ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 2. Enforcement Procedures Subchapter A. Field Citation Program 4 TAC sec.sec.2.1-2.6 The Texas Department of Agriculture (the department) adopts new sec.sec.2.1-2. 6, concerning the establishment of a field citation program for assessment of administrative penalties for certain minor violations of the Texas Agriculture Code (the Code). Sections 2.1, 2.3, and 2.5 are adopted with changes to the proposed text as published in the June 21, 1994, issue of the Texas Register (19 TexReg 4797). Section 2.2 and sec.2.6 are adopted without changes and will not be republished. Chapter 2 is adopted to establish a new enforcement mechanism to assist the department in its role as a regulatory agency. The ability to issue citations or warnings will be a more efficient and cost effective means of addressing certain minor violations. Instead of forwarding documentation of violations to the department's legal division for review and then sending documents assessing an administrative penalty back to the respondent, the department's inspector can directly give the respondent the assessed administrative penalty. Section 2.1 has been changed for purposes of clarification and to add a sunset provision for these rules. Sections 2.3-2.5 were changed to make the regulations clearer and address comments received regarding an inspector's discretion in assessing a warning or citation. The language in sec.2.3 and sec.2. 4 was changed to clarify that once a violation is found, the inspector has no discretion and must issue either a warning or a citation. Section 2.4 has been changed and eliminates the 14 day time frame regarding reinspection and mandates a reinspection unless it is determined that reinspection is not necessary. This change was in response to a concern that inspectors were afforded too much discretion in regards to reinspection. Section 2.4(b)(2) has been modified to only allow for the issuance of one citation for the same violation before the penalty amount is doubled. Additionally, it provides that upon the third finding of the same violation, the matter will be referred to the department's legal division. The change to sec.2.5 clarifies the department's statutory authority in finding that a violation which exists on one day and is not corrected upon reinspection constitutes a separate violation upon which enforcement action may be based. Under sec.2.5(c)(2), the Grain Warehouse violation was modified to clarify the specific record which must be complete and correct. Additionally, the Seed Quality violation was deleted as the current system of handling seed violations is more efficient than utilization of the field citation program. Further, administrative penalties for the Seed Quality violation are assessed against distributors who are not present at the retail establishments. Therefore, issuing a warning or citation to the retail establishment at the time of the inspection would not achieve the purpose of the field citation program. The language in sec.2.5(c)(3) was modified to clarify that penalties may be adjusted only upon referral of a violation to the department's legal division. The new sections provide definitions to be used in Chapter 2; provide the procedure for issuance of a warning or a citation by an inspector and the contents of such a warning and citation; provide for the requesting of a hearing on a proposed penalty and/or the occurrence of a violation; set base penalties for certain violations of the Code; and provide for adjustment of such penalties. pComments in opposition to the proposed enforcement procedures were submitted by Kelly Green Seeds, Texas Rural Legal Aid, the Lone Star Chapter of the Sierra Club, Consumers' Union, Clean Water Action, Texas Grain & Feed Association, South Texas Project, numerous individuals in the grain and feed industry and others. General comments were also received by Texas Citrus Mutual. One comment was submitted by an individual generally in support of the proposal. The comments in opposition to adoption of the field citation program were concerned that inspectors were afforded too much discretion which could lead to unequal or selective enforcement. In response to these concerns, the department will issue guidelines to inspectors setting forth under what circumstances it will be appropriate to issue a warning versus a citation and the circumstances in which immediate referral of a matter to the department's legal division is warranted. In situations where a violation for which a citation or warning may be issued is discovered along with evidence of a more serious violation, the more serious violation will be pursued and referred to the legal division. For example, a dealer who omits one or two entries in his records may receive a warning while a dealer with numerous omissions will receive a citation upon initial inspection. If a dealer had no records or fraudulent records, then the matter will be referred immediately to the department's legal division. The guidelines will also address when the required reinspection is not necessary. For example, if the violation is failure to obtain a license and the inspector is able to verify through the department that a license is subsequently obtained, reinspection is not necessary. A recordkeeping violation, however, will warrant a reinspection. Also, inspector training will emphasize uniform application of the guidelines. Nevertheless, as under the current enforcement procedures, the department through its inspectors must be given discretion to assess and utilize the most effective enforcement tool. Comment was made that the penalty amounts within the field citation program were too low to provide any type of compliance incentive and that penalties under the current enforcement procedures for the department's pesticide program in particular were substantially higher. Given the minor nature of the violations, the department has determined that the penalty amounts are appropriate. Herbicide spray permits must be obtained for each herbicide application and are issued upon request. The department generally becomes aware of a failure to obtain a herbicide spray permit through a complaint investigation or by self-reporting. In context of a complaint investigation, the applicator is also subject to higher penalties for any violations that may have occurred in the application of the herbicide. In regards to self-reporting, higher penalties would discourage applicators from informing the department of possible failure to obtain herbicide permits. As to dealer records, the department discovers violations through a complaint investigation or routine inspection. There have been few cases brought by the department for failing to maintain information on sales. Therefore, enforcement activity under the field citation program is expected to be more effective than current enforcement activity. Additionally, while the current penalty schedule allows for higher penalties, it has been the policy of the department to assess $15 per omitted entry. Therefore, the penalty amounts within the field citation program are consistent with the current enforcement policy. The department will review data generated from the program and periodically assess the need to increase penalty amounts to ensure compliance with the laws and regulations. Additionally, higher penalty amounts will still be available for those violations referred to the department's legal division. Comments opined that the current enforcement procedure involving higher administrative penalties, license revocation or suspension, injunctions, and/or stop-sale authority is a more effective means of ensuring compliance. However, such measures are rarely appropriate given the nature of the violation and the severity of the punishment. For example, if an egg operator has failed to renew his license, but is complying with all other regulatory requirements, issuance of a stop-sale order or obtaining an injunction could be considered excessive punishment for such an oversight. If assessment of an administrative penalty is the appropriate enforcement tool, the inspector may issue the penalty immediately rather than go through the longer process of referring the matter to the department's legal division. Comments reflected a concern that repeat offenders were not dealt with severely under sec.2.4(b). Again, if the field citation program is utilized and a licensee continues to violate the same provision of the statute, the matter may be referred immediately to the department's legal division. Additionally, guidelines will assist inspectors in employing the appropriate enforcement tool in responding to repeat violators. Section 2.4(b) represents the maximum limits by which the field citation program may be utilized. Inspectors always have the ability to refer a matter to the legal division if the circumstances merit such action. Under the current enforcement system, an inspector has discretion in determining when a matter should be referred to the department's legal division for enforcement action. Therefore, the field citation program is equivalent to the current procedures regarding repeat offenders . The new sections are adopted under the Texas Agriculture Code, sec.12.020 and sec.76.1555, which provide the Texas Department of Agriculture with the authority to seek and assess administrative penalties for violations of the Texas Agriculture Code, Chapters 13, 14, 61, 71, 75-76, 101-102, and 132; and Texas Government Code, sec.2001.004, which requires that the department adopt rules setting forth the nature and requirement of all formal and informal procedures available. sec.2.1. Purpose and Applicability. The Texas Department of Agriculture (the department) is authorized under the Texas Agriculture Code (the Code), sec.12.020 and sec.76.1555 to assess administrative penalties for certain violations of the Code. These rules are intended to provide procedures for issuance of citations by the department's field inspectors for certain minor violations for which administrative penalties may be assessed. These rules provide proposed administrative penalties that are applicable to certain minor violations of the Code, Chapters 75 and 76, and other departmental programs for which the department has authority to assess administrative penalties, including the weights and measures (the Code, Chapter 13), egg (the Code, Chapter 132), plant quality (the Code, Chapter 71), grain warehouse (the Code, Chapter 14), and agricultural protective act (the Code, Chapters 101-103) programs. In addition, in accordance with the provisions of the Code sec.76. 1555, the department published at (15 TexReg 6679), a penalty scheduled for violations of the Code, Chapters 75 and 76. The penalties amounts designated in sec.2.5 (relating to Assessment of Administrative Penalties) are to be assessed whenever the inspector issues a citation. However, penalty amounts for the same violation found in other penalty schedules will be assessed if the matter is referred to the department's legal division for enforcement action. Unless renewed by the department in accordance with Texas Government Code, Chapter 2001, this subchapter expires two years from its effective date. sec.2.3. Inspection. (a) Access. Department inspectors shall have access to businesses and premises for purposes of inspections required for issuance of a license or permit and/or for purposes of determining compliance with the Texas Agriculture Code. (b) Finding of violation. The department inspector shall conduct an inspection in accordance with the appropriate program procedures and document results of that inspection on the appropriate inspection report, attaching any supporting documentation. If a violation is found, the inspector shall issue either a warning or a citation. If a citation is issued, the inspector will assess the amount of the penalty in accordance with sec.2.5 of this title (relating to Assessment of Administrative Penalties). sec.2.4. Issuance of Warnings and Citations. (a) General violations. Except as provided in subsection (b) of this section, if a violation is or violations are found by a department inspector in the course of conducting an inspection, the person in control of the business or premises shall be issued a citation or, at the discretion of the inspector conducting the inspection, a written warning. The written warning shall advise such person that an alleged violation or violations have been found, that a reinspection will be made to ensure that corrective action has been taken unless the department can determine that such reinspection is not necessary, and that failure to take corrective action will result in the assessment of an administrative penalty by the department. If, on reinspection, the inspector determines that the alleged violation or violations have not been remedied, the inspector shall issue a citation to the person in control of the business or premises. (b) Repeat violators. (1) Repeat warnings. If a person has previously received a warning for a violation, upon the finding of the same violation for the second time a warning or citation may be issued. If the finding of the same violation for a second time occurs within the course of a reinspection, then the provisions of subsection (a) of this section apply. If a person has had two warnings issued by the department on the same violation within a two year period, the finding of the same violation for the third time shall result in the issuance of a citation. (2) Repeat citations. If a person has had one citation issued on a violation, the finding of the same violation for the second time within a two year period shall result in the issuance of a citation. The amount of the penalty on a second citation issued under this subsection shall be double the amount of the penalty provided for that violation in sec.2.5 of this title (relating to Assessment of Administrative Penalties). The finding of the same violation by a person for the third time shall result in the case being referred to the department's legal division for further action. (c) Content of citation. A citation issued under this section shall contain: (1) a brief summary of the alleged violation including a statement of facts which are the basis of the alleged violation; (2) the amount of the penalty recommended; and (3) a statement of the right of the person charged to a hearing on the occurrence of the violation or the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. (d) Request for hearing. Not later than the 20th day after the date on which a citation is received, a person charged may accept the department's determination and pay the recommended penalty or make a written request for a hearing. If no timely response to the citation is made by the person charged, the department shall set a hearing and give notice of the hearing. A hearing held under the provisions of this section shall be held in accordance with the Texas Agriculture Code, sec.12.020 and sec.76.1555; and Chapter 1 of this title (relating to General Practice and Procedure). sec.2.5. Assessment of Administrative Penalties. (a) Authority. In accordance with the Code, sec.12.020 and sec.76.1555, the department may assess administrative penalties for certain violations of the Code or rules adopted thereunder. A violation which may be remedied but is not upon reinspection constitutes a separate violation for purposes of penalty assessments. (b) Criteria considered. The department has considered the following criteria in setting the base penalties in subsection (c) of this section: (1) the seriousness of the violation, including but not limited to the nature, circumstances, extent, and gravity of the prohibited acts, and the hazard or potential hazard created to the health or safety of the public; and (2) the economic damage to property or the environment caused by the violation. (c) Penalty schedules. The following base penalties shall be assessed for the violations described. (1) Pesticide Programs: (A) failure to obtain a herbicide spray permit-$50; (B) dealer failing to maintain information on sales of state-limited-use and restricted-use pesticides-$50. (2) Regulatory Programs. (A) Weights and Measures. Failure to register devices-100% of the registration fee/device. (B) Plant Quality. (i) Operating without a registration certificate-$50 per location. (ii) Operating without a proper registration certificate-$50 per location. (C) Grain Warehouse. Failure to maintain complete or correct daily position reports-$50 per report. (D) Agricultural Protective Act (APA). (i) Operating without a license-$50. (ii) Operating without a proper license-$50. (E) Egg Quality. Operating without a license-$50. (3) Adjustments to penalties. Upon referral to the department's legal division, the department may make adjustments to the base penalties listed in paragraphs (1) and (2) of this subsection for any one of the following factors: (A) history of previous violations; (B) the amount necessary to deter future violations; (C) efforts to correct the violations; and (D) any other matter that justice may require. (4) Citations for more than $500. In the event that an inspector determines that the total penalty for a violation or violations found exceeds $500, the inspector shall not issue a citation. The documentation that serves as the basis for the violation or violations shall be forwarded to the department's enforcement program in Austin for further action. 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 21, 1994. TRD-9452716 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: March 1, 1995 Proposal publication date: June 21, 1994 For further information, please call: (512) 463-7583 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 327. Spill Prevention and Control 30 TAC sec.327.31 The Texas Natural Resource Conservation Commission adopts new sec.327.31, concerning natural resource damages for oil spills in coastal waters, with changes to the proposed text as published in the November 18, 1994, issue of the Texas Register (19 TexReg 9124). The new rule is adopted pursuant to the Oil Spill Prevention and Response Act (OSPRA), Texas Natural Resources Code, Chapter 40, which directs the state trustees (Texas Natural Resource Conservation Commission, Texas Parks and Wildlife, Texas General Land Office) to adopt administrative procedures and protocols for the assessment of natural resource damages as a result of an unauthorized discharge of oil to coastal waters. New sec.327.31 adopts by reference 31 TAC sec. sec.20.1-20.4, 20.10, 20. 