rules. (3) The governing body must ensure that the facility will be operated in a professional and ethical manner. (4) The governing body must review the facility's operations and services and take appropriate action as needed. (5) The governing body must know the facility's licensure status and ensure that problems are effectively resolved. A member of the governing authority must participate in the summarization of the licensure review process. (6) The governing body must designate a facility director to manage the facility's operations. (7) The facility director must demonstrate competence in financial management, personnel management, and other areas necessary to manage the facility effectively. (8) The facility director must ensure that the staff complies with commission rules. sec.148.72. Policies, Procedures, and Licensure Standards. The facility must operate according to a written program description and policies and procedures that comply with licensure standards. (1) The governing body must approve a program description that includes: (A) program purpose or mission statement; (B) services and how they are provided; and (C) description of the target population. (2) The governing body must establish policies that comply with licensure standards. (3) The facility director must use the policies to develop and implement individualized procedures to establish and document service delivery and compliance with licensure standards. (4) Policies and procedures must be well organized. (5) Current copies of the policy and procedure manual and the commission's licensure standards must be easily accessible to all staff at all times. (6) The facility must inform staff of any changes to the policy and procedure manual relevant to their job duties, provide training as needed, and update all copies of the manual promptly. sec.148.73. Standards of Conduct. The facility and all of its personnel must conduct the facility's business legally and according to accepted standards of professional and ethical conduct. (1) The facility and all of its personnel must: (A) protect the health, safety, rights, and welfare of clients; (B) provide adequate services as described in the program description; (C) comply with all applicable laws, regulation, policies, and procedures; (D) maintain required licenses, permits, and credentials; and (E) comply with professional and ethical codes of conduct. (2) The facility and all of its personnel shall not: (A) commit an illegal, unprofessional, or unethical act; (B) assist or knowingly allow another person to commit an illegal, unprofessional, or unethical act; (C) knowingly provide false or misleading information; (D) omit significant information from required reports and records or interfere with their preservation; (E) retaliate against anyone who reports a violation or cooperates during a review, inspection, investigation, hearing, or other related activity; or (F) interfere with commission reviews, inspections, investigations, hearings, or related activities. This includes taking action to discourage or prevent someone else from cooperating during the activity. (3) The facility and its personnel must report violations of laws, rules, and professional and ethical codes of conduct to the commission. (A) The facility director or designee must make a verbal report within 24 business hours of the time the facility becomes aware of the violation. (B) The facility must send a written report if required by the commission. (4) The facility must have written policies on staff conduct and reporting procedures that comply with this 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 December 6, 1994. TRD-9451898 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Referral 40 TAC sec.sec.148.91-148.93 The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.91-148. 93 concerning facility licensure standards. Section 148.92 is adopted with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6725). Sections 148.91 and 148.93 are adopted without changes and will not be republished. Rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections prohibit certain marketing and referral practices, regulate client billing, and set standards for qualified referral services. In sec.148.92, language was revised for clarification. These sections establish limits for treatment facilities in the areas of marketing, referral of clients and standards for referral services, and client billing. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.92. Advertising and Billing. (a) A facility shall not advertise or purport to offer any level of chemical dependency treatment unless it holds the required license. (b) A facility shall not engage in false, misleading, or deceptive advertising. This includes making unsubstantiated claims, promises of cure, or guarantees of treatment results. (c) The facility shall not advertise intervention and assessment services unless the services are available and provided by qualified chemical dependency counselors. (d) The facility shall not represent that a referral service is qualified unless it complies with all the standards found in the Texas Health and Safety Code, Title 2, Subtitle H, Chapter 164. (e) The facility shall not charge for undelivered services unless: (1) the facility offers a scheduled service described in the client's treatment plan; (2) the client doesn't show up or refuses to participate; and (3) the facility has documentation that the client was informed of this billing policy in writing at the time of admission. 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 December 6, 1994. TRD-9451899 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Personnel and Staff Development 40 TAC sec.sec.148. 111-148.117. The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.111-148. 117 concerning facility licensure standards. Sections 148.111-148.115, and 148. 117 are adopted with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6726). Section 148.116 is adopted without changes and will not be republished. The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections are adopted to establish minimum standards and criteria for obtaining licensing for operation of alcohol and drug treatment facilities in Texas, and define the requirements for hiring practices, staffing levels, staff training, staff qualifications, and related documentation. In sec.148.111, 148.113, and 148.117, language was revised for clarification. In sec.148.112, including the Texas Civil Practice and Remedies Code, Title 4, Chapter 8, sec.81.003 was added, along with changes in language for clarification. In sec.148.114(a), within 90 days of employment was deleted. In sec.148.114, counselor interns must have at least 30 hours of continuing education each year was added, and language was revised for clarification. In sec.148.115, volunteers who do not have certification in CPR and first aid must have immediate supervision from certified staff was also added. These sections state the accepted hiring, staffing, and related documentation procedures described within the standards. In reference to sec.148.112, several people suggested that employers contact TCADA instead of previous employers regarding an individual's history of sexual exploitation. The state does not permit a state agency to serve the function of a former employer, who has first-handed knowledge of the applicant. Furthermore, TCADA will not have a record of incidents that may occur in settings outside its jurisdiction. In sec.148.114, several individuals questioned the requirement for specific training for very small programs whose staff would not have any way to provide inservice to themselves. The word inservice has been deleted to clarify that training can be obtained outside the facility. Section 148.114(i) raised questions on the requirement of eight hours for intake and abuse training. Some suggested reducing the mandated number of hours from eight to four hours. The time mandated by law is eight hours. Comments were addressed to sec.148.114(k) as to reinstating registered nurses as professionals, approved to provide detoxification training for staff, and also changing the term, advanced nurse practitioner to registered nurse. The commission accepts the suggestions to allow registered nurses to provide detoxification training, as permitted under current rules, and also using the term, registered nurse. The title of sec.148.115 was changed after a suggestion was sent to the agency. The commission accepts the section label as Volunteers and Students. In sec.148.117, two people suggested extending the time required between discharge and employment from six months to one year. Although one year may be preferable, the commission feels six months is the minimum. The comments made against these sections were submitted by individuals from within the drug and alcohol treatment community. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.111. Organizational Structure. The facility must clearly define the organizational structure and staff responsibilities. (1) The facility must have a current organizational chart. (2) The facility must document the current number of FTE's for each position. (3) The facility must have a written job description for each staff and volunteer position which describes in specific terms: (A) duties and responsibilities; and (B) minimum qualifications, including the level of education, training, or related work experience required. (4) The facility must have written agreements with persons who provide chemical dependency services to the facility on a regular basis. This includes all persons who provide services that are required by the licensure standards. sec.148.112. Hiring Practices. The facility must hire applicants who meet the minimum qualifications listed in the job description. (1) The application or resume must document required education, training, and related work experience. (2) Facility staff must verify the current status of all required credentials with the credentialing authority by phone or letter. (3) The facility must comply with all applicable laws, including the Texas Civil Practice and Remedies Code, Title 4, Chapter 8, sec.81.003. (4) The facility must develop and implement screening procedures for all personnel with access to clients. Screening must be appropriate for each person's level of access and must adequately protect the safety and welfare of clients. sec.148.113. Initial Training. The facility must train new staff in critical policies and procedures. (1) All employees must complete initial training before working without immediate supervision. (2) The initial training must include discussion of licensure standards relating to the following issues: (A) client rights; (B) client grievance procedures; (C) confidentiality of client-identifying information; (D) client abuse, neglect, and exploitation; (E) requirements for reporting abuse, neglect, and other serious incidents; (F) standards of conduct; (G) emergency and evacuation procedures; and (H) the individual's specific job duties. (3) All other staff must receive orientation on these topics appropriate to their qualifications and responsibilities. sec.148.114. Special Training Requirements. The facility must ensure that staff are adequately trained and competent to perform job duties. (1) Staff must have all required training before performing job duties independently. (2) The facility must annually provide at least eight hours of training that is approved by the commission and that complies with the interagency agreement on training to assist staff in identifying: (A) abuse, neglect, and exploitation; and (B) illegal, unprofessional, or unethical conduct. (3) All staff and volunteers must complete HIV training. (A) The training must be based on the AIDS/HIV Model Workplace Guidelines for direct service providers established by the Texas Department of Health. (B) The instructor must have at least eight hours of training from a person who is a certified HIV instructor. (4) All direct care staff must have current certification in first aid and CPR. (A) Personnel in licensed medical facilities are exempt if the institution has emergency resuscitation equipment and trained response teams available 24 hours a day. (B) Licensed medical personnel are exempt from first aid and from CPR if it is required to maintain licensure. (5) All direct care staff must have training and competency in nonviolent crisis intervention. (A) The instructor must have successfully completed a course for crisis intervention instructors or have equivalent training and experience. (B) The training must teach staff how to use verbal and other non-physical methods for prevention, early intervention, and crisis management. (6) All direct care employees working in programs that use special treatment procedures must have training and competency in the safe methods of the specific procedures used. (7) The program must implement procedures to ensure that all staff providing chemical dependency education consistently deliver the required information. (8) All staff providing chemical dependency counseling must demonstrate competency in the facility's treatment modalities before working without immediate supervision. (9) All staff who conduct intakes or screenings must complete eight hours of training in the program's intake and screening procedures annually. Staff may not conduct screening or intake unless training is complete and current. (10) All employees must complete training on tuberculosis that includes information on: (A) high-risk populations; (B) symptoms; (C) containment; (D) standard testing and treatment procedures; and (E) available resources; and (F) appropriate referral. (11) All direct care staff working in detoxification programs must complete detoxification training. (A) Training must be provided by a physician, physician assistant, advanced nurse practitioner, or registered nurse with at least one year of documented experience in detoxification. (B) Training must include: (a) signs of withdrawal; (b) observation and monitoring procedures; (c) appropriate intervention; and (d) complications requiring transfer. (12) All staff responsible for supervising clients in self-administration of medication who are not credentialed to administer medication must complete documented training from a physician, pharmacist, physician assistant, or registered nurse before performing this task. The training must include: (A) prescription labels; (B) medical abbreviations; (C) routes of administration; (D) use of drug reference materials; (E) storage, maintenance, handling, and destruction of medication; (F) documentation requirements; and (G) procedures for medication errors, adverse reactions, and side effects. (13) Counselor interns must have at least 30 hours of continuing education each year. sec.148.115. Volunteers and Students. The facility must ensure that volunteers comply with standards of performance and conduct. (1) Each volunteer must have a job description or written agreement. (2) Volunteers must be appropriate and qualified to perform assigned duties. (3) Volunteers must receive orientation and training appropriate to the qualifications and responsibilities. (4) Volunteers must be appropriately supervised by staff. Direct care volunteers who do not have certification in CPR and first aid must have immediate supervision from certified staff. sec.148.117. Basic Staffing Requirements. The facility must provide enough qualified staff to comply with licensure standards, provide the services described in the program description, and protect the health, safety, and welfare of clients. (1) Individuals responsible for planning, implementing, or supervising the facility's treatment services must be qualified credentialed counselors. (2) Chemical dependency education must be taught by chemical dependency counselors or persons who have the education and experience needed to teach the information being presented, including knowledge of chemical dependency and its relationship to the topic. (3) Chemical dependency counseling must be provided by chemical dependency counselors. (4) All chemical dependency counselor interns must work under the direct supervision of a qualified credential counselor. (A) The supervisor-to-intern ratio must not exceed 1:5. (B) The supervisor's direct treatment responsibilities must be adjusted to allow sufficient time for supervision. (5) Counselors providing group or individual counseling focused on trauma, abuse, or sexual issues must have specialized education and training as defined in writing by the program. (6) One or more direct care staff trained in first aid, CPR, and non-violent crisis intervention must be on duty at all times that the program is in operation. (7) Staff included in staff-to-client ratios must not have job duties that interfere with effective client supervision. (8) The facility shall not allow its clients to serve as direct care staff at the facility until at least six months after their discharge. (9) The facility must not allow personnel to perform their duties if: (A) their behavior endangers the health, safety, or well-being of clients; or (B) their use of mood-altering substances interferes with their job performance. 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 December 6, 1994. TRD-9451900 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Safety 40 TAC sec.sec.148.131-148.132 The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.131-148. 132, concerning facility licensure standards, without changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6728) and will not be republished. The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections are adopted to establish minimum standards and criteria for obtaining licensing for operation of alcohol and drug treatment facilities in Texas, and address general environmental requirements and fire safety regulations. These sections state the purpose and requirements for providing fire and general safety regulations for facilities licensed by the commission. Three comments were received on this section. Two comments supported stricter smoking provisions, while one opposed stricter policies. The commission feels the new rules are important to protect the health, safety, and welfare of clients. The comments made for and against these sections were submitted by individuals from within the drug and alcohol treatment community. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment 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 December 6, 1994. TRD-9451901 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Subchapter C. Client Management Client Rights 40 TAC sec.sec.148.141-148.146. The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.141-148. 146 concerning facility licensure standards. Section 148.142 is adopted with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6729). Sections 148.141 and 148.143-148.146 are adopted without changes and will not be republished. The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections are adopted to establish minimum standards and criteria for obtaining licensing for operation of alcohol and drug treatment facilities in Texas. The sections define the rights of voluntary and involuntary clients, set requirements for client rights notification and client grievance procedures, and describe restrictions on filing an application for court commitment during voluntary treatment. In sec.148.142, language was revised for clarification. These sections set the guidelines for facilities in the area of client rights, and establish procedures in dealing with clients, either on a voluntary or involuntary commitment to the facility. Section 148.141 received comments opposing the use of only English language on the Bill of Rights and the commission's posters, recommending that Spanish also be included on the posters. The second language should be appropriate to the population served. Although Spanish will be the most common, some providers may serve large numbers of Asians or other minorities. The commission will provide standard Spanish translations for distribution. In sec.148.143, one comment suggested waiving the consent to treatment for involuntary clients. Current language is consistent with the statutes governing emergency detentions and protective orders. One commenter, responding to sec.148.145, requested that the time frame for response to grievances be extended to 72 hours. Although this is allowed over weekends, the commission feels the facility should respond within 24 hours during the work week. The facility has additional time to resolve the issues. The comments made against the sections were submitted by individuals from within the drug and alcohol treatment community. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.142. Client Bill of Rights. The facility must respect and protect clients rights. The Bill of Rights must include the following. (1) You have the right to a humane environment that provides reasonable protection from harm and appropriate privacy for your personal needs. (2) You have the right to be free from abuse, neglect, and exploitation. (3) You have the right to be treated with dignity and respect. (4) You have the right to appropriate treatment in the least restrictive setting available that meets your needs. (5) You have the right to be told about the program's rules and regulations before you are admitted. (6) You have the right to be told before admission: (A) the condition to be treated; (B) the proposed treatment; (C) the risks, benefits, and side effects of all proposed treatment and medication; and (D) the probable health and mental health consequences of refusing treatment; and (E) other treatments that are available and which ones, if any, might be appropriate for you. (7) You have the right to accept or refuse treatment after receiving this explanation. (8) If you agree to treatment or medication, you have the right to change your mind at any time (unless specifically restricted by law). (9) You have the right to a treatment plan designed to meet your needs, and you have the right to take part in developing that plan. (10) You have the right to meet with staff to review and update the plan on a regular basis. (11) You have the right to refuse to take part in research without affecting your regular care. (12) You have the right to not receive unnecessary or excessive medication. (13) You have the right not to be restrained or placed in a locked room by yourself unless you are a danger to yourself or others. (14) You have the right to have information about you kept private and to be told about the times when the information can be released without your permission. (15) You have the right to communicate with people outside the facility. This includes the right to have visitors, to make telephone calls, and to send and receive sealed mail. This right may be restricted on an individual basis by your doctor or the person in charge of the program if it is necessary for your treatment or for security, but even then you may contact an attorney or the commission at any reasonable time. (16) You have the right to be told in advance of all estimated charges and any limitations on the length of services that the facility is aware of. (17) You have the right to receive an explanation of your treatment or your rights if you have questions while you are in treatment. (18) If you consented to treatment, you have the right to leave the facility within four hours of requesting release unless a physician determines that you pose a threat of harm to yourself and others. (19) You have the right to make a complaint and receive a fair response from the facility within a reasonable amount of time. (20) You have the right to complain directly to the Texas Commission on Alcohol and Drug Abuse at any reasonable time. (21) You have the right to get a copy of these rights before you are admitted, including the commission's address and phone number. (22) You have the right to have your rights explained to you in simple terms, in a way you can understand, within 24 hours of being admitted. 