20-20.23, 20.30-20.36, and 20.40-20.44, adopted by the General Land Office in the October 4, 1994, issue of the Texas Register (19 TexReg 7917). Senate Bill 1049 (SB 1049), (73rd Legislature, 1993) amending OSPRA, became law in June, 1993. This law instructed the Texas state trustees for natural resources to develop procedures and protocols through negotiated rulemaking with all other interested parties. Pursuant to Senate Bill 1049, a Negotiated Rulemaking Group (NRG) was established, to include the state trustees. In further pursuance, other interested parties invited to participate in the negotiated rulemaking were the Texas Waterways Operators Association, The Texas Mid-Continent Oil and Gas Association, the Galveston Bay Foundation, and the Galveston Bay National Estuary Program. The NRG held meetings from November 1993 through June of 1994, to achieve a consensus on the scope and content of the rules. Notice of the meetings was published in the Texas Register and all the NRG members had equivalent participation in the proceedings. The resulting rules were proposed and adopted as 31 TAC sec.sec.20. 1-20.4, 20.10, 20.20-20.23, 20.30-20.36, and 20.40-20.44 (19 TexReg 6525 and 19 TexReg 7917). TNRCC received no comments regarding the adoption of this rule; however, in the interests of clarity, the TNRCC has changed the citation in the new rule to explicitly identify the sections of Chapter 20 being adopted by reference, rather than refer only to the chapter. The new section is adopted under Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any regulation necessary to carry out its powers and duties under the Texas Water Code and other laws of this state; sec.26.264, which provides the Texas Natural Resource Conservation Commission with authority to issue rules necessary and convenient to carry out the purposes of Texas Water Code, Chapter 26, Subchapter G; and sec.26.039, which authorizes the Commission to issue reasonable rules establishing safety and preventive measures concerning activities that are inherently or potentially capable of causing or resulting in the accidental discharge of or spillage of waste or other substances and which pose serious or significant threats of pollution. sec.327.31. Natural Resource Damage Assessment for Oil Spills in Coastal Waters. Pursuant to a joint negotiated rulemaking mandated under Senate Bill 1049, 73rd Legislature, 1993, the Texas Natural Resource Conservation Commission incorporates by reference the provisions of 31 TAC sec.sec.20.1-20.4, 20.10, 20.20-20.23, 20.30-20.36, and 20.40-20.44, concerning Natural Resource Damage Assessment, as adopted by the Texas General Land Office, effective October 19, 1994. 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 21, 1994. TRD-9452728 Kevin McCalla Acting Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: January 11, 1995 Proposal publication date: November 18, 1994 For further information, please call: (512) 239-6087 TITLE 34. PUBLIC FINANCE Part III. Teacher Retirement System of Texas Chapter 23. Administrative Procedures 34 TAC sec.23.7, sec.23.8 The Teacher Retirement System of Texas (TRS) adopts new sec.23.7 and sec.23. 8. Section 23.7 is adopted with slight changes to the proposed text as published in the October 18, 1994, issue of the Texas Register (19 TexReg 8284). Section 23.8 is adopted without changes and will not be republished. Section 23.7 concerns the rules of standards of conduct for consultants and agents. The words "advisor to" were changed to "agent for" and the language restricting the application to those receiving $10,000 or more was removed. The Board defined agent to include advisor and chose to make the rule more inclusive than the law actually requires. Section 23.8 which is unchanged deals with the filing of reports by consultants and advisors on expenditures. Section 23.8 will not be republished as no changes were made. Chapter 812, Acts of the 73rd Legislature required the TRS Board of Trustees to adopt rules on standards of conduct and for filing of reports by consultants and advisors on expenditures. These rules bring TRS in compliance with that law. The changes in sec.23.7 recognizes the definition of agent to include advisor and expands the application of the rule to all agents. These changes were included in the Code of Ethics adopted by the Board of Trustees on September 9, 1994. The rules as adopted will require consultants and agents to comply with the Code of Ethics for Consultants and Agents adopted by the Board on September 9, 1994. It will also require consultants, advisors, and brokers to file a report of expenditures made on behalf of any one trustee or employee of TRS. No comments were received on the proposal. sec.23.7. Code of Ethics for Consultants and Agents. Any consultant or agent for the retirement system must comply with the system's Code of Ethics for Consultants and Agents as adopted on September 9, 1994. The Teacher Retirement System adopts by reference the Code of Ethics for Consultants and Agents as adopted on September 9, 1994. Copies of the Code of Ethics are available from the Teacher Retirement System at 1000 Red River, Austin, Texas 78701-2698, (512) 397-6400. 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 21, 1994. TRD-9452720 Wayne Blevins Executive Director Teacher Retirement System of Texas Effective date: January 11, 1995 Proposal publication date: October 18, 1994 For further information, please call: (512) 370-0506 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 85. Admission and Placement Placement Planning 37 TAC sec.85.25 The Texas Youth Commission (TYC) adopts an amendment to sec.85.25, concerning minimum length of stay, with changes to the proposed text as published in the November 4, 1994, issue of the Texas Register (19 TexReg 8755). The proposed text has been edited for clarification. The justification for amending the section is to reduce assaults on TYC staff. The amendment provides that youth who have not completed an established minimum length of stay and are reclassified as violent offenders for an assault on TYC staff and assigned a minimum length of stay, will complete the length of stay requirements consecutively, thus extending their time in the facility. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, sec.61.071, which provides the Texas Youth Commission with the authority to examine and make a study of each child committed to it according to rules established by the commission. The proposed rule implements the Human Resource Code, sec.61.034. sec.85.25. Title IV-E Foster Care Youth. (a) Policy. The Texas Youth Commission (TYC) has established two types of minimum lengths of stay (MLOS) requirements for TYC youth. The classification MLOS is established on initial commitment, for youth recommitted for the commission of a felony or high-risk offense, and for youth found at an administrative level I hearing to have committed a felony or high-risk offense. Required minimum lengths of stay may include creditable time prior to commitment. Youth may be eligible for transition to medium restriction to complete the minimum length of stay requirement in accordance with GOP.47.09, sec.85.29 of this title relating to Program Completion and Movement. A disciplinary MLOS may be established in accordance with GOP.63.11, sec.91.11 of this title relating to Disciplinary Transfer/Assigned Minimum Length of Stay Consequences and is subject to provisions herein. (b) Rules. (1) Classification Minimum Length of Stay. (A) Sentenced offenders serve the time assessed by the juvenile court. See GOP. 47.15, sec.85.35 of this title, relating to Sentenced Offender Disposition. (B) Type A violent offenders must complete a minimum of 24-48 months in TYC's maximum restriction program following the date of original disposition for the classifying offense. The minimum length of stay for each youth classified as a type A violent offender is established by the executive director following a recommendation from the superintendent of the maximum or high restriction placement. The superintendent shall submit the recommendation to the executive director within 90 days of the youth's admission to the placement. A minimum of longer than 24 months is based on the totality of the circumstances, including, but not limited to: (i) the seriousness of the offense; (ii) the circumstances surrounding the offense; (iii) whether the offense was committed in an aggressive, violent, premeditated or willful manner; (iv) the foreseeable consequences of the act; (v) the sophistication or maturity of the youth; (vi) the record and previous history of the youth; (vii) whether the youth acted with particular cruelty; and (viii) whether the offense involved a high degree of sophistication or planning by the youth. (C) If classified on or after March 25, 1994, all type B violent offenders must complete a minimum length of stay of 12 months in a medium, high or maximum restriction program following the date of original disposition for the classifying offense. (D) If classified before March 25, 1994, type B violent offenders must complete a minimum length of stay of 12 months if classified for conspiracy to commit murder or conspiracy to commit capital murder, solicitation of murder, or solicitation of capital murder, and complete nine months for any other designated offense. Youth are assigned to medium, high or maximum restriction program following the date of original disposition for the classifying offense. (E) Chronic serious offenders must complete a minimum length of stay of nine months in a medium or high restriction program if classified on or after March 25, 1994 or six months if classified before that date. (F) Controlled substances dealers must complete a minimum length of stay of nine months in a medium or high restriction program if classified on or after March 25, 1994 or six months if classified before that date. (G) Firearms offenders must complete a minimum length of stay of nine months in a medium or high restriction program if classified on or after March 25, 1994 or six months if classified before that date. (H) General offenders must complete a minimum length of stay of six months in a medium or high restriction program. (I) Violators of CINS probation are not assigned a minimum length of stay. (J) A disciplinary assigned length of stay of up to six months may be assigned in accordance with GOP.63.11, sec.91.11 of this title, relating to Disciplinary Transfer/Assigned Minimum Length of Stay Consequences. (K) All MLOS's will run consecutively. (2) Creditable Time. (A) For a youth, except a sentenced offender whose classifying offense was found at the most recent due process hearing: (i) Minimum length of stay is counted from the first day the youth reaches any TYC operated or assigned facility following commitment, recommitment or a disciplinary hearing. (ii) After the count begins, time spent on furlough or in detention or jail counts toward meeting a minimum length of stay requirement. (iii) Time spent as an escapee from a placement assigned by TYC does not count toward meeting the minimum length of stay requirement. (B) For a youth, except a sentenced offender whose classifying offense was found at an earlier due process hearing: (i) Minimum length of stay is counted from the date of original disposition for the classifying offense. (ii) Time spent as an escapee from a TYC or probation placement does not count toward meeting the minimum length of stay requirement. (C) In no case will creditable time reduce the minimum length of stay while in TYC to less than six months. (D) For a sentenced offender youth, see GOP.47.15, sec.85.35 of this title, relating to Sentenced Offender Disposition. (3) Waivers. For youth, except sentenced offenders and type A violent offenders, the classification minimum length of stay requirement may be reduced by the deputy executive director in extenuating circumstances when it is documented that the minimum length of stay is not justified because of the minor nature of the youth's classifying offense and offense history. 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 23, 1994. TRD-9452826 Steve Robinson Executive Director Texas Youth Commission Effective date: January 20, 1995 Proposal publication date: November 4, 1994 For further information, please call: (512) 483-5244 Due Process Hearings Procedures 37 TAC sec.91.33 The Texas Youth Commission (TYC) adopts an amendment to sec.91.33, concerning Level II hearing procedure, with changes to the proposed text as published in the November 4, 1994, issue of the Texas Register (19 TexReg 8757). The changes to the proposed text add two currently existing items to the list for which a Level II hearing is necessary. The justification for amending the section is to reduce assaults on TYC staff. The amendment will allow youth to be assigned a minimum length of stay and be transferred to another program as a consequence of assault on a TYC staff member. Currently only one or the other consequence may occur. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. The proposed rule implements the Human Resource Code, sec.61.034. sec.91.33. Level II Hearing Procedure. (a) Policy. The level II hearing procedure is appropriate due process in the following instances: (1) disciplinary transfer; (2) disciplinary extension in length of stay; (3) admission of youth in Giddings State School to intensive resocialization program; (4) admission to special management and treatment program for assaultive youth; and (5) movement to follow-up placement (if request by youth). (b) Rules. (1) The primary service worker shall call the institutional facility administrator or regional director to schedule the hearing as soon as practical but not later than seven days, excluding weekends and holidays, after the alleged violation. A delay of more than seven days in scheduling the hearing must be justified by documentation of circumstances which made it impossible, impractical, or inappropriate to schedule the hearing earlier. (2) The institutional facility administrator or regional director responsible for the program to which the youth is currently assigned appoints an impartial staff member to act as hearing manager. (3) The hearing manager shall be a Texas Youth Commission (TYC) staff member who is trained to function as a hearing manager and has not previously participated in a level II hearing for the youth. (A) If the youth is currently assigned to an institution, the hearing manager shall be someone not directly responsible for supervising the youth. (B) If the youth is currently assigned to a halfway house, the hearing manager shall not be a member of the halfway house staff. (C) If the youth is currently assigned to a contract program, the hearing manager shall not be the TYC case manager assigned to that program. (D) If the youth is currently assigned to his or her home, the hearing manager shall not be the parole officer assigned to the youth's case. (4) The youth's primary service worker shall be responsible for assembling all evidence and giving all notices required for the hearing. (5) The youth shall be given written notice of his rights not less than 24 hours prior to the hearing. The youth's rights are: (A) the right to remain silent; (B) the right to be assisted by an advocate at the hearing; (C) the right to confront and cross-examine adverse witnesses who testify at the hearing; (D) the right to contest adverse evidence admitted at the hearing; (E) the right to call readily available witnesses and present readily available evidence on his own behalf at the hearing; and (F) the right to appeal from the results of the hearing. (6) The youth and the youth's advocate shall be given written notice of the reasons for calling the hearing, the proposed action to be taken, and the evidence to be relied upon not less than 24 hours prior to the hearing. After receipt of the written notice and consultation with the advocate, the youth may waive the 24-hour notice period by agreeing, in writing, to an earlier hearing time. (7) Reasonable efforts shall be made to notify the youth's parent(s) of the time and place of the hearing not less than 24 hours prior to the hearing. (8) The hearing shall consist of two parts: fact-finding and disposition, and shall be held where the youth resides unless the hearing manager determines that some other site is more appropriate. (9) The youth shall be assisted by an informed and responsible advocate appointed by the hearing manager. Whenever practical, the advocate shall be a person chosen by the youth. (10) The hearing shall be tape recorded and the recording shall be the official record of the hearing. Tape recording shall be preserved for six months following the hearing. (11) The youth shall be present during the hearing unless he waives his presence or his behavior prevents the hearing from proceeding in an orderly and expeditious fashion. (A) A waiver of the youth's presence shall be in writing and signed by the youth and his advocate. (B) If the youth waives his presence, the hearing may be conducted by teleconference. (C) If a youth is excluded for behavioral reasons, those reasons shall be documented in the hearing record. (12) All credible evidence may be considered, irrespective of its form. (13) A victim who appears as a witness should be provided a waiting area where he is not likely to come in contact with the youth except during the hearing. (14) Witnesses need not take an oath prior to testifying. (15) The hearing manager, primary service worker, and advocate may question each witness in turn. The primary service worker and advocate may offer summation statements. (16) The standard of proof for all disputed issues is a preponderance of the evidence. Preponderance of the evidence means whether the credible evidence makes it more likely than not that a particular proposition is true. (17) After announcing his findings of fact, the hearing manager shall proceed to disposition to determine whether the action proposed by staff is appropriate under TYC policy. (A) A hearing manager'ssdecision that a youth be transferred is final. (B) A hearing manager's decision to assign a minimum length of stay (with or without a transfer) is final subject to approval by the executive director or designee. If, subsequent to the assignment of a minimum length of stay, the executive director disapproves the assignment, neither the assignment nor a transfer may then occur. (18) The hearing manager shall prepare the Hearing Manager's Report of a Level II Hearing, CCF-170 of his findings which includes grounds for the hearing and evidence relied upon and the decision. (19) The youth is informed of his/her right to appeal to the executive director. The pendency of an appeal shall not preclude implementation of the hearing manager's dispositional decision. (20) A copy of the report (CCF-170), is given to the youth immediately following the close of the hearing. (21) A copy of the report is placed in the masterfile only if the reasons for the hearing are found, i.e., it is proven that the youth violated the rules. If the reasons for the hearing are not found, all references to the disciplinary action are removed from the youth's masterfile. (22) The hearing manager's report is reviewed by the institutional superintendent or regional director, as are all disciplinary reports, to assure consistency in the application of policy. (23) Copies of all Hearing Manager's Report of a Level II Hearing, CCF-170 are maintained by the institutional superintendent and regional director. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 23, 1994. TRD-9452827 Steve Robinson Executive Director Texas Youth Commission Effective date: January 20, 1995 Proposal publication date: November 4, 1994 For further information, please call: (512) 483-5244 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part IX. Texas Department on Aging Chapter 254. Operation of the Texas Department on Aging 40 TAC sec.254.1 The Texas Department on Aging adopts an amendment to sec.254.1, concerning the publication of charges for copies of public records held by the Department and interagency agreements, respectively, without changes to the proposed text contained in the September 9, 1994, issue of the Texas Register (19 TexReg 7066). The amendment was published to comply with House Bill 1009 and to provide a basis for compliance with interagency agreements negotiated between the Department and other State agencies to facilitate delivery of services. The amendment will function to advise entities of the charges that will be assessed when the Department fulfills requests for copies of documents and to establish a process for concerned persons and agencies to comment upon interagency agreements negotiated by the Department with other State agencies. No comments were received regarding adoption of the amendment. The amendment is adopted under Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on December 22, 1994. TRD-9452729 Mary Sapp Executive Director Texas Department on Aging Effective date: January 12, 1995 Proposal publication date: September 9, 1994 For further information, please call: (512) 444-2727 40 TAC sec.sec.254.15, 254.17, 254.19, 254.21, 254.23, 254. 25 The Texas Department on Aging adopts new sec.sec.254.15, 254.17, 254.19, 254. 21, 254.23, and sec.254.25, concerning hearing procedures for area agency grantees, hearing procedures for service providers and applicants, hearing procedures for participants in Older Americans Act programs, Americans With Disabilities Act grievance procedures for participants in Title III OAA programs, emergency management responsibilities of the Department, and Department responsibilities for carryover of unexpended funds, with changes to the proposed text contained in the September 9, 1994, issue of the Texas Register (19 TexReg 7067). The rules will function to clarify Department responsibilities and to restructure that portion of the Texas Administrative Code which contain the rules of the Texas Department on Aging. A number of comments were received on the rules. In sec.254.15(a) suggestions were made by commenters to restructure this subparagraph to clarify its intent. The Department has altered this paragraph accordingly. One commenter asked how "substantial failure" was defined. The Department responds that substantial failure is defined as failure to comply with any of the provisions cited for compliance in the Department's rules. One commenter stated that the federal act does not require that the burden of proof be with the subgrantee. Consequently, the Department eliminated "burden of proof" and "material" and substituted "opportunity" and "valid" as more acceptable wording in subsection (b)(1)(D). In response to a suggestion to establish time limitations on submissions of requests for hearings, the Department added a subparagraph (d) Time Limitation, in the body of this rule and altered alphabetical designation of the rules following this addition. In sec.254.17, a suggestion was made to change the title of this rule to "Appeal" Procedures for Service Providers and Applicants to supplant "Hearing" both in title and text. The Department concurs with this recommendation and made those changes. In subsection (b), notice of appeal, it was suggested that a 30 day limit be established to replace the ten day limit. The Department concurs and has altered the text accordingly. A suggestion was made to rewrite subsection (c) to provide for both a formal and informal process for appeal. The Department did not concur, the rational being that informal measures are always taken to settle issues prior to the issuance of a notice of action by the Department. The Department staff and rules committee also made some recommendations which resulted in amendments to words in subsection (e)(2)(D) and (E). In sec.254.19, a suggestion was made to change "appeal" to "grievance" as the more suitable word for this process. The Department concurs and has altered the rule in its entirety to reflect this change. In sec.254.21, a major rewrite of this rule occurred to improve the process for submission of grievances under the Americans with Disabilities Act. Minor changes were made in sec.254.23 to promote readability. In sec.254.25, a number of minor changes to wording were made based on recommendations received during the 30 day comment period and the public hearing. One commenter suggested a change to the title of this rule to add greater specificity to the process. The Department concurred and has altered the text accordingly. In subsection (b), a commenter suggested insertion of "funds" in the sentence of the text and this word was inserted. A commenter asked "what exactly is an acceptable narrative" (in regard to carryover narratives). The Department replies that an "acceptable narrative" is one that, after review by the fiscal and programmatic staff, is found to adequately document the reasons funds were identified as carryover and provides specific justification for their use, if the area agency is approved for participation in the carryover pool. In subsection (b)(2), a commenter questioned that portion referring to funds identified "separately for each title of the Older Americans Act" and asked if this phrase meant "separately for each title of the Older Americans, Title III, or does this mean Title III B verses Title III C." The Department replies "not necessarily." Subsection (a) notes that this section deals with "funds awarded by the Department." "Title" refers to the funding grant. Title III, Title VII, B and C are categories within a title." The language in subsection (c) caused a commenter to question the intent of this language. The Department agreed that this paragraph could be better constructed and has amended the language accordingly. In subsection (c)(1)(C) (i)-(iv), a commenter asked why the percentages depicted did not correspond to those given in sec.260.15(c)(3)(A-D). These percentages relate to the amount of funds that must be expended and relate to other funds. The percentages in sec.260.15 indicate the amount of funds that may be considered for carryover and relate only to Title III funds. In sec.260.1(i)(3)(B), a commenter suggested that the Department should consider this reference to "Access" and Assistance noting that this change would promote the concept of the area agency network as the access point for elderly. The Department takes note of this recommendation and will consider it for future revisions. Comments were received from the Texas Association of Regional Councils and the Operations Committee and staff of the Texas Department on Aging. The new sections are adopted under Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. sec.254.15. Hearing Procedures for Area Agencies on Aging Grantees. (a) Right to a Hearing. A grantee area agency has a right to a hearing under these rules upon official notification by the Department. (1) Notification by the Department shall show it intention to: (A) disapprove an area plan or plan amendment; or (B) withdraw an area agency designation, in accordance with sec.254.13(d) of this title (relating to Dedesignation), after a determination that: (i) the area agency does not meet the requirements set forth in 45 Consolidated Federal Regulation (CFR) Part 1321; (ii) the plan or plan amendment is not approved; (iii) there is substantial failure in the provisions of administration of an approved area plan to comply with any provision of 45 CFR Part 1321 and or sec.254.13(b) of this title (relating to Contractor/Grantee Responsibilities). (C) recover costs as a result of a finding of disallowed costs during an authorized audit by the Department or as may be determined during the course of routine fiscal reviews of the expenditures of grantee agencies. (2) A hearing may cover one or more actions described in this subsection, paragraph (1), (relating to Reasons for Hearings). (b) Notice of Proposed Action by the Texas Department on Aging. (1) The Department shall issue a written notice to the area agency and all other parties which shall include: (A) a statement of the proposed action; (B) a short and plain statement of the reasons for the proposed action and the evidence on which the proposed action is based; (C) a reference to the particular sections of statutes, regulations and rules involved; (D) a statement that the grantee has the opportunity to establish that the findings cited by the Department in the official notification of proposed action are not valid; and (E) a notice of the right to request a hearing. (2) Notice shall be sent by registered or certified mail, return receipt requested. (c) Request for Hearing. A request for a hearing must be in writing and must state with specificity the grounds upon which the proposed action is appealed and all grounds upon which petitioner refutes the basis of the proposed action. The request must include: (1) the dates of all relevant actions; (2) the names of individuals or organizations involved in the proposed action; (3) specific statements and documentation which disprove the findings made by the Department, and/or that the sections of the Older Americans Act, state law or any rules or regulations cited in the letter of notification have not been violated; and (4) a certified copy of the minutes or resolution in which the petitioner's governing body requests a hearing and authorizes a person or persons to act on behalf of the agency or organization. The minutes or resolution shall indicate adoption by a majority of the quorum of the governing body of the agency or organization; (d) Time Limitations. A request for a hearing shall be received by the Department within 30 calendar days following petitioner's receipt of the notice of the proposed action; (e) Additional Submissions. The petitioner may submit written amendments to the request for hearing which must be received by the Department not less than ten calendar days prior to the date set for the hearing. (f) Department Responses to Requests. Upon receipt of a request for hearing, the Department shall, within ten calendar days following receipt of a request for hearing: (1) set a date for the hearing; and (2) issue a written notice to the petitioner and all other parties by registered or certified mail, return receipt requested, which shall provide: (A) a statement of time, date, and location of the hearing; (B) a statement of the legal authority and jurisdiction under which the hearing is to be held; (C) a reference to the particular sections of statutes, regulations, and rules involved; and (D) a summary of the reasons for the proposed action that is being appealed and the evidence on which the proposed action is based. (g) Conduct of Hearing. The Department shall arrange for an impartial hearing examiner to preside at the hearing. The proceedings and conduct of the hearing shall follow the rules promulgated in Title 1, Part VII, State Office of Administrative Hearings, Chapter 155, Rules of Procedure, et seq. The hearing examiner shall issue a decision on behalf of the Department. (h) Appeal to the Assistant Secretary on Aging, United States Department of Health and Human Services. Any petitioner whose appeal is denied may appeal to the Assistant Secretary on Aging. Such appeal shall be governed by 45 CFR Part 1321. sec.254.17. Appeal Procedures for Service Providers and Applicants. (a) Right to An Appeal: Any service provider or applicant has a right to appeal an action by an area agency that: (1) denies their application under an approved area plan; (2) terminates or does not renew a contract or subgrant; (3) issues a notice of noncompliance with federal and state requirements; (4) issues a notice of action to recover disallowed and/or questioned costs; and/or (5) issues a notice of noncompliance with contract stipulations mutually agreed upon by the area agency and the subcontractor. (b) Notice of Appeal. A petitioner shall give notice of an appeal to both the area agency and the Department within 30 calendar days from the date it receives the letter of notification of the area agency's action. The notice of appeal shall be in writing and must state with specificity the grounds upon which the action by the area agency is appealed. Specific areas shall include, at a minimum; (1) the grounds upon which the petitioner refutes the basis of the action or the authority of the area agency to take such action; (2) a copy of the agency's letter of notification of action from the area agency; (3) the names of individuals and organizations involved in the action appealed from; (4) a certified copy of the resolution or of the minutes of the meeting where the petitioner's governing body, by majority vote of a quorum, authorized the appeal and designated one or more persons to represent it during the appeal. (c) Informal disposition. (1) Upon receipt of a notice of appeal, the area agency and petitioner shall immediately schedule a meeting to attempt to informally resolve the issues in the appeal within 30 calendar days of receipt of the appeal from the appellant. (2) If the area agency and petitioner resolve their dispute, they shall jointly notify the Department of this fact in writing within five work days following resolution of the dispute. (3) If the dispute cannot be resolved informally, the area agency and the petitioner shall notify the Department of this fact in writing within ten working days following the end of the informal resolution period, by certified or registered mail return receipt requested. (4) The area agency and the petitioner shall establish a formal hearing date at least five working days after the petitioner receives the notice for a formal hearing. (5) the area agency shall furnish petitioner within ten working days of the established date for the formal hearing, the following documentation: (A) the current approved area plan; (B) the minutes of the meeting of the area agency's governing body at which the appeal was considered and action taken; (C) the minutes of the meeting of the area agency's advisory council at which the appeal was considered and action recommended; (D) area agency memoranda, staff reports, and evaluations relevant to the action; (E) the criteria used in awarding the contract; (F) the criteria used in determining that an action was necessary, and (G) a concise statement identifying each disputed issue. (d) Formal hearing. If the area agency and the petitioner do not formally resolve their dispute the matter shall be referred to the Texas Department on Aging for conduct of a formal hearing. The request for hearing shall be signed by the executive officer of the grantee agency and be accompanied by the documents specified in subsection (c)(5)(B)-(G) of this section (relating to Documentation). (e) Notice of Proposed Action by the Texas Department on Aging. (1) Upon receipt of a request for hearing, the Department shall, within ten calendar days, set a date for the hearing. (2) The Department shall, within five workdays following the establishment of the hearing date, issue a written notice to the area agency, the petitioner, and all other parties which shall include: (A) a statement of time, date, and location of the hearing; (B) a statement of the legal authority and jurisdiction under which the hearing is to be held; (C) a reference to the particular sections of statutes, regulations, and rules involved; and (D) a summary of the reasons for the proposed action that is being appealed and the evidence on which the proposed action is based. (E) a statement that the grantee has the opportunity to establish that the findings cited by the Department in the official notification of proposed action are not valid. (F) Notice shall be sent by registered or certified mail, return receipt requested. (f) Conduct of Hearing. The proceedings and conduct of the hearing shall follow the rules promulgated in Title 1, Part VII, State Office of Administrative Hearings, Chapter 155, Rules of Procedure, et seq. The hearing examiner shall issue a decision on behalf of the Department. sec.254.19. Grievance Procedures for Participants in Older Americans Act Programs. (a) Right to Submit a Grievance. Participants in Older Americans Act Programs may submit grievances regarding specific actions or activities affecting their personal participation in the program or the conduct of the program as it relates to all participants at that site or location. (1) Grievances may be in writing or may be made orally. (2) A grievance may be presented by an individual on behalf of the participant. If the participant elects this option, he or she shall accompany that spokesperson to every meeting at which the appeal is discussed. (3) A grievance should be resolved at the lowest level of authority to avoid undue paperwork or loss of time. Grievances shall be directed as indicated to the following authorities in the order indicated. (A) site director; (B) project director; (C) area agency on aging