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 December 6, 1994. TRD-9451902 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Abuse, Neglect, and Exploitation 40 TAC sec.sec.148. 161-148.163, 161.165 The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.161-148. 163 and sec.148.165 concerning facility licensure standards. Sections 148.161 and 148.165 are adopted with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6731). Sections 148.162 and 148.163 are adopted without changes and will not be republished. The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections are adopted to establish minimum standards and criteria for obtaining licensing for operation of alcohol and drug treatment facilities in Texas. The sections provide rules to protect clients from abuse, neglect, and exploitation, and to ensure that any alleged incidents are properly reported and investigated. In sec.148.161, language was changed for clarification, paragraph (2) was deleted, and in new paragraph (4), This is in addition to the reports specified in the Texas Human Resources Code, sec.48.36 and the Texas Family Code, sec.34.01 was added. In 148.165, language was revised for clarification. These sections state the standards to ensure that clients will be protected from any kind of abuse, physical or verbal, and from neglect and being exploited. In sec.148.163, several people submitted comments about client labor in therapeutic communities. Therapeutic client labor used in therapeutic communities is permitted under these rules. Section 148.165 received a suggestion that rules state the commission will inform a facility of the exact nature of a complaint filed against the facility. The commission accepts the suggestion. The comments against these sections were submitted by individuals from within the drug and alcohol treatment community. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.161. Client Abuse, Neglect, and Exploitation. The facility must protect clients from abuse, neglect, and exploitation. (1) Any person who receives an allegation or has reason to suspect that a client has been, is, or will be negatively affected by abuse, neglect, or exploitation must immediately report the information to the facility director or designee. (2) If the information involves sexual exploitation, the facility director must also comply with reporting requirements listed in the Civil Practice and Remedies Code, sec.81.006. (3) The facility director must take immediate action to prevent or stop the abuse, neglect, or exploitation and provide appropriate care and treatment. (4) The facility director or designee must make a verbal report to the Texas Commission on Alcohol and Drug Abuse within 24 hours. This is in addition to the reports specified in the Texas Human Resources Code, sec.48.36, and the Texas Family Code, sec.34.01. (5) The person who reported the incident must submit a written incident report to the facility director within 24 hours. (6) The facility director must submit a written report to the Texas Commission on Alcohol and Drug Abuse within two working days after receiving notification of the incident. This report must include: (A) the name of the client and the person the allegations are against; (B) the information required in the incident report or a copy of the incident report; (C) other individuals, organizations, and law enforcement notified. (7) The facility director must also notify the legal consenter. If the client is the legal consenter, family members and significant others may be notified only if the client gives written consent. (8) The commission may require the governing authority or its designee to investigate an alleged incident of abuse, neglect, or exploitation. (9) The commission may require the governing authority or its designee to take action to resolve an alleged incident of abuse, neglect, or exploitation. (10) The governing authority or its designee must take action needed to prevent any confirmed incident from recurring. (11) The facility must document all investigations and resulting actions and keep the documentation in a central file. (12) Failure to comply with these requirements is grounds for revocation of the facility's license. (13) The facility must have a written policy that clearly prohibits the abuse, neglect, and exploitation of clients and a written procedure that defines the steps that will be taken to investigate and resolve all alleged incidents. (14) The facility must enforce the policy and procedure and provide appropriate sanctions for confirmed violations. sec.148.165. Investigations. The commission will respond appropriately to all complaints filed against a licensed facility. (1) The commission will document and evaluate all complaints filed against a licensed facility. (2) Complaints outside the commission's jurisdiction will be referred to the appropriate agency for action. (3) The commission will prioritize complaints based on the seriousness of the alleged violation and the level of client risk. (4) The commission will investigate all allegations of abuse, neglect, exploitation, and other violations of client rights. (5) The commission will inform the facility of the exact nature of the complaint and may require the facility to conduct an internal investigation. The facility must submit all findings to the commission for review. (6) The facility must provide commission staff access to all documents, evidence, and individuals related to the alleged violation and any internal investigations. (7) The commission will document its findings and conclusions. (8) The commission will inform the facility and the complainant of the results of the investigation. (9) If an investigation substantiates the allegation, the commission will require the facility to take corrective action and/or initiate disciplinary action . The commission may also initiate disciplinary action against a chemical dependency counselor licensed by the commission or a counselor intern or peer intern approved by the commission. 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 December 6, 1994. TRD-9451904 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Client Information 40 TAC sec.sec.148.171-148.173 The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.171-148. 173 concerning facility licensure standards. Sections 148.172 and 148.173 are adopted with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6732). Section 148.171 is adopted without changes and will not be republished. The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections are adopted to establish minimum standards and criteria for obtaining licensing for operation of alcohol and drug treatment facilities in Texas. The sections set standards to ensure meritation and protection of confidential client information. In sec.148.172, and 148.73, language was revised for clarification. These sections set guidelines towards the confidentiality of client information. One comment was submitted on sec.148.173, stating that appropriate court order in the section regarding release of client information needed further definition. Specific requirements are included in the referenced federal regulation. The comment made against these sections was submitted by an individual from within the drug and alcohol treatment community. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.172. General Documentation Requirements. The facility must maintain complete, current, and accurate documentation. (1) All required documents must be factual and accurate. (2) All documents and entries must be signed and dated. If the document relates to past activity, the date of the activity must also be recorded. (3) Documentation must be permanent and legible. (4) When it is necessary to correct a client record, incident report, or other legal document, the error must be marked through with a single line, dated, and initialed by the writer. (5) The facility must create a record for each client at the time of admission. All documents related to active clients must be filed and readily available. (6) All records must conform to the facility's procedures defining standard content and organization. (7) The facility must have an organized file system so that records can be found quickly. sec.148.173. Release of Confidential Information. The facility must protect client records and other client-identifying information from unauthorized disclosure. (1) The facility must implement written procedures for protecting and releasing client information that conform to federal and state confidentiality laws. (2) Facility personnel must follow written procedures for responding to verbal and written requests for client-identifying information. (3) Facility personnel shall not acknowledge the presence of a client or disclose any client-identifying information unless: (A) the client gives full written consent; (B) the disclosure is authorized by an appropriate court order as defined in the federal regulations; (C) the disclosure is made to medical personnel in a medical emergency or to qualified personnel for research, audit, or program evaluation; or (D) the disclosure is otherwise permitted by law. (4) The client's written consent to release information must include: (A) the name of the person or program releasing the information; (B) name of the individual or organization receiving the information; (C) the name of the client; (D) the specific purpose of disclosure; (E) how much and what kind of information will be released; (F) the signature of the legal consenter; (G) the date of signature; (H) a statement that the consenter may revoke the consent at any time (unless otherwise restricted by law), but the revocation will not affect information already released under the consent; and (I) the date, event, or condition upon which the consent will expire. (5) The facility shall not deny a client access to the content of the client's record except as provided by the Texas Health and Safety Code, Title 7, Subtitle E, Chapter 611. 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 December 6, 1994. TRD-9451905 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Crisis Management 40 TAC sec.sec.148.181-148.185 The Texas Commission on Alcohol and Drug Abuse adopts new sec.sec.148.181-148. 185 concerning facility licensure standards. Sections 148.182 and 148.183 are adopted with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6733). Sections 148.181, 148.184, and 148.185 are adopted without changes and will not be republished. The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections are adopted to establish minimum standards and criteria for obtaining licensing for operation of alcohol and drug treatment facilities in Texas. The sections establish standards for reporting and documenting significant incidents, responding to medical and psychiatric emergencies, and using restraint and seclusion to control client behavior. In sec.148.182, if a program accepts pregnant women, the procedures must include specific instructions for pregnancy-related medical emergencies was added. In sec.148.183, language was revised for clarification. These sections set up guidelines for facilities in reporting, documenting, responding, and restraining of clients and their actions. The sections also set up guidelines for responding to emergencies, medical or psychiatric. The commission received one comment in regards to sec.148.185, suggesting specific time frames for reporting adolescents absent without permission. Appropriate time frames will, however, vary with the facility. The comment made against these sections was submitted by an individual from within the drug and alcohol treatment community. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.182. Responding to Emergencies. The facility must ensure that staff have the training and resources necessary to protect the health and safety of clients and other individuals during medical and psychiatric emergencies. (1) The facility must have written procedures for responding to medical emergencies. The procedures must include: (A) using CPR and first aid techniques; (B) getting medical advice and instructions if needed; (C) getting outside assistance and arranging for transportation to an appropriate facility if needed. (2) If a program accepts pregnant women, the procedures must include specific instructions for pregnancy-related medical emergencies. (3) The facility must have written procedures for responding to psychiatric crises. The procedures must include: (A) using crisis intervention techniques; (B) starting special treatment procedures, if applicable; and (C) getting outside assistance and arranging for transportation to an appropriate facility if needed. (4) The facility must post a list of emergency providers and telephone numbers near each telephone. sec.148.183. Special Treatment Procedures. Staff must use special treatment procedures appropriately to protect the health, safety, and rights of clients and other individuals. (1) The governing body must adopt a policy to authorize or prohibit the use of personal restraint, mechanical restraint, and seclusion. (2) In programs authorized to use special treatment procedures, direct care staff must be trained as described in sec.148.114 of this title (relating to Special Training Requirements). (3) Staff shall not use special treatment procedures unless: (A) a client's behavior endangers the client or others; and (B) less restrictive methods have been tried and failed. (4) Staff shall not use special treatment procedures as discipline, for the convenience of staff, or as a substitute for less restrictive methods of intervention. (5) Staff shall not use more force than is reasonable and necessary to prevent imminent harm during special treatment procedures. The use of unnecessary force is considered client abuse. (6) Staff must obtain authorization from the supervising qualified credentialed counselor before starting restraint or seclusion or as soon as possible. (A) Authorization may be obtained in person or by phone. (B) The facility shall not use standing authorizations for special treatment procedures. (C) Each authorization must include a maximum time frame. (7) When staff restrain or seclude a client, a staff person must immediately (or as soon as possible) tell the client what behavior is required for release. (8) Staff must release the client as soon as the client's behavior is no longer a danger to self or others. (9) Staff must immediately release a client if a potentially dangerous situation arises (such as choking, seizures, or fire). (10) During special treatment procedures, staff must provide attention for personal needs, including: (A) regular meals and fluids; (B) regularly prescribed medications; and (C) use of a toilet. (11) Staff must evaluate the incident during the next treatment plan evaluation and develop other strategies for managing the client's behavior and preventing similar incidents. (12) The facility director or designee must review all incident reports involving special treatment procedures, investigate unusual or possibly unjustified use of the procedures, and take appropriate action to address any identified problems. (13) Facilities using personal restraint must comply with the following. (A) Staff shall not personally restrain a client for longer than one hour. At the end of one hour, staff must implement the facility's psychiatric emergency procedures. (B) The supervising staff member must observe the client throughout the incident. (14) Facilities using seclusion must comply with the following. (A) Seclusion rooms must be set up to prevent clients from harming themselves and must allow staff to observe clients easily in all parts of the room. (B) Staff shall not hold a client in seclusion for longer than 12 hours. At the end of 12 hours, staff must implement the facility's psychiatric emergency procedures. (C) Staff must conduct a visual check every 15 minutes and give the client attention for personal needs. (15) Facilities using mechanical restraint must comply with the following. (A) Staff must obtain authorization for mechanical restraint from a physician. (B) Staff shall not hold a client in mechanical restraint for longer than 12 hours. At the end of 12 hours, staff must implement the facility's psychiatric emergency procedures. (C) A staff member must be watching the client throughout the period of restraint. (D) Staff must check the client's circulation every 15 minutes and adjust the restraint as needed. (E) Staff shall not use devices that are not designed for the therapeutic restraint of humans. (16) The facility must have a written procedure for staff that ensures compliance with this 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 December 6, 1994. TRD-9451906 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Subchapter D. Program Services General Program Services Provisions 40 TAC sec.sec.148. 201-148.202 The Texas Commission on Alcohol and Drug Abuse adopts new sections sec.148. 201-148.202, concerning facility licensure standards, with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6735). The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections are adopted to establish minimum standards and criteria for obtaining licensing for operation of alcohol and drug treatment facilities in Texas. The sections provide guidance in selecting portions of the standards to apply to specific programs and describe clinical requirements all programs must comply with. In sec.148.201, language was revised for clarification. In sec.148.202, requirements were added that a facility must also offer treatment for nicotine addiction; a residential client must have a medical history and physical examination; and program test for tuberculosis and sexually transmitted diseases. These sections establish guidelines and requirements that all programs must adhere to in the area of general program services. Comments were received on sec.148.202 in regards to expanding the requirement for tuberculosis testing to include other sexually transmitted diseases. The commission accepts this suggestion. Comments made against these sections were submitted by individuals from within the drug and alcohol treatment community. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.201. General Information. (a) Every program must comply with the rules in sec.148.202 of this title (relating to Services Required in All Programs). (b) Every program must also comply with the standards in all applicable Treatment Level sections: (1) sec.148.211 of this title (relating to Level I Treatment); (2) sec.148.212 of this title (relating to Level II Treatment); (3) sec.148.213 of this title (relating to Level III Treatment); or (4) sec.148.214 of this title (relating to Level IV Treatment); (c) Additional standards and exemptions for specific populations and programs are found under Special Provisions. sec.148.202. Services Required In All Programs. (a) All services must be delivered according to a written plan. (b) Every program must demonstrate cultural competency relevant to the population served. (c) In every program, members of the client's treatment team must demonstrate effective communication and coordination among staff. (d) Chemical dependency education must follow a course outline that identifies lecture topics and major points to be discussed. (e) The program must provide HIV education based on the Model Workplace Guidelines for Direct Service Providers developed by the Texas Department of Health. (f) The program must provide education about the health risks of tobacco products and nicotine addiction. The facility must also offer treatment for nicotine addiction (directly or through referral) and inform the client that this treatment is available. (g) Every residential client must have a medical history and physical examination. (h) The program must make HIV counseling and testing services available to clients directly or through referral. (1) Services must be voluntary, anonymous, and not limited by ability to pay. (2) Counseling must be based on the model protocol developed by the Texas Department of Health. (i) The program must provide access to appropriate medical care and mental health services directly or through referral. (j) The program must make testing for tuberculosis and sexually transmitted diseases available to all clients unless the program has access to test results obtained during the past year. (1) Services may be made available directly or through referral. (2) If a client tests positive, the program must refer the client to an appropriate health care provider and take appropriate steps to protect clients and staff. (k) The facility must refer pregnant clients who are not receiving prenatal care to an appropriate health care provider and monitor follow-through. (l) Every program must refer clients to ancillary services necessary to meet treatment goals. 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 December 6, 1994. TRD-9451907 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Treatment Levels 40 TAC sec.sec.148.211-148.214 The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.211-148. 214, concerning facility licensure standards, with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6736). The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections are adopted to establish minimum standards and criteria for obtaining licensing for operation of alcohol and drug treatment facilities in Texas. The sections define the program services to be delivered in detoxification, primary, and transitional treatment programs. In sec.148.211, the phrase, within 24 hours of admission was added. Also, language in sec.148.211-148.214 was revised for clarification. These sections state how the services, such as detoxification, primary and transitional treatment programs, will be delivered to clients in facilities licensed by the commission. In sec.148.211, the suggestion to substitute the term medical supervisor for clinical supervisor had been made. The commission accepts this suggestion for clarification purposes. Comments were submitted on sec.148.212, suggesting the counselor caseload of one to ten clients be increased to 1:30. The commission feels this would not allow staff to provide adequate individualized treatment for clients. Several individuals requested clarification of the requirements for increasing levels of responsibility in sec.148.213. The clarifications will be addressed in the compliance guide. Suggestions were made to increase the minimum service requirements for Level IV treatment that were addressed in sec.148.214. The commission accepts the suggestion. The comments made against these sections were submitted by individuals from within the drug and alcohol treatment community. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.211. Level I Treatment. (a) All clients admitted to stabilization programs must be in need of detoxification or crisis stabilization. (b) Every client must have a medical history and physical. (1) Residential clients must have the medical history and physical within 24 hours of admission. If the facility cannot meet this deadline because of exceptional circumstances, the circumstances must be documented in the client record. Until a client's medical history and physical is complete, staff must observe the client closely and monitor vital signs. (2) Outpatient clients must have the medical history and physical before admission. (c) The program must provide continuous supervision for clients. (1) In residential programs, direct care staff must be awake and on-site 24 hours a day. (A) During day and evening hours, at least two awake staff must be on duty for the first 12 clients, with one more person on duty for each additional one to 16 clients. (B) At night, at least one awake staff member must be on duty for the first 12 clients, with one more person on duty for each additional one to 16 clients. (2) In outpatient programs, direct care staff must be awake and on-site whenever a client is on-site. Client must have access to on-call staff 24 hours a day. (d) If the program accepts clients with acute detoxification symptoms or a history of acute detoxification symptoms, the program must have: (1) an LVN or RN on duty during all hours of operation; and (2) a physician on call 24 hours a day. (e) Level of observation must be based on medical recommendations and program design. (f) A physician must approve all medical policies, procedures, guidelines, tools, and forms, which must include: (1) screening instruments (including a medical risk assessment) and procedures; (2) treatment protocol or standing orders for each chemical the program is prepared to detoxify; and (3) emergency procedures. (g) The program must ensure continuous access to emergency medical care. (h) The program must provide clients access to mental health evaluation and linkage with mental health services when indicated. (i) The program must develop and follow written procedures that describe activities to encourage clients to seek appropriate treatment after stabilization. (j) The medical supervisor must be a physician, physician assistant, advanced nurse practitioner, or registered nurse. (k) Direct care staff must complete training as described in sec.148.114 of this title (relating to Special Training Requirements). (l) Staff must help each client develop an individualized post-stabilization plan that includes appropriate referrals. sec.148.212. Level II Treatment. (a) All clients admitted to Level II must be: (1) medically stable; and (2) able to participate in treatment. (b) The program must have sufficient staffing to provide close supervision and individualized treatment. (c) Counselor caseloads shall not exceed 1:10. (d) Direct-care must be awake and on site during all hours of program operation. The ratio for direct-care staff to clients must be at least 1:16: (1) during the hours clients are awake in residential programs; and (2) during all hours of operation in outpatient programs. (e) Counselors must complete a comprehensive client assessment within three individual service days of admission. (f) An individualized treatment plan must be completed within five individual service days of admission. (g) The facility must develop and implement procedures to deliver an average of 20 hours of structured activities per week for each client. These hours must include at least: (1) ten hours of chemical dependency education and/or counseling; (2) four hours of additional treatment or rehabilitation activities; and (3) three hours of structured social and/or recreational activities. (h) The program must provide each client an opportunity to participate in physical recreation at least weekly. (i) Program staff must make chemical dependency services available to identified significant others. (j) The program must provide each client with opportunities to apply knowledge and practice skills in a structured, supportive environment. sec.148.213. Level III Treatment. (a) All clients admitted to Level III must be: (1) medically stable; and (2) able to function with limited supervision and support. (b) The program must have sufficient staffing to meet treatment needs within the context of the program description. (c) Counselor caseloads shall not exceed 1:16. (d) Direct care must be awake and on site during all hours of program operation. The ratio for direct-care staff to clients must be at least 1:16: (1) during the hours clients are awake in residential programs; and (2) during all hours of operation in outpatient programs. (e) For clients admitted directly to this level of treatment, counselors must complete a comprehensive client assessment within five individual service days of admission. (f) An individualized treatment plan must be completed within seven individual service days of admission. (g) The facility must develop and implement procedures to deliver an average of ten hours of structured activities per week for each client. These hours must include at least five hours of chemical dependency education and/or counseling. (h) The program design and application must include increasing levels of responsibility for clients and frequent opportunities for clients to apply knowledge and practice skills in structured and non-structured settings. sec.148.214. Level IV Treatment. (a) All clients admitted to intermediate programs must be: (1) medically stable; and (2) able to function with minimal structure and support. (b) The program must have sufficient staffing to provide clients with adequate support and guidance. (c) The program must set limits on counselor caseload size that ensure effective, individualized treatment and rehabilitation. Criteria used to set the caseload size must be documented. (d) The program must be adequately staffed during hours of operation to ensure effective service delivery. (e) In residential programs, the ratio for awake direct-care staff to clients must be at least 1:16 during the hours clients are awake. (f) For clients admitted directly to this level of treatment, counselors must complete a comprehensive client assessment within: (1) five individual service days of admission in residential programs; and (2) 45 calendar days of admission in outpatient programs. (g) An individualized treatment plan must be completed within: (1) seven individual service days of admission in residential programs; and (2) 45 calendar days of admission in residential programs. (h) The facility must develop and implement procedures to deliver an average of two hours of structured activities per week for each client. These activities must be designed to help clients establish a healthy, independent lifestyle. At least one hour must be chemical dependency education and/or counseling. (i) The program design and application must include increasing levels of responsibility for clients and frequent opportunities for clients to independently apply knowledge and practice skills in non-structured settings. (j) The program must offer chemical dependency counseling 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 December 6, 1994. TRD-9451908 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Special Provisions 40 TAC sec.sec.148.231-148.235 The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.231-148. 235, concerning facility licensure standards. Sections 148.231, 148.232, 148. 234, and 148.235 are adopted with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6737). Section 148.233 is adopted without changes and will not be republished. The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections are adopted to establish minimum standards and criteria for obtaining licensing for operation of alcohol and drug treatment facilities in Texas. The sections specify special provisions and requirements for adolescent programs, programs serving parents with dependent children, programs in correctional facilities, and synthetic narcotic programs. In sec.148.231, paragraph (4), the education substitution was deleted. In sec.148.232, sec.148.234, and sec.148.235, language was revised for clarification. These sections establishes the guidelines that programs dealing with adolescents and parents with dependent children must adhere to, as well as with correctional facility programs and synthetic narcotic programs. Several comments were made in support of sec.148.231, but one comment opposed paragraph (4), stating the wording lead to some confusion. The commission accepts the suggestion and deleted the confusing language. Comments made for and against these sections were submitted by individuals from within the drug and alcohol treatment community. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.231. Adolescents. The facility must provide services that address the special needs of adolescents and protect their rights. (1) Residential facilities must provide adequate separation of bedrooms and bathrooms for adults and adolescents and for males and females. (2) Adults and adolescents may be mixed for specific groups or activities when no conflict exists. (3) The facility shall obtain authorization to obtain medical treatment from the consenter when the client is admitted. (4) Residential and day-treatment must provide access to education approved by TEA when treatment is expected to last more than 14 days. (5) The program's treatment services, lectures, and written materials must be age-appropriate and easily understood by clients. (6) The facility must allow regular communication between an adolescent client and the client's family. (7) The facility must ensure that staff who plan, supervise, or deliver adolescent treatment services have specialized education or training in the emotional, mental health, and chemical dependency problems of adolescents and appropriate treatment for them. In addition to non-violent crisis intervention, all direct-care staff must be trained and competent to use personal restraint to prevent injury to a person. (8) In residential programs, the direct care staff-to-client ratio must be at least 1:8 during waking hours and 1:16 during sleeping hours. (9) The direct care staff-to-client ratio must be maintained for program- sponsored activities away from the facility, including transportation. (10) Clients must be under direct supervision at all times. (A) At the program site, staff must be within eyesight or hearing distance and readily available at all times. If clients are not within eyesight, staff must conduct visual checks at least once every hour, including bed checks. (B) In public places, clients must be within eyesight at all times. (11) Admission criteria must limit admission to adolescents 13-17 years of age. (A) Children who are 10-12 years of age and young adults 18-20 years of age may be admitted only when the assessment indicates that the individual's needs, experiences, and behavior are similar to those of adolescent clients. (B) Each exception must be approved in writing by the program director. (12) The treatment plan must address adolescent needs and issues. (13) The program must involve the adolescent's family or an alternate support system in the treatment process or document why this is not happening. (14) Staff shall not provide, distribute, or