director; (D) grantee director; (E) executive director of the Texas Department on Aging. (4) Grievances may be made at any time. The site manager, however, should be advised within ten days of the event which created the basis for the grievance of the intent to appeal. (b) Grievance procedures. (1) An oral grievance must state in detail the basis for the appeal and the reasons the participant objects to the action or circumstances in question. To facilitate this statement, a written outline should be prepared for the oral grievance which outlines the reasons for the grievance. This outline should contain or refer to the following: (A) the notice, document, policy or situation upon which a grievance is being made; (B) the dates that are significant which pertain to the grievance; (C) the names of individuals and organizations involved in the grievance; (D) a reference to any provision of the Older Americans Act or regulations believed to have been violated by site management, grantee, area agency or the Department. (2) a written grievance may also be made. A written grievance must contain all the elements specified for the oral grievance, as stated in paragraph (1) of this subsection. (c) Disposition of Grievances. (1) If the facts support the grievance, the site manager or service provider director shall, within 30 working days of the receipt of the written grievance, make the changes necessary to resolve the issue. (2) If the site manager's or service provider's director's decision is not acceptable to the participant, the participant may, within ten working days, appeal to the next higher authority as specified in subsection (a)(3) of this section (relating to Resolving Issues at the Lowest Possible Level of Authority). The site manager or service provider director, and each level of authority at which the grievance has been unresolved, shall within ten working days following receipt of a request for continuing grievance action, develop a memorandum detailing the circumstances of the grievance, attach all pertinent documentation regarding the findings and actions taken at that level of authority, and forward it to the next level with a request for a meeting of the parties concerned with the issue. (3) If the grievance is resolved, parties to the grievance shall jointly notify each level of authority involved in the grievance of this fact in writing. (d) Referral to the Texas Department on Aging. If the grievance cannot be informally or formally resolved and it becomes necessary to refer it to the Texas Department on Aging. The Executive Director shall issue a decision on behalf of the Department. (e) Rights of Appellant. A copy of this rule will be made available to participants in Older Americans Act programs. sec.254.21. Americans with Disabilities Act (ADA) Grievance Procedures for Participants in Older Americans Act Programs. (a) Scope. These procedures apply to all programs funded by the Department. A copy of the procedures for each level of authority shall be provided to each participant in these programs within 30 calendar days following final adoption of this rule or thereafter upon completion of intake information of a new person. (1) Use of this grievance procedure is not a prerequisite to the pursuit of other remedies available to the complainant under ADA. (2) This section shall protect the substantive rights of interested persons to meet appropriate due process standards and assure that the Department, its grantees and their subrecipients comply with the ADA and implementing regulations. (3) This section shall apply after reasonable requests for accommodation have been made and have not been accomplished to the satisfaction of the complainant. (b) Standard Complaint Procedures. (1) A complaint under this section may begin with any level of authority and may progress to the next level of authority. (2) The Department and each grantee and subrecipient service provider shall identify its ADA coordinator and post the name, address, and phone number of the coordinator in a prominent place in all facilities which they operate. (3) A complaint should be filed in writing or verbally with the agency's ADA coordinator. However, each agency's written complaint procedures shall provide that the complaint: (A) be documented in writing by the ADA Coordinator; (B) contain the name and address of the person filing it, the facility address, the date of the alleged violation, a brief description of the alleged violation, the date of the report; and (C) bear the signatures of the complainant and the ADA coordinator. (4) The ADA coordinator shall conduct an investigation within 30 calendar days of the receipt of the complaint. (5) The ADA coordinator shall work with the complainant in an attempt to reach a solution acceptable to both parties in order to allow participation in services, programs, and/or activities. Every effort shall be made to resolve this complaint at the first level of authority at which the complaint was filed. (6) The ADA coordinator shall send a copy of the complaint and a report outlining the attempts to resolve the complaint and the final result to the chief executive officers of the grantee and the Department within ten working days of the completion of the investigation. (7) the complaint procedures shall identify the next level of authority in the appeals process. (c) Department Complaint Procedures. If the area agency ADA coordinator and the complainant cannot reach an adequate and equitable solution, the complainant may file a written or verbal complaint with the ADA coordinator at the Texas Department on Aging, P.O. Box 12786, Austin, Texas 78711, (512) 444-2727. This complaint shall be documented by the ADA coordinator in writing and shall contain the information required in subsection (b)(3) of this section. (1) An investigation, as may be appropriate, shall be conducted by the Department's ADA coordinator within 30 calendar days after receipt of the complaint. Any investigations shall afford all interested persons and their representatives, if any, an opportunity to submit evidence relevant to a complaint. (2) The Department's ADA coordinator shall work with the area agency on aging's ADA coordinator and the complainant in an attempt to reach a solution acceptable to both parties in order to allow participation in services, programs, and/or activities. (3) A written determination as to the validity of the complaint and a description of the resolution, if any, shall be recommended by the Department's ADA coordinator, and issued by the executive director, and a copy forwarded to the complainant and the chief executive officers of the service provider agency, the grantee/area agency and the Department no later than ten working days after the investigation is completed. (4) In the event the complainant is dissatisfied with the determination made by the Department, a reconsideration by the grievance committee, as appointed by the Chairman of the Texas Board on Aging may be requested. This request may be filed orally but shall be documented in writing and shall include information as cited in subsection (b)(3) of this section. (5) The grievance committee of the Board shall hold a hearing within 30 calendar days of the receipt of the written complaint and shall afford all interested persons and their representatives, if any, an opportunity to submit evidence relevant to a complaint. (6) The Texas Board on Aging shall be notified in writing of the recommendation of the grievance committee and copies shall be sent to the complainant, the chief executive officers of the service providers, the grantee/area agency on aging and the Department. (7) The Board shall take action on the grievance committee's recommendation at it's next scheduled meeting. The decision of the Board shall be forwarded to the parties identified in subsection (c)(6) of this section (relating to Who Shall Receive Copies of Complaints). (d) Records Maintenance. The ADA Coordinator and the Risk Manager of the Department and the grantee agency shall maintain files and records relating to all complaints filed. These files shall be maintained for a minimum of five years following the end of the grantee's fiscal year, and until any pending litigation, claim or audit findings, issuance of proposed disallowed costs, or other disputes have been resolved. sec.254.23. Emergency Management Responsibilities of the Texas Department on Aging. The Department shall consult with the Office of Emergency Management, Department of Public Safety, the Federal Emergency Management Agency (FEMA), the Administration on Aging, grantees, area agencies on aging, other state, county and local government entities, service providers and other activities which have an interest in or role in meeting the needs of the elderly in planning for, during, and after natural, civil defense, and/or man-made disasters. To facilitate this responsibility, the Department shall identify an individual as the Emergency Management specialist for the Department who shall: (1) represent the Department at meetings and functions pertinent to emergency management and communicate and coordinate with representatives of other agencies and activities concerned with emergency management; (2) develop all reports resulting from disaster recovery operations; (3) develop procedures for reimbursement of Title III funds for use by area agencies on aging in disaster recovery operations, including the acquisition of certificates of non-duplication of services from the FEMA on-site director, review such requests for accuracy and validity, and forward these requests to the Administration on Aging for payment. (4) provide technical assistance to area agencies engaged in planning for services to the elderly prior to disasters and following any natural, man-made or civil defense disaster which impacts the elderly within their PSA; and (5) assist area agencies in disaster recovery operations. sec.254.25. Department Responsibilities for Carryover of Unexpended Department Awarded Funds. (a) Purpose. This section establishes the responsibilities of the Department for administering the carryover of unexpended funds by the grantee agency and applies to all funds awarded by the Department. (b) Approval of Carryover of Older Americans Act Funds. It is the position of the Department that unexpended grant funds shall be kept to a minimum. Approval for carryover of any Older Americans Act funds issued by the Department shall require adequate justification and shall not exceed 5.0% of the grant funds awarded during the grant period. (1) Approval shall be based upon timely submission of adequate justification, as defined in sec.260.2(e) of this title (relating to Area Agency Accountability) and include, but not be limited to, submission of acceptable narrative and financial information as required by the Department. (2) Approval shall be considered separately for each title of the Older Americans Act and each grant awarded through a funding formula from all other funding sources. (3) No agency shall be automatically guaranteed any award of unexpended carryover funds. (4) The format for requests for carryover approval shall be prescribed each year by the Department. (5) Approval shall be granted for carryover of Older Americans Act funds and any other funds issued by the Department when obligation authority from the funding sources permits. (c) Approval of Carryover of Other Funds. It is the policy of the Department to approve funds awarded by the Department, other than Older Americans Act funds, as carryover with adequate justification. (1) Approval shall be based upon timely submission of adequate justification. The grantee shall: (A) submit acceptable narrative and financial information as required by the Department; (B) have met the preponderance of the program objectives defined by the Department and described by the grantee in the current approved area plan, or approved proposal for those funds awarded through a request for proposal (RFP) process; (C) have expended not less than: (i) 90% of the awarded funds, if awarded during the first quarter of the grant period; or (ii) 70% of the awarded funds, if awarded during the second quarter of the grant period; or (iii) 50% of the awarded funds, if awarded during the third quarter of the grant period; or (iv) 30% of the awarded funds, if awarded during the fourth quarter of the grant period. (2) Approval shall be based upon the criteria in subsection (b)(2)-(5) of this section (relating to Criteria for Approval of Carryover Funds). (d) Funds ineligible for carryover. The Department shall not approve the following for carryover: (1) disallowed costs; (2) unexpended adequate proportion funds for eligible in-home services, access services, and legal services, unless the grantee has received a waiver from the requirements in accordance with Department procedures; and/or (3) unexpended funds to meet maintenance of effort requirements for Ombudsman activities as contained in the currently approved area plan. (e) Carryover Reallocation Pools. The Department shall: (1) establish separate reallocation pools of unexpended funds from each of the following sources: (A) Title III of the Older Americans Act; (B) Title VII-Elderabuse Prevention of the Older Americans Act; and (C) any other funds issued by the Department through a separate funding formula and not approved for carryover. Funds from each funding source shall become part of a separate reallocation pool. (2) award carryover funds in the same manner as the original funds were awarded, exclusive of consideration from any applicable service and administration bases. Any grantee agency not meeting all the performance measures and financial standards shall not participate in the distribution of funds in the reallocation pools; (3) award carryover funds in accordance with Human Resources Code, sec.101.030(d) (relating to Funding for Area Agencies on Aging). (f) Notification of Grant Award. A notification of grant award for any and all reallocated funds shall be issued by the Department not later than 60 calendar days following the end of the 90 day closeout period. Such notices of grant award shall authorize the use of funds for the specific period of time for which the award is issued. 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 22, 1994. TRD-9452730 Mary Sapp Executive Director Texas Department on Aging Effective date: January 12, 1995 Proposal publication date: September 9, 1994 For further information, please call: (512) 444-2727 Chapter 255. State Delivery Systems 40 TAC sec.sec.255.35-255.38 The Texas Department on Aging adopts the repeal of sec. sec.255.35-255.38, concerning area agency responsibilities, organization and staffing of area agencies, area agency activities, policies and procedures for approval of direct services applications by area agencies, program development, and contract and reimbursement methodology for area agencies, without changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6895). Adoption of these repeals are necessary to continue development of the revised rules of the Texas Department on Aging and assure that no conflicting rules are in existence. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on December 22, 1994. TRD-9452732 Mary Sapp Executive Director Texas Department on Aging Effective date: January 12, 1995 Proposal publication date: September 2, 1994 For further information, please call: (512) 444-2727 Chapter 257. Hearing Procedures for Area Agencies on Aging 40 TAC sec.sec.257.11-257.23 The Texas Department on Aging adopts the repeal of sec. sec.257.11-257.23, concerning hearing procedures for area agencies on aging, without changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6896). Adoption of these repeals are necessary to the continuing development of the revised rules of the Texas Department on Aging and assures that no conflicting rules are in existence. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on December 22, 1994. TRD-9452733 Mary Sapp Executive Director Texas Department on Aging Effective date: January 12, 1995 Proposal publication date: September 2, 1994 For further information, please call: (512) 444-2727 Chapter 257. Hearing Procedures for Service Providers and Applicants 40 TAC sec.sec.257.71-257.76, 257.78, 257.79 The Texas Department on Aging adopts the repeal of sec. sec.257.71-257.76, 257. 78, and 257.79, concerning hearing provisions for service providers and applicants as these sections are no longer applicable to the operations of the Department, without changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6896). Adoption of these repeals are necessary to the continuing development of the revised rules of the Texas Department on Aging and assures that no conflicting rules are in existence. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on December 22, 1994. TRD-9452734 Mary Sapp Executive Director Texas Department on Aging Effective date: January 12, 1995 Proposal publication date: September 2, 1994 For further information, please call: (512) 444-2727 Chapter 260. Area Agency on Aging Administrative Requirements 40 TAC sec.260.1 The Texas Department on Aging adopts an amendment to sec.260.1, concerning uniform logos for area agencies on aging, uniform telephone listings, listing of the Texas Department on Aging as the primary funding source by area agencies on aging, compliance with interagency agreements at the local level of agreements negotiated by the Department at the State level, and emergency management requirements of area agencies on aging, without changes to the proposed text as published in the September 9, 1994, issue of the Texas Register (19 TexReg 7072). The purpose of the amendment is to revise and relocate previously published language into a new structure of the administration code developed by the Department. The amendment will provide guidance to area agencies on identifying their facilities, enhancing access to their services, promoting coordination with other service providers, and implementing emergency management processes in their planning and service area. No comments were received regarding adoption of the amendment. The amendment is adopted under Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on December 22, 1994. TRD-9452731 Mary Sapp Executive Director Texas Department on Aging Effective date: January 12, 1995 Proposal publication date: September 9, 1994 For further information, please call: (512) 444-2727 40 TAC sec.260.2 The Texas Department on Aging adopts new sec.260.2, relating to area agency on aging fiscal responsibilities, with changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6896). The purpose of the rule is to relocate previous rules to a new section of the Texas Administrative Code and to clarify language and procedures by which area agencies meet the fiscal responsibilities established by Federal and State requirements (F.S.R.). The rule will function to clarify area agency on aging fiscal requirements and promote a uniform and consistent application of these requirements state-wide. A number of comments were received regarding adoption of the new rule. In sec.260.2(a)(1) regarding maintenance of records, a commenter stated the rule should clarify where records should be kept, what records should be kept, and be consistent with current federal guidelines. The Department concurs and has revised subsection (a)(1)(B) to clarify that the wording related to records being kept at the area agency site refers to AAA records only and has amended the language to reflect area agency shall require that subrecipient service providers adhere to subsection (a)(1)(A) and (B) of this section as applicable, for proper maintenance of records. It is not required that subrecipient service provider's records be kept at the area agency site. Regarding the retention rate, it is for 3 years following the submission of the final FSR to the federal government. This occurs 18 months following the end of the grant period. Therefore, retention is for not less than 4 1/2 years. With concurrence of the SAO, this was moved to 5 years to be consistent with the grant years. In (a)(2)(A), two commenters questioned the wording regarding access to and right to all records related to this contract of this paragraph and posed a question regarding the use of the phrase "any of them" as it relates to records retention. The Department responds that the second section of (a)(2)(A) intent is to specifically cover some areas which have been challenged in the past by some AAAs, even though the phrase cited was the same and that "or any of them" refers to all or any other appropriate records in existence. Language has been added to make this more clear. In (a)(2)(B), relating to recapture of payments, a commenter stated that recapture of payments should occur only after affording some process of formal determination to disallow costs and after an opportunity for review or appeal. The Department responds that this paragraph does not circumvent the right to an appeal. The paragraph will remain in the section where it is located as no other section appears more appropriate for its placement. One commenter noted that (a)(4)(C)(i) and (ii) appears to duplicate (a)(4)(A) and (B). The Department concurs and has eliminated the duplication. In (A)(5)(B) and (C), regarding disallowed costs, a commenter stated that the language was extremely confusing regarding monitoring, audits, questioned costs and sanctions. The Department concurs and has altered the language to eliminate the confusion based on suggested wording of the commenter. In (A)(5)(E), relating to recapture of funds from an area agency, a commenter asked if this language meant that an area agency could not participate in any carryover allocation. The Department responds that the intent of this paragraph is to deny reallocation of portions of funds originally awarded to that area agency that were disallowed through administrative processes. In (b)(2), a commenter suggested that this paragraph should be amended to read "audits shall be conducted in accordance with the single audit guide." The Department responds that there are other applicable circulars when audits are conducted. The audit guide details all of the requirements that must be met when an audit is completed. In (b)(4), a commenter states that current regulations require that audits be submitted within 180 days of the end of the fiscal year. What is the time frame now? More importantly, without audits for vendors being required, there will be a strong incentive for all AAAs to eliminate the use of the RFP/contracting methodology. The Department responds that OMB Circular A-128 states that audits must be submitted 30 days following completion but not later than one year following the audited period. OMB Circular A-133 allows thirteen months for submission of the audit following the audited period. Both Federal circulars deal with subrecipients. Vendors are not acting in the capacity of a subrecipient and cannot be held to that requirement. In (c), relating to debarment and suspension, a commenter suggested that the order of (2) and (3) be reversed to reflect the sequence of events. The Department concurs and has made that change. In (d)(1)(F), regarding direct purchase of services, a commenter states that "When an area agency provides services through Case Management and budgets resources under the DPS pool, DPS funds should be expended to assure compliance with adequate proportion as prescribed by the Department and this removes need for further language in this regard. The Department responds that the requirement must cover adequate proportion, maintenance of effort, and match requirements. When DPS funds are under a specific service this intent notice will not be required. No change in the language is necessary. In (d)(2), relating to submission of budget amendments, a commenter stated that one of the difficulties with this is the amount of time it is currently taking to get amended budget approved. A specified amount of time for approval would help in planning for proposed services. Lessening the amount of time for approval would also allow more time for funds to be expended within the allowed time and therefore for carryover requirements to be met. The Department responds that this section deals only with specific situations when budget approval is required prior to expending funds. In most cases, expenditures can occur with an operating budget, even prior to approval. A commenters states that there are several times the words "service provider" throughout the rule and asks if this refers to subcontractors or to vendors and suggests that each time the term is used to ensure clarity. The Department agrees and offers this clarification. If the phrase "service provider" is used, it refers to both subrecipient and vendor service providers. If it is only one or the other, it will be preceded with the correct identifier. In (e)(A) -(D), a commenter states that it appears that only by fulfilling 100% of Department performance requirements will an AAA be eligible to participate in the carryover funding and the carryover reallocation pool and recommends that there should be an allowable range of perhaps 90-100% compliance relating to area agency performance requirements in order to compensate for human error or miscalculations. During this time of increasing demand for services to the elderly, it is not anyone's intention to deny access to funds for what could very well be a simple miscalculation, typo, or misunderstanding. What is to be prevented is repeated, sloppy performance and repeated disregard for deadlines. The Department disagrees with the recommendation. The Board of the Texas Department on Aging previously requested and supported these requirements and it is the intent of the Department to promote superior performance by establishing penalties for sub-standard performance. Another commenter stated that this paragraph implies sanctions for non-performance, but is ambiguous. We believe it is unnecessary, in light of other provisions found in these regulations. The Department concurs. This paragraph duplicates part of (e)(2) and has been deleted. (e)(2)(C) has been revised to read: (C) Institution of administrative sanctions, in accordance with 40 TAC Chapter sec.254.13, relating to Department responsibilities for imposing sanctions. A commenter made a general comment regarding sec.260.15 and sec.254.25, stating that while these paragraphs are clear to the author who has extensive knowledge of the Department's policies regarding carryover, the Department could probably benefit from one or two AAA types working with the author to determine clearer language to portray the principles of the Department. Taking a little time now to clarify these sections could save future time, energy, and frustration. Another commenter ask what criteria will the Department use in granting extensions?" The Department responds that criteria for acceptable extension justifications will be included in the procedure manual. Care will be taken to ensure consistency of response and that language will be presented for review prior to issuance of any final document. In (F)(ii), a commenter asked if there was maintenance of effort regarding legal services. The Department responds that there is none and has removed this from the rules. In (e)(2) and (3), a commenter refers to the institution of administrative sanctions and asks what sanctions, stating that without being more specific, one cannot accept this statement. The Department responds that both paragraphs (e)(2) and (3) deal with the performance criteria in (e)(1), and has added words to make this clear. In (f)(8), a commenter stated that "as worded, even though vendors may be used (and the requirements for working with vendors are less stringent than those required for contractors) should they be found out of ADA compliance, the funds paid to them could be disallowed. Without the same monitoring requirements as subcontractors, how are the AAA to know if all ADA requirements are being met by the vendors? What if the AAA can demonstrate a good faith attempt to assure compliance? The department responds that the area agency must monitor to insure that service providers comply with (e)(1)(B), which requires all service providers to meet established standards. In (g)(2), a commenter asked that we clarify the meaning of this paragraph. The Department responds by stating that the amount due a provider, based on units served, shall not be reduced by program income collected. This would be the "deductive alternative" for handling program income and is prohibited by federal regulations. Comments on this rule were made by the Texas Association of Regional Councils, the Houston-Galveston Area Agency on Aging, and the operations committee, staff and Board of the Texas Department on Aging. The new section is adopted under Chapter 101, Human Resources Code, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. The Human Resources Code, Chapter 101, relating to the operation of the Texas Department on Aging, is affected by this action. sec.260.2. Area Agency on Aging Fiscal Responsibilities. (a) Area agency grantee fiscal integrity. Area agency grantees shall demonstrate and maintain fiscal integrity in order to comply with the requirements of the Older Americans Act of 1965, as amended; Title 45 CFR, Part 74; Title 45 CFR, Part 92; OMB Circular A-87 or A-122; OMB Circular A-128 or A- 133; OMB Circular A-110; all Texas Department on Aging Rules as published in the Texas Administrative Code (TAC); and with all state and local laws as pertains to the financial operation of an area agency. Policies, procedures, standards, and technical assistance memorandums shall be promulgated by the Department, as necessary, in order to support and interpret these rules and laws. The Department shall be the final authority in determining how these interpretations shall pertain to programs for older persons. The grantee/area agency on aging shall comply with the following financial criteria. (1) The area agency's provisions for maintenance of records shall include the following. (A) The area agency shall establish written procedures to adequately assure proper maintenance and retention of all financial records, supporting documents, statistical records, and all other records relating to its performance. (B) All of the records identified in subparagraph (A) of this paragraph shall be kept at the area agency site and shall be maintained for a minimum period of five years following the end of the grantee's fiscal year and until any pending litigation, claim or audit findings, issuance of proposed disallowed costs, or other disputes have been resolved. Multi-site area agencies may maintain all records at a designated central location. (C) The area agency shall require that subrecipient service providers adhere to subparagraphs (A) and (B) of this paragraph, as applicable, relating to the requirements for proper maintenance of records. It is not required that subrecipient service provider's records be kept at the area agency on aging. (2) The grantee shall ensure that accessibility of records shall include the following. (A) The area agency grantees shall give the Department, the Comptroller General of the United States, and the State of Texas through any authorized representatives, the access to and right to examine all records, books, papers, contracts, client records, unless specifically prohibited by law, or other documents related to this contract. Such examination may require access to papers, billings, vouchers, or other documents not directly related to the area agency if the purpose of such access is to review charges to any indirect costs pool which distributes any amount of common costs to various grantee programs. Such right of access shall continue as long as such records, or any of them, are in existence. (B) The area agency shall require that all service providers adhere to subparagraph (A) of this paragraph, relating to the requirements for proper accessibility of records. (3) Recapture of payments may occur when an area agency has failed to comply with all rules established by the Department, or if the area agency has received funds in excess of those actually earned. The Department may take appropriate action including the recapture of payment and/or withholding of funds in such cases that overpayment has occurred. (4) All purchases of service, materials, equipment, and goods made with grant funds shall follow the criteria of allowability as prescribed in OMB Circular A- 87 or A-122, as applicable, and the following. (A) All purchases shall have been made by actual receipt of the service or merchandise or issuance of a purchase contract, voucher, or other legal document that binds both parties to the transaction, not later than the last day of the grant period for which funds have been budgeted and encumbered. (B) Actual receipt of the service or merchandise and payment shall be made not later than 15 calendar days prior to the due date of the closeout report for the grant period for which funds have been budgeted and encumbered. (C) Any service or merchandise placed on order in a fiscal program year and not meeting the criteria in subparagraph (B) of this paragraph, shall be paid for with funds awarded for the fiscal program year in which the service or merchandise was actually received and/or payment made. (5) Disallowance of costs shall occur as follows. (A) In accordance with OMB Circular A-128 and A-133, determination shall be made by independent audit and/or subgrantee monitoring by the Department relating to the allowable use of federal, state, and matching credit funds, in accordance with OMB Circulars A-87, A-122, and other applicable laws, regulations, and circulars promulgated by recognized authoritative bodies. (B) Costs found to be unallowable, in accordance with those references in subparagraph (A) of this paragraph, relating to the allowable use of funds, shall be designated as questioned costs. (C) Questioned costs shall represent costs potentially unallowable in accordance with cost allowability standards after the close of a grant year and, in the case of monitoring, submission of the final financial status report. Disallowance is established when an area agency receives notification of a proposed action to impose sanctions, in accordance with sec.254.13 of this title (relating to Department Responsibilities For Imposing Sanctions), resulting from questioned costs which remain unresolved at the time of such notification. (D) In accordance with sec.254.15 of this title (relating to Hearing Procedures For Area Agency Grantees), an area agency shall have the right to a hearing concerning the issuance of, or basis for the disallowance. (E) Any area agency having funds recaptured because of a disallowance, in accordance with paragraph (3) of this subsection relating to recapture of payments, shall waive all rights to such funds and shall not receive any of the funds upon reallocation. (F) Disallowance resulting from questioned costs revealed during independent audit shall be issued, in accordance with subsection (b) of this section relating to the requirements for an independent audit, following the failure to resolve all such questioned costs within the six months allowed for resolution in accordance with OMB Circular A-128, Section 14 and OMB Circular A-133, Section 5. (G) Disallowance resulting from questioned costs established during monitoring by the Department shall be issued by a letter of proposed action by certified or registered mail, return receipt requested, within 30 calendar days following the failure to resolve all such questioned costs within the timeframe established by the Department. A proposed action resulting from non-receipt of required subrecipient audits shall be resolved in the same manner as if revealed by independent audit, in accordance with subsection (b) of this section, relating to the requirements for an independent audit. (b) Independent audit. The area agency grantee shall provide an independent audit as follows. (1) The area agency grantee shall provide and furnish the Department an annual audit by an independent certified public accounting firm within 30 calendar days following receipt of such audit, but in no case more than 13 months following the end of the grantee's fiscal year. (2) The audit shall cover the entire organization and be conducted in accordance with generally accepted auditing standards. Additionally, audits shall be conducted in accordance with audit guidelines promulgated by the Department, or the Single Audit Manager's Forum (SAMF), or other authoritative source with prior written approval from the Department. (3) An area agency grantee receiving more than $25,000 in federal funding from all sources shall provide an audit in accordance with the standards for financial and compliance audits contained in the Standards for Audit of Governmental Organizations, Programs, Activities