facilitate access to tobacco products. (15) Staff shall not use tobacco products in the presence of adolescent clients. (16) The program must prohibit adolescent clients from using tobacco products on the program site or during structured program activities. (17) Residential programs must define the level of care provided according to the statewide level of care system. sec.148.232. Parents and Their Dependent Children. These standards apply to all programs that are designed to meet the specialized treatment needs of individuals with dependent children and that include some form of services for children. These programs must address the specialized needs of the parent and protect the health, safety, and welfare of the children. (1) The treatment and rehabilitation services must address: (A) the effects of chemical dependency on a women's health and pregnancy; (B) parenting skills; and (C) health and nutrition. (2) The program must have a procedure to regularly assess parent-child interactions. Any identified needs must be addressed in treatment. (3) Program staff must provide an opportunity for clients to receive family planning services. (4) The program must provide or arrange for childcare with a qualified provider while the mother participates in treatment activities. Before supervising children independently, the provider must have infant CPR certification and at least eight hours of training in the following areas: (A) chemical dependency and its impact on the family; (B) child development and age-appropriate activities; (C) child health and safety; (D) universal precautions; (E) appropriate child supervision techniques; and (F) signs of child abuse. (5) Staff shall not allow anyone except the legal guardian or a person authorized by the legal guardian to take a child away from the facility. If an individual shows documentation of legal custody, staff must record the person's identification before releasing the child. (6) The program must have a procedure to use if a parent abuses or neglects a child. (7) Residential programs shall not accept dependents over the age of 12. (8) Children over the age of six shall not share a bedroom with a member of the opposite sex who is not in the immediate family. sec.148.234. Correctional Facilities. Correctional facilities and community facilities participating in the state's Criminal Justice Initiative shall implement modified policies and procedures as needed to meet the goals of the Texas Commission on Alcohol and Drug Abuse and the criminal justice system when approved by the commission. The commission will publish a separate Licensure Compliance Guide for these facilities. (1) Programs in state and local correctional facilities shall not be required to meet standards in areas under the control of the correctional system as approved by the commission. (A) In-Prison Therapeutic Communities (ITC's) and Substance Abuse Felony Punishment Facilities (SAFPF's) must comply with the rules of the Texas Department of Criminal Justice (TDCJ). (B) County jails must comply with applicable regulations. (2) When TDCJ rules conflict with TCADA rules, TDCJ rules shall prevail. (3) When TCADA criminal justice contract requirements conflict with TCADA rules, the contract requirements shall prevail. (4) Programs operating in correctional facilities are exempt from the following standards: (A) sec.sec.148. 351-148.359 of this title (relating to Residential Physical Plant Requirements) ; (B) sec.sec.148.251-148.254 of this title (relating to Food and Nutrition); and (C) sec.sec.148.261-148.268 of this title (relating to Medication). (5) The commission may grant additional exemptions and variances when the intent of the standard is clearly met, as provided in sec.148.4 of this title (relating to Variances). sec.148.235. Pharmacotherapy Programs. Synthetic narcotic programs must provide appropriate chemical dependency treatment based on the medical model. (1) Synthetic narcotic programs must comply with applicable rules established by the Texas Department of Health (Texas Administrative Code, 40 TAC sec.sec.229.141-229.152 and the Food and Drug Administration (Code of Federal Regulations, Title 21, Chapter 1, Part 291). (2) The commission's rules for medication do not apply to methadone and other synthetic narcotics regulated by the Texas Department of Health. (3) Admission screening must be performed by a licensed medical professional or a chemical dependency counselor with at least one year of pharmacotherapy experience. (4) Admission must be authorized by a physician. (5) Each client must have a medical history and physical examination filed in the client record. (6) Treatment must be consistent with recognized standards of current pharmacotherapy practice. (7) Counseling and medical services must be based on the assessment and recommendations of the treatment team and ordered by a physician. (A) The program must provide at least four individual counseling sessions during the first 45 days of treatment. (B) After the first 45 days, the frequency of counseling must be based on the individualized assessment. (C) The client record must contain documentation to support the frequency of counseling ordered. (8) The program must provide case management services. (A) A case manager must be assigned to each client. (B) The case manager must be a chemical dependency counselor or a licensed medical professional. (C) When the client is participating in regular counseling, the primary counselor must be the case manager. (9) The client record must contain regular documentation of the client's status, including: (A) adequacy of dose; (B) results of recent drug urine screens; (C) physical status and use of prescription medication; (D) employment/vocational needs; (E) legal and social status; (F) overall client stability; and (G) other relevant information. (10) All direct-care staff must demonstrate knowledge or receive training that includes: (A) symptoms of opiate withdrawal; (B) drug urine screens; (C) current standards of pharmacotherapy; and (D) poly-drug addiction. 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 December 6, 1994. TRD-9451909 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Food and Nutrition 40 TAC sec.sec.148.251-148.254. The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.251-148. 254 concerning facility licensure standards. Section 148.252 is adopted with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 Tex Reg 6740). Sections 148.251, 148.253 and 148.254 are adopted without changes and will not be republished. The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections are adopted to establish minimum standards and criteria for obtaining licensing for operation of alcohol and drug treatment facilities in Texas. The sections set standards for meals served in treatment programs with options for a range of delivery systems. In sec.148.252, language was revised for clarification. These sections establish guidelines for serving meals in treatment facilities with the opportunity to allow other arrangements to be made in the area of nutrition for clients in treatment programs. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.252. Meals in Residential Programs. Residential programs must provide wholesome meals that meet clients' nutritional needs. (1) The program must provide wholesome, well-balanced meals. (2) The program must provide modified diets to residents who medically require them as determined by a licensed medical professional. Special diets must be prepared in consultation with a licensed dietitian. (3) All food must be selected, stored, prepared, and served in a safe, healthy manner. (4) The program must provide at least three meals daily, with no more than 14 hours between any two meals. (5) A licensed dietitian must approve menus and written guidelines for substitutions in advance; or (A) approve a meal-planning manual with sample menus and guidelines for substitutions; (B) approve menus prepared by new staff before they plan meals independently; (C) review a sample of menus served at least annually; and (D) provide staff training as needed. 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 December 6, 1994. TRD-9451910 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Medication 40 TAC sec.sec.148.261-148.268 The Texas Commission on Alcohol and Drug Abuse adopts new sec.sec.148.261-148. 268 concerning facility licensure standards. Section 148.268 is adopted with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 Tex Reg 6741). Sections 148.261-148.267 are adopted without changes and will not be republished. The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections establish requirements for the storage, handling, and administration of medication. In sec.148.268(c), language was deleted to ensure compliance with existing statutes. These sections ensure that medications will be handled, stored, and administered in a safe manner. In sec.148.265, 148.266, and 148.268, several comments were made objecting to the new rules on individual doses of medication. These rules will ensure compliance with existing statutes. Comments made against these sections were submitted by individuals from within the drug and alcohol treatment community. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.268. Self-Administration of Medication. (a) Clients may self-administer medication under the supervision of staff who are trained as described in sec.148.114 of this title (relating to Staff Training). (b) Supervision is limited to: (1) removing the container from storage; (2) handing the container to the client; (3) observing the client take the medication; (4) immediately reporting to a medical professional any unusual signs, symptoms, or actions; and (5) returning the container to storage. 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 December 6, 1994. TRD-9451911 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Subchapter E. Treatment Process Admission 40 TAC sec.sec.148.281-148.284 The Texas Commission on Alcohol and Drug Abuse adopts new sec.sec.148.281-148. 284 concerning facility licensure standards. Sections 148.281, and 148.284 are adopted with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6742). Section 148.282 and 148. 283 are adopted without changes and will not be republished. The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections specify requirements related to the admission process. In sec.148.281, language was revised to ensure compliance with existing statutes. In sec.148.284, the term disciplinary was changed to any behavior management. These sections set the guidelines on how admission of a client to an alcohol or drug treatment facility must be handled. Comments were received in regards to sec.148.282, where concern was stressed that the standard did not match the Texas Department Health. The commission believes this is a valid interpretation of the statute. It is not parallel to the Texas Department Health, but feel that it is more appropriate for chemical dependency treatment facilities. Comments made against these sections were submitted by individuals from within the drug and alcohol treatment community. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.281. Admission. (a) Each program must have written admission criteria describing the observable and measurable symptoms, behavior, and conditions that qualify a person for admission. (b) The criteria must describe a client population appropriate for the program . (c) Every person admitted must be chemically dependent or in need of detoxification. (d) Individuals in need of detoxification must be treated in a Level I program. (e) The criteria must specify the age group to be served. sec.148.284. Client Orientation. The facility must provide a complete orientation for clients and consenters. (1) The orientation should include family members and significant others identified by the client when appropriate. (2) The facility must explain the information aloud in a way the client and legal consenter can understand. (3) The orientation must include: (A) the Client Bill of Rights; (B) the client grievance procedure; (C) the program rules; (D) violations and other behavior that can lead to disciplinary action or discharge; (E) any behavior management procedures used to enforce program rules; (F) the program's philosophy and treatment objectives; (G) opportunities for family or significant others involvement in the treatment program; and (H) rules about visits, telephone calls, mail, and gifts, as applicable. (4) The facility must provide the orientation within one working day of admission. (5) If an emergency or the client's physical or mental condition prevents orientation within 24 hours, staff must explain the circumstances in the client record and present the information as soon as possible. (6) The client record must contain documentation signed and dated by the client showing that the client understands and has received a copy of the Client Bill of Rights, the client grievance procedure, and the program rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 6, 1994. TRD-9451912 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Stabilization Process (Level I) 40 TAC sec.sec.148. 291-148.293 The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.291-148. 293, concerning facility licensure standards. Section 148.291 and sec.148.293 are adopted with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 Tex Reg 6743). Section 148.292 is adopted without changes and will not be republished. The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections establish requirements for evaluating client needs, planning appropriate responses, and documenting treatment during the detoxification process. In sec.148.291, the time requirement for filing the completed history in the client record was changed from within 24 hours to within 72 hours. In sec.148.293, wording was revised for clarification. These sections set the guidelines on how to evaluate clients and their needs, how to respond properly to the client, and how to document the clients' treatment while going through detoxification . No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.291. Stabilization History. The program must obtain enough medical and psychosocial information about the client to provide a clear understanding of the client's present status. (1) A chemical dependency counselor or licensed medical professional must collect and document the following information: (A) alcohol and other drug use, past and present; (B) prior psychiatric and chemical dependency treatment; (C) significant medical history and current health status; (D) current living situation; (E) current employment situation; and (F) current emotional state and behavioral functioning. (2) The stabilization history must be initiated within 24 hours of admission. The completed history must be filed in the client record within 72 hours. If an emergency or the client's physical condition prevents documentation within 24 hours, staff must explain the circumstances in the client record and obtain the information as soon as possible. (3) A completed medical history and physical examination must be filed in the client record within 24 hours of admission. A medical history and physical examination completed during the 24 hours preceding admission may be substituted if it is approved by the program's physician, physician assistant, or advanced nurse practitioner. sec.148.293. Stabilization Notes. The program must implement the stabilization plan and document the client's response. (1) Program staff must document services provided to the client. This may be done by filing a copy of the program schedule in the client record and documenting the client's level of participation. (2) Staff must record timed and dated stabilization observation notes during each shift. These notes must include: (A) the client's physical condition, including vital signs; (B) the client's mood and behavior; (C) client statements about the client's condition and needs; (D) information about the client's progress or lack of progress in relation to treatment goals. (3) Additional notes must be documented as needed. 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 December 6, 1994. TRD-9451913 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Primary and Transitional Treatment Process (Level II, III, and IV) 40 TAC sec.sec.148.301-148.304 The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.301-148. 304 concerning facility licensure standards. Sections 148.301, 148.302 and 148. 304 are adopted with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 Tex Reg 6744). Section 148. 303 is adopted without changes and will not be republished. The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections describe requirements for evaluating client needs, planning appropriate response, and documenting treatment during primary and transitional treatment. In sec.148.301, paragraph (5) was added for residential clients being given a completed medical history and physical examination within 96 hours of admission and documented in the clients records. In 148.302(1), the wording is changed for clarification. In sec.148.304, an assessment of the continued appropriateness of the current treatment level was added. These sections set guidelines to ensure that all of the clients' needs are being met through appropriate responses, documentation of treatment during primary and transitional treatment. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.301. Psychosocial History. The program must obtain enough psychosocial information about the client to provide a thorough understanding of the client's history and present status. (1) A counselor must document a comprehensive psychosocial history which includes: (A) circumstances leading to admission; (B) alcohol and other drug use, past and present; (C) prior psychiatric and chemical dependency treatment; (D) significant medical history and current health status; (E) family and social history; (F) current living situation; (G) relationships with family of origin, nuclear family, and significant others; (H) education and vocational training; (I) employment history and current status (including military); (J) legal history and current legal status; (K) emotional state and behavioral functioning, past and present; and (L) strengths, weakness, and needs. (2) The program may use a client questionnaire to gather some of the information needed for the psychosocial evaluation, but a counselor must review and discuss the questionnaire with the client and document the discussion, including additional information needed to provide a clear and comprehensive psychosocial history. (3) Programs may use a psychosocial history from an outside source if: (A) it meets the commission's criteria; (B) it was completed during the six months preceding admission; and (C) a counselor reviews the information with the client and documents an update. (4) A qualified credentialed counselor must review and sign the psychosocial history and/or any updates. (5) For residential clients, a completed medical history and physical examination must be filed in the client record within 96 hours of admission. (A) The facility may use a medical history and physical examination completed up to 30 days before admission or received from the referring facility if a physician, physician assistant, advanced nurse practitioner, or registered nurse reviews the information with the client and documents an update within 96 hours of admission. (B) When the update reflects a significant change in the client's status, the client must receive further evaluation from a physician. sec.148.302. Treatment Plan. The program must identify each client's needs and develop an individualized treatment plan. (1) A counselor must develop a written list of the client's problems and needs based on the psychosocial history. (2) The counselor and client must work together to develop a written treatment plan that addresses identified problems and needs. When possible and appropriate, family members and significant others should also participate. (3) The program must involve the client's family or an alternate support system in the treatment process or document why this is not happening. (4) Goals must clearly state in behavioral terms what the client is expected to achieve during treatment. (5) The treatment plan must list the services and other strategies the program will provide to help the client achieve the goals. (6) The treatment plan must identify the client's primary counselor. (7) The treatment plan must be dated and signed by the client and the counselor. (8) A qualified credentialed counselor must review and sign the treatment plan. sec.148.304. Treatment Plan Reviews. The program must evaluate the client's progress and revise the treatment plan to meet changing needs. (1) The primary counselor must meet with the client to review the treatment plan at appropriate intervals. (2) The treatment plan review must include: (A) an evaluation of the client's progress toward each goal; (B) revision of the goals as needed; and (C) an assessment of the continued appropriateness of the current treatment level. (3) All reviews and revised treatment plans must be dated and signed by the client and the counselor. If the counselor is a counselor intern, the document must be reviewed and signed by a qualified credentialed counselor. 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 December 6, 1994. TRD-9451914 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Discharge 40 TAC sec.sec.148.321-148.325 The Texas Commission on Alcohol and Drug Abuse adopts new sec.sec.148.321-148. 325 concerning facility licensure standards. Sections 148.321, and 148.325 are adopted with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 Tex Reg 6745). Sections 148.322-148.324 are adopted without changes and will not be republished. The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections describe requirements for written criteria to discharge or transfer, provide protection and continuity of services, completion of discharge summary, discharge follow-up, and how to deal with a request for discharge of clients. In sec.148.321 and sec.148.325, language was revised for clarification. These sections set the guidelines on how to discharge clients and provide protection, services and follow-up on clients that leave the facilities. A comment was received on sec.148.324, requesting an exception to the rules requiring follow-up contact of clients in acute care hospitals. This contact is mandated by law. The comment made against these sections was submitted by individuals from within the drug and alcohol treatment community. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.321. Discharge Criteria. Each program must develop and follow appropriate, written criteria to decide when clients will be discharged or transferred to another level within the facility. The criteria must describe: (1) indicators used to determine satisfactory completion of the level; (2) circumstances under which clients may be referred or transferred to another level or facility; and (3) circumstances under which clients may be discharged before completing the program. sec.148.325. Request for Discharge. The facility must not hold a voluntary client against the consenter's will. (1) The facility must have written procedures for handling discharge requests that comply with applicable statutes. (2) The facility must comply with all applicable statutes governing the discharge process. (3) The facility must comply with the provisions of Texas Health and Safety Code, Title 2, Subtitle H, sec.464.164 and shall not try to keep a client in treatment by coercion, intimidation, or misrepresentation. (4) The facility shall not say or do anything to influence the client's decision that is not justified by the client's condition. 