and Functions, issued by the U.S. General Accounting Office; the Single Audit Act of 1984, including all updates and revisions; and, the provisions of OMB Circular A-128, Audits of State and Local Governments, or OMB Circular A-133, Audits of Institutions of Higher Education, and other Nonprofit Organizations, as applicable. (4) An area agency shall require all subrecipient service providers to adhere to subsections (b)(2) and (b)(3) of this section, relating to the requirements for an independent audit. This requirement shall not apply to for-profit service providers or service vendors, whether not-for-profit or for-profit, receiving funds only through the direct purchase of services funding methodology and not acting in the capacity of a subrecipient. (5) An area agency grantee shall be liable to the Department for any costs disallowed as a result of unresolved questioned costs revealed during the audit relating to aging programs and/or expenditures. (6) A certified or registered return receipt requested letter of proposed action to recover unresolved questioned costs revealed in an audit shall be issued by the Department within 30 calendar days following the failure to resolve all such questioned costs. The 30 calendar day period shall begin the next day following the six months allowed for resolution in accordance with OMB Circular A-128, Section 14 and OMB Circular A-133, Section 5. Questioned costs resulting from non-receipt of required subrecipient audits shall be resolved as follows: (A) written notification to the Department by the grantee within 30 calendar days following receipt of the proposed action that an independent audit firm has been engaged to conduct an audit or resolve deficiencies in inadequate audits for the affected subrecipients; and (B) receipt by the Department of an independent audit meeting the requirements of the Single Audit Act of 1984, as revised, and the provisions of OMB Circular A-128 or A-133, as applicable, within 90 calendar days following such audit engagement notification; or (C) full payment of the questioned costs as identified in the proposed action. (7) Failure to provide an acceptable independent audit of the subrecipient service provider within the timeframe established in this subsection, relating to the requirements for an independent audit, shall be deemed non-resolution and receipt of an audit subsequent to that limitation shall not be acceptable. In the event of non-resolution under this subsection, resolution shall be made by recovery of all state and federal funds paid to the non-compliant agency during the period audited. (c) Debarment and Suspension. Conducting business with entities under Debarment or Suspension shall be prohibited as follows. (1) The grantee shall not, using reasonably prudent judgement, deal with any person, business, or other entity which has been suspended or debarred from receiving federal funds under 45 CFR sec.76.200, relating to non-procurement, or 48 CFR Part 942, Contract Administration. (2) The grantee shall secure a Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion for Covered Contracts and Grants from any potential subcontractor or subgrantee, of any tier, for which such certification is required, prior to issuing any award, grant or contract. (3) The grantee shall submit for each federal fiscal year a Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion for Covered Contracts and Grants, to certify that all service providers adhere to paragraph (1) of this subsection, relating to the requirements regarding debarment and suspension. (d) Budget submissions. All budget and budget amendment submissions shall meet the following requirements. (1) For all original budget and subsequent budget amendment submissions the following shall apply. (A) All area agencies shall submit an original budget as part of its area plan prior to the beginning of each federal fiscal year. Budget amendments shall be submitted as directed by the Department or when there is a change of scope which affects the area agency's ability to implement its approved area plan. The budget, whether original or amended, shall quantify the persons and units to be served, the expenses to provide services, and the resources available to fully fund such expenses to assure compliance with the goals and objectives detailed in the area plan narrative in order to produce the desired outcomes of the area agency and fulfillment of its mission and strategies as stated in the area plan. (B) All budget and budget amendment submissions shall be received by the due date as prescribed by the Department. (C) The original budget shall use the planning figures provided by the Department and must allocate all funds provided by the Department. (D) All budget amendments shall use actual allocations of all funds awarded by the Department, including any carryover funds awarded. (E) The area agency shall meet adequate proportion (unless a written waiver is obtained), match, and maintenance of effort requirements. (F) When an area agency provides services through Case Management and budgets resources under the DPS pool, verification of intent to meet the requirements regarding adequate proportion, match requirements, and maintenance of effort shall be submitted in a format to be prescribed by the Department, unless the resources are budgeted under individual services direct purchase of services pools. (G) The area agency shall complete all supporting documentation, as prescribed by the Department, for inclusion in all budget submissions. (2) An amended budget must be submitted and approved prior to the following: (A) contracting for a previously unbudgeted and unapproved service; (B) the area agency conducting a service directly, when waiver is required, which was not identified and approved in the area plan and budget; (C) the expenditure of unbudgeted funds resulting from an increase in the approved administrative budget, regardless of the amount; (3) An amended budget must be submitted for approval within 20 workdays following: (A) discontinuance of a service which was identified and approved in the area plan and budget; (B) change of scope which affects the area agency's ability to implement its approved area plan. (e) Area agency accountability. To demonstrate area agency on aging accountability, area agencies shall meet programmatic and financial performance targets as outlined in its approved area plan and the requirements established by the Department. (1) Area agencies shall meet the following performance requirements. (A) All reports, budgets, budget amendments, and other required submissions to the Department shall be complete and accurate and have sufficient documentation to verify such accuracy upon review by the Department during any review, whether conducted at the site of the area agency or through desk review, when such documentation is required to be submitted. (B) An area agency shall require that subrecipient service providers meet service requirements established by the Department and shall monitor for such compliance. The area agency shall maintain documentation to demonstrate such compliance. (C) An area agency shall maintain a timely reporting rate, on an annual basis, of 100% for financial status reports, program performance reports, Ombudsman, the Area Plan Performance Report, and all other required reporting obligations as prescribed by the Department, unless it has received written extension, in accordance with subparagraph (E) of this paragraph, relating to requests for extension, for a period not to exceed three working days following due date. (D) Area agencies shall file their area plan and any required amendments, all monitoring responses, budget and budget amendments on time, unless it has received written extension, in accordance with subparagraph (E) of this paragraph, relating to requests for extension, for a period not to exceed ten working days following due date. (E) All requests for extension shall be received by the Department in writing not less than two working days prior to the due date of the reports, as identified in subparagraphs (C) and (D) of this paragraph. (i) All requests shall provide the following information: (I) identify the report for which extension is being requested; (II) each report identified shall be considered a separate request for purposes of this section; (III) provide justification for the need for extension; (IV) indicate the proposed date of receipt by the Department of the submission, in accordance with the limitations set forth in subparagraphs (C) and (D) of this paragraph. (ii) No more than two report extensions shall be approved during any federal fiscal year. (F) The Area agency shall meet, unless written waiver is obtained, the following: (i) all requirements for adequate proportion with regard to access services, in-home services, and legal services unless written waiver is obtained; (ii) all requirements for maintenance of effort with regard to Ombudsman Activities. (2) Failure to meet the requirements in subsection (e)(1) of this section, relating to area agency performance requirements, shall be the basis for Department actions as follows, unless failure was due to an act of God or action by the Department: (A) non-qualification for carryover funding; (B) exclusion from the carryover reallocation pool; (C) institution of administrative sanctions in accordance with sec.254. 13 of this section, relating to Department responsibilities for imposing sanctions; and (D) exclusion from application for and receipt of any discretionary funding offered by the Department. (3) Failure to meet the requirements in paragraph (1) of this subsection, relating to area agency performance requirements, shall result in actions being taken by the Department unless failure was due to an act of God or action by the Department, in accordance with sec.254.13 of this title, relating to Department responsibilities for imposing sanctions. (f) Contracting. Area agencies shall apply prudent business judgement in areas of contracting for services and goods to be purchased and the reimbursement methodologies to be used in funding such contracts. (1) The authority for area agencies to contract is based on the Older Americans Act or 1965, as amended, and its regulations; HHS regulations on Administration of Grants; Title 45 Code of Federal Regulations (CFR), Part 74; Title 45 CFR, Part 92; Title 45 CFR, Part 1321, et seq; Title 45 CFR, Part 91; and all policies and rules established by the Department; and with all state and local laws as they pertain to contracting and reimbursement methodologies. (2) The area agency shall use any or all of the four contracting methodologies for the procurement of goods and services for provision of services to older persons. These contracting methods are known as cost reimbursement, performance based unit rate, direct purchase of services, and sole source procurement. (A) In cost reimbursement contracts, the area agency pays the contractor on a reimbursable basis for services rendered. The contractor agrees to deliver specific services and the area agency will make payment of actual expenses based on a pro rata share that federal and/or state funds represent of the total funds budgeted in the approved budget for each specific service. Reimbursement shall not be adjusted to offset poor management planning. Any adjustment to a reimbursement rate shall be judged on its own merits. It is the responsibility of the contractor requesting an increase in the share of expenses that federal and/or state funds will pay to document to the area agency that the increase is warranted due to circumstances beyond their control. It is the responsibility of the area agency requesting a decrease in the share of expenses that federal and/or state funds will pay to assure that the decrease is warranted. Adjustments to the share of expenses that federal and/or state funds will pay will be considered only in instances where: (i) a subrecipient service provider experiences significant operating losses due to events over which they have no control or reasonably could not have anticipated; or (ii) a subrecipient service provider experiences excess revenues over operational costs due to unanticipated, and/or unbudgeted additional resources; or (iii) reductions in expenses due to a change in cost allocation methodology. (B) In using the unit rate performance based contracting method, the area agency agrees to pay to the contractor in the amounts and upon the terms, provisions and budgets as set forth in the contract as a result of negotiation of a suitable unit rate. The area agency pays the contractor on a unit rate reimbursement basis for services rendered. The contractor agrees to deliver specific services on an at-risk basis. Adjustment to unit rates shall be considered using the criteria described in subparagraph (A) of this paragraph. (C) Direct purchase of service contracting is an alternative contracting methodology for the purchase of services. It allows for the purchase of service on a client-by-client basis instead of contracting annually by either the performance based or cost reimbursement methods. The area agency sets aside a sum of money, known as a direct purchase pool, to be used by case managers and benefits counselors when developing an individual's care plan. Direct purchase of service does not require a match contribution by the vendor. (D) The sole source procurement method may be used only when the award of a contract is not feasible under the other procurement methods. In this event, area agencies shall comply with the procedures established in 45 CFR Part 92.36(d)(4), relating to procurement by noncompetitive proposals. (3) Area agencies using the unit rate performance based or cost reimbursement methods shall issue a request for proposal for each service to be contracted prior to the beginning of each area planning cycle and additionally, if the need arises during the area planning cycle. Area agencies shall comply with competitive bidding procedures for any available funds in excess of $25,000 in the aggregate. Funds in excess of $25,000 shall not be subdivided to circumvent the intent of this policy. Area agencies shall require specific information on which to judge the qualifications of applicants and their potential to be successful service providers. Notice of the availability of a request for proposal shall be disseminated throughout the area to be served in such a way as to promote fair and open competition in the procurement process. Documentation shall be maintained by the area agency to demonstrate all such efforts. Information provided in the notice of the availability of a request for proposal shall be sufficient to allow a person of prudent judgement the facts necessary to determine reasonable interest in the request for proposal. Complete request for proposal packets issued by area agencies shall be in accordance with Department procedures. (4) Regardless of the type of procurement processes used, the area agency shall document that the service provider conforms to the specified subrecipient service requirements in providing all services and vendor service providers meet the specified service criteria set forth n their request for bid. In the absence of adopted service requirements for any specific service, the area agency shall identify the performance requirements which the provider shall follow until such time as service requirements are promulgated by the Department. (5) In order to establish and track service costs accurately, each service provider shall have an accounting system which identifies all costs for each specific service being purchased. The area agency shall require, by contract stipulation, that the sub recipient service provider have complete and accurate accounting records to review and manage service costs. (6) Service contracts shall contain specific requirements for reporting, regardless of the procurement method used. Area agencies shall include a provision for complete and accurate reporting and documentation of units of service and unduplicated persons who receive the services. Payments for service shall be based on the service units provided and the agreed upon method for service payment. (7) Area agencies providing direct services which require authority and waiver from the Department shall complete the appropriate sections of the area plan or area plan amendments. The area plan budget document shall specify the unit rate identified for applicable direct services of the area agency. Area agencies shall enter into a direct service agreement with the Department which states the service performance expectation during a specified period. The direct service agreement shall become part of the approved area plan. All requirements regarding performance, accounting and reporting shall apply to area agencies in direct service provision. (8) Area agencies shall not purchase services, regardless of the contracting methodology used as described in paragraph (2) of this subsection or the nature of the entity, from any service provider not in compliance with the provisions of the Americans with Disabilities Act. Expenditures in violation of this requirement shall be disallowed and recapture of the disallowed payments shall be pursued by the Department in accordance with subsection (a)(3) of this section. (g) Program income. Program income contributions shall be administered in accordance with the Act; 45 CFR Part 1321; and 45 CFR, Part 92.25. In addition the following shall apply. (1) When an area agency uses the cost reimbursement methodology, as described in subsection (f)(2)(A) of this section, relating to cost reimbursement contracting, for funding contracted service providers, reimbursement shall not be made in excess of actual allowable expenses less program income received during the reimbursement period in accordance with 45 CFR Part 92.25, relating to program income. (2) When an area agency uses the unit rate performance based contracting methodology, as described in subsection (f)(2)(B) of this section, relating to unit rate performance contracting for funding contracted service providers, no deduction shall be made to the amount paid based on units served for program income received, since the contractor is deemed to be at-risk. (3) When an area agency or other designated case management or benefits counseling service provider purchases services using the direct purchase of service methodology, it shall: (A) be the responsible entity for collection of program income from program clients; (B) account for the program income receipt and expense on all required financial reports; and (C) expend all program income collected for such services prior to billing for units of service from federal or state funds. (4) In the event that program income is physically collected by the vendor, all program income shall be remitted to the area agency or entity providing the case management or benefits counseling activities as appropriate. Program income collected by vendors shall not be retained by the vendor to offset or enhance the purchase price of the service provided. 