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 December 6, 1994. TRD-9451915 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Subchapter F. Physical Plant General Physical Plant Provisions 40 TAC sec.148.341 The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.341, concerning facility licensure standards, without changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6746). The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. This section describes specific physical plant requirements for physical plants for required inspections and describes the documentation needed for compliance. This section sets the guidelines and requirements for physical plants in alcohol and drug treatment facilities. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment 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 December 6, 1994. TRD-9451916 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Residential Physical Plant Requirements 40 TAC sec.sec.148.351-148.359 The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.351-148. 359 concerning facility licensure standards. Sections 148.351, 148.354 and 148. 356 are adopted with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 Tex Reg 6747). Sections 148. 352, 148.353, 148.355, 148.357-148.359 are adopted without changes and will not be republished. The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections describe specific physical plant requirements for residential physical plants for required inspections and describes the documentation needed for compliance. In sec.148.351(a), paragraph (1), subparagraph (D) was deleted because subparagraph (B) already covered the area deleted. In sec.148.354, language was revised for clarification. In sec.148. 356, a grammatical correction was made. These sections set up the acceptable standards for safety guidelines for residential facilities to provide a safe environment for clients in residential treatment. Comments opposing sec.148.354, were submitted to the commission. Concern was expressed about the requirement that Each building housing 16 or more clients must have a fixed, automated, interconnected, electrically operated smoke detection system. The concern was that this rule would leave less than 16 client facilities unprotected. The recommendation was to revise the standard to read A fire detection, alarm, and communication system required for life safety shall be installed, tested, and maintained in accordance with the facilities occupancy and capacity classifications. The commission accepts the suggestion that smoke detection requirements for facilities housing less than 16 clients be consistent with the life safety code and a facility's occupancy and capacity classifications. Comments made against these sections were submitted by individuals from within the drug and alcohol treatment community. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.351. Required Inspections. The facility must pass all required inspections and keep a current file of reports and other documentation needed to demonstrate compliance with applicable laws and regulations. (1) The following inspections are required: (A) annual fire marshal inspection; (B) annual inspection of the alarm system by the fire marshal or an inspector authorized to install and inspect such systems; (C) quarterly fire alarm system test by facility staff; (D) annual kitchen inspection as specified in the Texas Health and Safety Code, Title 6, Subtitle A, Chapter 431; (E) gas pipe pressure test once every three years by the local gas company or a licensed plumber; (F) annual inspection and maintenance of fire extinguishers by personnel licensed or certified to perform those duties; and (G) regular inspections of elevators as required by the Safety Code for Elevators and Escalators. (2) The following documentation is required: (A) certificate of occupancy as required by local authorities; (B) documentation that the water supply is from a system approved by the Department of Health or a system regulated by the local authority; (C) documentation that the sewage system is connected to a system approved by the Department of Health or a system regulated by the local authority; (D) documentation that the program site complies with national or local electrical codes; (E) a fire alarm installation certificate; and (F) documentation that the liquefied petroleum supply has been inspected and approved by the Texas Railroad Commission, if applicable. sec.148.354. Fire Systems. (a) A fire detection, alarm, and communication system required for life safety shall be installed, tested and maintained in accordance with the facility's occupancy and capacity classifications. (b) Electrical fire alarm systems must be installed by agents registered with the State Fire Marshal's office. (c) Alarms must be loud enough to be heard above normal noise levels. (d) A:B:C fire extinguishers must be mounted throughout the facility as required by code and approved by the fire marshal. (1) There must be at least one portable A:B:C extinguisher for each laundry and walk-in mechanical room and one B:C fire extinguisher in each kitchen. (2) Each extinguisher must have the required maintenance service tag attached. (e) Staff must conduct quarterly inspections of fire extinguishers for proper location, obvious physical damage, and a full charge on the gauge. sec.148.356. Lighting. (a) The facility must have adequate lighting to provide a safe environment and meet user needs. (b) Bedrooms must have windows with appropriate coverings for privacy. (c) Light bulbs must have wire guards or other shields. 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 December 6, 1994. TRD-9451917 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Special Physical Plant Requirements 40 TAC sec.148.371, sec.148.372 The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.371 and sec.148.372, concerning facility licensure standards. Section 148.371 is adopted with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6748). Section 148.372 is adopted without changes and will not be republished. The rules in this chapter will replace rules in Chapter 151 currently proposed for repeal. These sections describe specific physical plant requirements for single family units and facilities housing children. In sec.148.371, language was revised for clarification. These sections set guidelines for physical plants for single-family dwellings and where facilities house children. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. sec.148.371. Small Family-Living Environment. A small family-living environment is a single apartment unit, house, or similar residence housing no more than six people. (1) If the unit is owned or operated by another entity, the facility must have a written agreement that defines responsibilities and addresses at least the following issues: (A) finances; (B) maintenance; and (C) client confidentiality. (2) Each unit must meet applicable state laws and local codes and ordinances. (3) Buildings must be inspected and approved annually by the fire marshal as required. (4) Each unit must have at least one working, portable A:B:C fire extinguisher for the living area and one B:C fire extinguisher for the kitchen. Fire extinguishers must be approved by the Underwriter Laboratories or the fire marshal. (5) Each unit must have at least one working smoke detector approved by the Underwriter Laboratories or the fire marshal. (6) Doors must not require a key for exit from the inside. (7) Buildings and grounds must be structurally sound, in good repair, and clean. (8) All plumbing, equipment, and appliances must be maintained in good working condition. (9) Clients must be able to keep the temperature between 65 degrees and 85 degrees Fahrenheit. (10) There must be at least 40 square feet per client in multiple-occupant bedrooms and at least 80 square feet per client in single-occupant bedrooms. (11) In multiple-occupant residences, bedrooms must have doors for privacy. (12) The residence must have a bathroom with a sink, a toilet, and a tub or shower with an adequate supply of hot water. (13) The residence must have cooking facilities that include a sink with hot water, a stove, and a refrigerator. (14) Lighting must be sufficient to meet the needs of clients. (15) The residence must be appropriately furnished and have an atmosphere that preserves client dignity and confidentiality. (16) Each client must have a separate bed with a solid frame and mattress. (17) The residence must have adequate closet and drawer space for each client to store clothes and personal property. (18) Clients must have access to private or public laundry facilities. (19) The facility must inspect the residence at least quarterly to monitor compliance with these standards and correct identified problems. 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 December 6, 1994. TRD-9451918 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Chapter 151. Licensure General Provisions 40 TAC sec.sec.151.11-151.19, 151.21, 151.22 The Texas Commission on Alcohol and Drug Abuse adopts the repeal of sec.sec.151.11-151.19, 151.21, and 151.22, concerning licensure of chemical dependency treatment facilities, without changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6749). These sections provide basic information about licensure, including definitions used in the licensure standards. These rules will be replaced with a new set of rules adopted as Chapter 148 of this title. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment 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 December 6, 1994. TRD-9451919 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Licensure Procedures 40 TAC sec.sec.151.31-151.38 The Texas Commission on Alcohol and Drug Abuse adopts the repeal of sec.sec.151.31-151.38, concerning licensure of chemical dependency treatment facilities, without changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6750). These sections describe the licensure process. These rules will be replaced with a new set of rules adopted as Chapter 148 of this title. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment 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 December 6, 1994. TRD-9451920 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720 Licensure Standards 40 TAC sec.sec.151.61, 151.63-151.73, 151.80-151.86, 151.101-151. 111. The Texas Commission on Alcohol and Drug Abuse adopts the repeal of sec.151.61, 151.63-151.73, 151.80-151.86, 151.101-151.111, concerning licensure of chemical dependency treatment facilities, without changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 Tex Reg 6750). These sections describe the minimum requirements for licensure. These rules will be replaced with a new set of rules adopted as Chapter 148 of this title. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment 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 December 6, 1994. TRD-9451921 J. Ben Bynum Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 1, 1995 Proposal publication date: August 26, 1994 For further information, please call: (512) 867-8720