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 22, 1994. TRD-9452735 Mary Sapp Executive Director Texas Department on Aging Effective date: January 12, 1995 Proposal publication date: September 2, 1994 For further information, please call: (512) 444-2727 40 TAC sec.260.15 The Texas Department on Aging adopts new sec.260.15, relating to responsibilities of the grantee for carryover of unexpended funds, with changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6901). The purpose of the rule is to relocate previous rules to a new section of the Texas Administrative Code and to clarify language and procedures by which area agencies meet the fiscal responsibilities established by Federal and State requirements. The function of the rule is to establish a standard procedure for identification and reallocation of funds excess to expenditures at the end of each fiscal year for Older Americans Act programs in Texas. A few comments were received on the text of the rule. It was suggested that the title of the rule of sec.260.15 be expanded to clearly identify that the rule pertained to Older Americans Act and other funds issued by the Department. The Department concurs and has made the change. In subsection (b)(3), a commenter suggested that the Department clarify the wording to minimize confusion. The Department concurs and has amended the language. In subsection (c)((5), regarding carryover, a commenter suggested adding words to clarify the intent of the paragraph. The Department concurs and has reworded the paragraph accordingly. The Texas Association of Regional Councils, and the operations committee, staff, and Board of the Department commented on the rule. The new section is adopted under Chapter 101, Human Resources Code, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. The Human Resources Code, Chapter 101, relating to the operation of the Texas Department on Aging, is affected by this action. sec.260.15. Responsibilities of Grantee for Carryover of Unexpended Older Americans Act Funds and Any Other Funds Issued by the Department. (a) Purpose. This policy establishes the criteria under which a grantee agency may request authorization to expend Older Americans Act funds and any other funds issued by the Department, during the fiscal year immediately following the fiscal year for which the funds were initially awarded. (b) Procedures. Grantee agencies seeking approval for carryover funds and to receive funds from the carryover pool/s, as described in sec.254.25(e) of this title (relating to Carryover Reallocation Pools), shall comply with procedures established by the Department including, but not limited to, the following: (1) submission of a final report at the end of the 90 day closeout period, including but not limited to, the unexpended balance of funds and return of any over-payments made to the grantee by the Department; (2) full and final payment of obligation, including receipt of the goods and services, under the grant no later than 15 days prior to the due date of the final report; (3) submission of a budget amendment following carryover award which shall include any approved carryover funds and amended area plan strategies affected by such carryover funds as required by the Department. (c) Eligibility for participation in reallocation pools. Participation in each of the separate reallocation pools shall be limited to grantee agencies that meet the following criteria for the source of funding for which carryover is being sought: (1) the grantee shall not have unexpended funds in excess of 5.0% of the overall funds awarded for Older Americans Act Title III during the grant period, when considered separately; (2) the grantees eligible for reallocated Older Americans Act Title III funds shall have met the performance requirements and financial standards outlined in sec.260.2(e) of this title (relating to Area Agency Accountability); (3) the grantees eligible for reallocated funds, other than Older Americans Act Title III, shall not have unexpended funds in excess of the following percentages of the overall funds awarded, when considered separately: (A) 5.0% of the awarded funds if awarded during the first quarter of the grant period; or (B) 15% of the awarded funds if awarded during the second quarter of the grant period, or (C) 25% of the awarded funds if awarded during the third quarter of the grant period; or (D) 35% of the awarded funds if awarded during the fourth quarter of the grant period. (4) the grantee shall not have any unpaid amounts due to the Department for disallowed costs for the fiscal year for which carryover funds are being sought unless a prior payment has been established or is pending final Department approval; (5) the grantee shall have met all requirements for adequate proportion for eligible in-home services, access services, and legal services, unless waiver from such requirements has been obtained, and maintenance of effort requirements for Ombudsman activities. (d) Justification requirements. Requirements for establishing justification for carryover are contained in sec.260.2(e) of this title (relating to Area Agency Accountability), and include but is not limited to sec.254.25(c) of this title (relating to Approval Of Carryover Of Other Funds), submission of a narrative which supports the approved area plan strategies, and financial information as required by the Department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on December 22, 1994. TRD-9452736 Mary Sapp Executive Director Texas Department on Aging Effective date: January 12, 1995 Proposal publication date: September 2, 1994 For further information, please call: (512) 444-2727 Chapter 265. Grant Related Income 40 TAC sec.265.1 The Texas Department on Aging adopts the repeal of sec.265.1, concerning grant related income to relocate this section elsewhere in the Texas Administrative Code, without changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6902). Adoption of the repeal is necessary to continue the recodification of Department rules. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on December 22, 1994. TRD-9452737 Mary Sapp Executive Director Texas Department on Aging Effective date: January 12, 1995 Proposal publication date: September 2, 1994 For further information, please call: (512) 444-2727 Chapter 267. Nutrition Services Standards 40 TAC sec.sec.267.1-267.12 The Texas Department on Aging adopts the repeal of sec. sec.267.1-267.12, concerning nutrition services standards for the elderly to rewrite and relocate this section elsewhere in the Texas Administrative Code, without changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6902). Adoption of these repeals are necessary to continue the recodification of Department rules. No comments were received regarding adoption of these repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on December 22, 1994. TRD-9452738 Mary Sapp Executive Director Texas Department on Aging Effective date: January 12, 1995 Proposal publication date: September 2, 1994 For further information, please call: (512) 444-2727 Chapter 270. General Service Requirements 40 TAC sec.sec.270.2, 270.3, 270.5 The Texas Department on Aging adopts new sec.sec.270.2, 270.3, and sec.270.5, relating to general service definitions and requirements, transportation service requirements and nutrition service requirements, with changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6903). The purpose of these rules is to relocate previous rules to a new section of the Texas Administrative Code and to clarify language and procedures by which area agencies meet the service requirements and responsibilities established by Federal and State requirements. The function of these rules is to establish standard procedures for the delivery of transportation and nutrition services and establish common definitions relating to these services. A few comments were received on the text of these rules. Two commenters voiced support of the definition contained in sec.270.2, for "qualified dietitian" and gave overall support to the nutrition service standard revisions. The Department appreciates this support. One commenter suggested that the nutrition consultation service definition be rewritten to state that a qualified dietitian provides the service whether the service is contracted separately or provided as a direct service by the area agency. The Department concurs and has amended the language in this definition. One commenter suggested that a definition for transportation cost be included in the definitions. The Department concurs and has added this definition. In sec.270.3(d)(2), a suggestion was made to add language pertaining to those users of this service who are under the age of 60. The Department concurs and has made this change. In subsection (f)(3), a commenter suggested adding additional words regarding the type of transportation services to be delivered. The Department concurs and has added specific language to this subparagraph. One commenter asked "is there a liability to the provider or the area agency if Title III-B funds are used to provide one-way trips to a nutrition site only?. The Department responds that there is no obligation to pay for requested trips other than those specified in the provider's contracts. Trips not specifically identified in provider contracts shall not be reimbursed with Title III funds. Unauthorized trips paid for with Title III funds will result in audit exceptions. In subsection (k), a commenter recommended adding "scheduling and dispatching" to training provided service providers. The Department concurs and has added this language. In subsection (n), a suggestion was made to reparagraph and eliminate language as being redundant to the meaning of this subsection. The Department has rewritten this paragraph. In sec.270.5(b)(10), relating to nutrition education programs, it was suggested that nutrition education programs be provided as required by the OAA rather than monthly and that developing a written planned schedule of nutrition education is not practical since to set dates and speakers in concrete would only provide an instrument which would have to be changed frequently to accommodate the wishes of the participants. The Department responds that nutrition education provided on a monthly basis has been a component of the program standards since 1987. Nutrition education is an integral part of any nutrition intervention program with the goal of maintaining the health and independence of the elderly. Nutrition education is recognized as an important intervention by the Nutrition Screening Initiative and promoted in Department's statement of board positions adopted July, 1992 and February, 1994. A written nutrition education plan is quite practical. This does not require that specific dates be noted and rigidly followed, but provides for appropriate planning to ensure that program meet the needs of the senior participants, and allowing for sufficient time to obtain necessary resources and speakers. Effective education requires good planning and should not just be "worked in" to a schedule as time allows. In paragraph 10(A), a commenter suggested rewording to also include approval by a county extension agent prior to implementation. The Department concurs and has added this to the text. In subparagraph (C), a commenter suggested this subparagraph be changed to read "written documentation shall be kept of programs presented to verify that the requirements are being met." The Department concurs and has amended the text. In subsection (c)(4)(D)(i), a change was suggested to the wording regarding impairment level and/or disabling health problems to clarify this subparagraph. Staff comments that this should read "impairment inability to perform activities of daily living or instrumental activities of daily living. The Department concurs and has amended the language. Comments on this rule were received from the Texas Association of Regional Councils, M. Briley Ph.D., RD, LD, of the University of Texas, B. Keir, MS, RD, LD, Texas Department of Health, B. Berryhill, Board of Examiners of Dietitians, and the operations committee, staff and Board of the Department. The new sections are adopted under Chapter 101, Human Resources Code, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. The Human Resources Code, Chapter 101, relating to the operation of the Texas Department on Aging, is affected by this action. sec.270.2. Services Definitions. (a) The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Congregate meal-The hot or other appropriate meal served to an eligible person which meets sec.270.5 of this title (relating to (Nutrition Service Requirements), and which is served at a congregate meal site. (2) Congregate meal site-The generic term for a facility and/or a minimum level of service within a facility that may be either a nutrition site, a senior center, or multipurpose senior center. As a minimum level of service, it refers to the provision of meals, nutrition education, and nutrition outreach to eligible persons and their spouses, the cost of which is supported in whole or in part by Older Americans Act funds. (3) Congregate nutrition service provider-An agency that is awarded a subgrant or subcontract from an area agency on aging to provide congregate nutrition services and which may include meal preparation. (4) Congregate nutrition services-The provision of services at a congregate meal site in accordance with requirements established in sec.270.5, Nutrition Service Requirements of this chapter. (5) Consultant-An individual on contract full-time or part-time to perform professional services. (6) Contact-A unit for measuring the provision of services. One contact is recorded each time a participant receives a service. For group activities, each participant counts as one contact. (7) Demand response-Refers to the transportation service where a passenger request a ride from a specific location to another specific location at a certain time. Can also be called "dial-a-ride." Usually these services require advanced reservations. (8) Elderly-Those persons age 60 and over. (9) Fixed route-Refers to transportation services where vehicles run on regular, pre-designated, pre-scheduled, posted and advertised routes, with no deviation. (10) Homebound-Unable to leave the home without assistance due to illness, incapacitating disability, or frailty. (11) Home delivered meal-A meal delivered to an eligible homebound person which meets requirements established in sec.270.5 of this title (relating to Nutrition Service Requirements). (12) Home delivered nutrition service provider-An agency that is awarded a subgrant or contract from an area agency on aging or a contract from a nutrition service provider to provide home-delivered nutrition services and which may include meal preparation. (13) Home delivered nutrition services-The provision of services to a homebound elderly person in his place of residence in accordance with requirements established in sec.270.5 of this title. (14) Meal carrier-A container designed and used to transport bulk containers of food or individually packaged meals, to include picnic chests with lids, thermal envelopes, and thermal bags that maintain safe temperatures. (15) Meal cost-The total service unit cost. For contracted services, includes food and administration costs and delivery costs, and costs for nutrition education, outreach and nutrition consultation. Delivery costs should be included for home-delivered meals. Direct purchase of service costs may or may not include nutrition consultation, outreach or nutrition education costs. (16) Meal packaging-Permanent or disposable trays or cups with lids or seals, and bags or boxes which are designed and used for delivery of individual servings of food for a meal. (17) Meal provider-An agency or organization that is awarded a subgrant or contract from the area agency on aging or a congregate or home delivered nutrition service provider to provide meals. A meal provider does not have to be the same entity as a service provider. (18) Menu cycle-A preplanned written sequence of daily menus for a minimum of four weeks. (19) Nutrition consultation services-Activities performed by a qualified dietitian that may be either contracted separately by the service provider or provided as a direct service by the area agency on aging. Such activities do not include area agency on aging responsibilities for monitoring. (20) Nutrition education-The provision of information to participants to promote nutritional well-being. (21) Nutrition outreach-To seek out and identify, on an ongoing basis, hard- to-reach, isolated, and withdrawn eligible individuals. (22) Nutrition participants-Those older persons age 60 years or older and their spouses, or other eligible persons who receive one or more Older Americans Act services. (23) Nutrition site-See congregate meal site. (24) Nutrition unit of service-A meal which meets all the requirements established in 40 TAC 270.5, Nutrition Service Requirements. (25) Potentially hazardous food-Any food that consists in whole or in part of milk or milk products, eggs, meat, poultry, fish, shellfish, edible crustacea, or other ingredients including synthetic ingredients, in a form capable of supporting rapid and progressive growth of infectious or toxigenic microorganisms. The term does not include clean, whole, uncracked, odor-free shell eggs or foods which have a Ph level of 4.5 or below or a water activity (Aw) value of 0.85 or less. (26) Qualified dietitian-An individual who is one of the following: a registered dietitian with the Commission on Dietetic Registration, or a licensed or provisionally licensed dietitian with the Texas State Board of Examiners of Dietitians. (27) Qualified dietary manager-An individual who is certified by the Dietary Managers Association to have completed a dietary managers course and a minimum of 100 hours of on-the-job training in a supervisory position in the food service department of a health care facility. (28) Therapeutic medical diet-Meals that are altered to meet the specific requirement of a diagnosed disease or metabolic disorder, to correct nutritional deficiencies, and/or to support attainment of ideal body weight. (29) Transportation service for the elderly-The act or process of transporting a person 60 years of age or older from one location to another. (30) Transportation unit of service-A one-way trip. (31) Transportation cost-The total service cost per one-way trip. Such costs generally include, but are not limited to fuel, oil, maintenance and repair, personnel (drivers and dispatchers), fringe benefits, licenses and insurance. sec.270.3. Transportation Service Requirements for the Elderly. (a) Purpose. This section governs the provisions of transportation services authorized by the Older Americans Act to the elderly. (b) Applicability. (1) This section shall be used by the Texas Department on Aging, area agencies on aging, and all transit service providers authorized by the Older Americans Act. (2) Transportation services not funded or authorized in whole or in part by the Older Americans Act are not subject to these rules. (c) Outcome. Transportation services shall provide access to needed services which maintain the independence and dignity of the elderly. (d) Service Usages. (1) Transit providers authorized by the Older Americans Act shall provide transportation services to persons under the age of 60 to promote full utilization of all grant purchased and operated transit vehicles. (2) Transit providers shall recover the cost of their services to persons under the age of 60 or from other funding resources other than funds authorized by the Older Americans Act. The cost of transportation services to persons under the age of 60 shall be recovered from the person or program authorizing the transportation service or from other funding. (3) Eligible Older Americans Act participants shall not be denied transportation services by any transit providers funded by the Older Americans Act because they do not have the money to pay for and/or do not wish to contribute to the service. (e) Methods of service delivery. Transportation services shall be provided by: (1) public agencies, nonprofit agencies, private for profit agencies, and/or private individuals; and (2) area agencies and/or transit providers through subcontract, direct purchase of service, direct service or vouchers. (f) Components of the service delivery system. (1) At a minimum the transportation system shall provide non-emergency, curb- to-curb service as: (A) demand-response; (B) fixed route service; and/or (C) a combination of fixed route and demand response. (2) Transportation services shall be designed by transit providers in accordance with the Americans with Disability Act of 1990. (3) Transportation services shall be provided to and from activities only as specified in the provider's contract. (g) Area agency responsibility. (1) Area agencies shall specify the use of available funds in transportation request for proposals and shall require that request for proposal respondents specify which activities participants will be transported to and/or from. (2) Expenses incurred in providing services beyond the specified use identified in the request for proposal shall not be considered for unit rate determination. All such services shall be funded entirely apart from the Title III program. (h) Record keeping and reporting. Area agencies and transit providers authorized by the Older Americans Act shall comply with provisions of sec.270. 1(h) and (i) relating to record keeping and reporting. (i) Compliance requirements. Area agencies and transit providers authorized by the Older Americans Act shall comply with sec.254.3(1), (2), (19), and (20) of this part relating to support documents, provisions of the Texas Traffic Laws pertaining to Motor Carrier, Texas Civil Statutes, Article 911b, Uniform Act, Texas Civil Statutes, Article 6701b and Commercial Vehicle Lighting and Reflector Requirements; Miscellaneous Traffic Laws, Civil Practice and Remedies Code, Chapter 74, pertaining to the Good Samaritan Law; Human Resources Code, sec.121.007; Drivers License, Texas Civil Statutes, Article 6687b, Article 6687b-2; Safety Responsibility, Texas Civil Statutes, Article 6701h, pertaining to Motor Vehicle Safety Responsibility Act, and the Texas Railroad Commission, sec.5.171 and the Texas Traffic Laws relating to Evidence of Insurance Required. (j) Accident Reporting. Area agencies and transit providers authorized by the Older Americans Act shall follow the accident reporting procedures established by the Department. (k) Training. Transit providers authorized by the Older Americans Act shall provide transit staff with training in the areas of scheduling and dispatching, defensive driving, passenger handling and assistance, first aid, and CPR training. (l) Monitoring activities. Area agencies shall monitor activities in accordance with sec.260.1.(e) of this title (relating to Monitoring by the Area Agency on Aging). (m) Coordination. Area agencies and transit providers shall coordinate efforts to eliminate duplication and maximize resources. (n) Private or personal use of vehicles. Vehicles purchased all or in part with Older Americans Act funds shall not be used for personal business or pleasure. sec.270.5. Nutrition Service Requirements. (a) Scope. These rules apply to all congregate and/or home-delivered nutrition services provided in accordance with sec.270.1(b) of this title (relating to Scope of General Service Requirements). (b) Congregate Nutrition Services Program Description and Performance Requirements. (1) Service outcome. The service outcome is to promote better mental and physical health for older people through nutritious meals and socialization. Congregate nutrition services shall be a part of a system of services to promote independent living for the elderly by serving as a focal point for services. (2) Service activities. Service activities include provision of meals and nutrition education in a group setting in a nutrition site, senior center, or multipurpose senior center with ongoing nutrition outreach. Other services, including information and referral, access to congregate meal sites, health and educational programs, or recreational activities may also be provided by resources other than the Older Americans Act. (3) Eligibility. Eligibility criteria shall comply with provisions stated in the Older Americans Act, sec.307(a)(13)(A) and (I) relating to eligibility. (4) Schedule of meal service. The service provider agency shall serve meals in accordance with provisions stated in Older Americans Act, sec.331, Subpart 1, relating to Program Authorization. (5) Participant intake requirements. The service provider agency shall maintain official files containing information which identifies regular participants, documents eligibility, and gives procedures for emergency care. (6) Meal service requirements. Nutrition providers shall develop procedures which provide for safety, sanitation, accessibility and convenience needs of participants, and efficiency of service, and shall include the following: (A) using correct portion sizes and utensils as specified on menu; (B) adherence of staff and volunteers to food sanitation requirements; (C) taking food temperatures to document that safe temperatures are maintained; and (D) assisting participants with trays who have physical difficulties. (7) Food Sanitation. Potentially hazardous foods shall be kept at a safe temperature as stated in the Texas Department of Health Division of Food and Drug "Rules for Food Service Sanitation." (8) Holding period. Holding time for hot food shall not exceed four hours from the time when the food is taken from the equipment in which cooking or reheating is completed until it is served. (9) Nutrition outreach. Nutrition outreach shall be conducted with emphasis on the preferred target group as defined in sec.260.1(f) of this title (relating to Targeting Service Delivery). (10) Nutrition education. Nutrition education shall be provided at each congregate nutrition site through at least one monthly program of not less than 15 minutes in accordance with the Department's procedures. A written plan of nutrition education programs which includes subject matter, presenter, and materials used, shall be developed. (A) The programs shall address the nutritional needs of seniors and be approved by a qualified dietitian or county extension agent-family and consumer scientist (home economist), prior to implementation. (B) The content of all programs shall be developed or distributed by a qualified dietitian, county extension agent, or other sources promulgated by Texas Department on Aging. (C) Written documentation shall be kept of programs presented to verify that the requirements are being met. (11) Facility access. All nutrition sites shall comply with Americans with Disabilities Act relating to access. (c) Home-Delivered Nutrition Service Program Description and Performance Requirements. (1) Service outcome. The service outcome is to promote better health for homebound older persons who are eligible for nutritious home-delivered meals. (2) Service activities. Service activities include provision of meals and nutrition education in the home, with ongoing nutrition outreach, assessment of needs, and appropriate referral to other services. Other in-home services may also be provided by resources other than the Older Americans Act. (3) Schedule of meal service. The service provider agency shall provide home delivered meals in accordance with the Older Americans Act, sec.336, Subpart 2, relating to Program Authorization. (4) Eligibility. (A) Procedures shall be developed and implemented for determination of eligibility and assessing the need for service so that meals are delivered only to eligible persons. (B) Eligibility criteria shall comply with provisions stated in the Older Americans Act, sec.307(a)(13)(A) and (I), relating to eligibility. (C) Person is assessed as being homebound. (D) Eligibility shall be based on an assessment of at least the following: (i) impairment in ability to perform activities of daily living or instrumental activities of daily living. (ii) frequency that a person leaves his home and assistance that is needed to do so; (iii) ability to prepare nutritious meals and shop for food; and (iv) resources available to assist older persons. (E) A home visit for assessment of need for service shall be documented within two weeks of beginning service. (F) Reassessment shall be done at no greater than six month intervals. (5) Participant records. Records for regular participants shall be maintained which contain the following information: (A) intake information; (B) documentation of eligibility, assessment, and reassessment; (C) procedures for emergency care; and (D) be made available for monitoring purposes. (6) Conditions for referral to other services. Participants shall be assisted in taking advantage of other services. Participants shall be referred to appropriate agencies as warranted by their condition and in accordance with the Department's procedures. (7) Meal delivery. Procedures for meal delivery shall be developed in accordance with the Department's procedures which require maximum sanitation and safety for the participant. (8) Meal packaging. Supplies and carriers will be used so that hot foods are packaged and transported separately from cold foods. (A) Meal carriers used to transport trays or containers of potentially hazardous food and other hot or cold food will be enclosed to protect such food from contamination, crushing, or spillage and be equipped with insulation and/or supplemental hot or cold sources as is necessary to maintain safe temperatures. (B) Meal carriers shall be cleaned and sanitized daily or have a sanitized inner liner. (C) Meal packaging must meet the following criteria: (i) be sealed to prevent moisture loss or spillage to the outside of the container; (ii) be designed with compartments to separate food items for visual appeal and minimize spillage between compartments; (iii) be easy for the participant to open. (9) Holding period. Holding time for hot food shall not exceed four hours from the time when the food is taken from the equipment in which cooking or reheating is completed until it is delivered. Hot and cold foods shall be maintained at safe temperatures throughout transport. (10) Frozen, chilled, or shelf-stable meals. These meals shall be prepared and served in accordance with the Department's procedures and may be used only if the following conditions exist. (A) sanitary and safe conditions can be provided by the service provider and the participant for storage, thawing, and reheating. (B) meals can be safely handled by the participant, or by another available person when the participant is confused, frail, or otherwise disabled and unable to safely handle the meal. (11) In-house monitoring. Monitoring shall be conducted by the service provider to document that holding time, safe temperature, and quality of meals are maintained. (12) Nutrition outreach. Nutrition outreach shall be conducted with emphasis on the preferred target group as defined in sec.260.1(f) of this title. (13) Nutrition education. Nutrition education shall be provided at least once per month in accordance with the Department's procedures. A written nutrition education program plan/procedure shall be developed which outlines activities to be performed which shall include materials sent to the home, a home visit, and/or a telephone contact. (A) The plan shall address the nutritional needs of home bound seniors and be approved by a qualified dietitian or county extension agent-home and consumer scientist (home economist). (B) The content of all materials sent to the home shall be developed or distributed by a qualified dietitian, county extension agent, or other sources promulgated by the Texas Department on Aging. (C) Written documentation shall be kept of programs presented to verify that requirements are being met. (d) Requirements for Meals. (1) Dietary Guidelines for Americans and Recommended Dietary Allowances. Each meal shall comply with provisions in the Older Americans Act, Subpart 4, sec.339, relating to compliance with Dietary Guidelines and Recommended Dietary Allowances. (2) Menu Approval. Each menu cycle shall be approved as meeting requirements established in sec.270.5(d) of this title (relating to Requirements for Meals), by a qualified dietitian and documented in accordance with the Department's procedures. Provider shall develop a procedure on approval of substitutions. (3) Nutrient analysis. Nutrient analysis shall be documented in accordance with the Department's procedures. (4) Menu patterns. The standard menu pattern shall be in accordance with the Department's procedures. (5) Modified Diets. Therapeutic medical diets may deviate from the standard menu pattern as required by the participant's special needs and medical condition and be in accordance with the Department's procedures. (6) Menu monitoring. Each menu, as served, shall be kept on file for monitoring purposes. (e) Administrative Responsibilities for Nutrition/Meal Service Providers. (1) Compliance with Older Americans Act. All providers shall comply with all provisions on nutrition contained in the Older Americans Act, as amended. (2) Nutrition objectives. Objectives shall be adopted by providers which are specific, verifiable, and achievable concerning number and frequency of meals to be served, number of people to be served, and percent of minority participation. (3) Nutrition Outreach. A plan shall be developed for nutrition outreach. (4) Project advisement. Each nutrition provider shall comply with the Department's procedures concerning the Older Americans Act, sec.307(a)(13)(F), relating to project advisement requirements. (5) Compliance with laws and regulations. The nutrition/meal provider agency shall use procedures that are in compliance with all applicable state and local fire, health, sanitation, and safety laws and regulations. All food preparation, handling, and serving activities shall comply with Texas Department of Health Division of Food and Drug "Rules on Food Service Sanitation." (6) Food production. Food production shall be planned and managed through use of standardized recipes adjusted to yield the number of servings needed, and to provide for consistency in quality and documented nutrient content of food prepared. (7) Foodborne illness complaints. The provider agency shall promptly initiate investigation by local health authorities of complaints involving two or more persons with symptoms of foodborne illnesses within a similar time frame after consuming food from the nutrition/meal provider agency. Providers shall report such complaints as required in the Department's procedures. (8) Modified diets. Therapeutic medical diets for individual, specific diagnoses shall be served in accordance with the Department's procedures. (9) Weather-related emergencies, fire, and other disasters. (A) Facilities and equipment of the nutrition/meal provider agency shall be available in emergencies and disasters according to a plan that puts needy regular elderly participants as a priority. (B) The nutrition\meal provider agency shall adopt written procedures to provide for the availability of food to participants in emergencies and disasters. (10) Director of the nutrition/meal provider agency. The service provider agency shall identify an individual as director who is responsible for the overall management of nutrition services and compliance with performance requirements, standards, and procedures. (A) The director or another employee responsible for food service management shall complete the 15-hour course in food protection approved by the Federal Food and Drug Administration, or the course approved by the Texas Department of Health, or an equivalent course approved by the Texas Department on Aging as specified in the Department's procedures. (B) The course completed shall comply with local health ordinances, if applicable. (11) Staff orientation and training. Orientation for the director, staff, and volunteers shall be adequate to provide for safe, appropriate, and efficient services to the elderly, and compliance with all appropriate requirements and procedures. (A) Content of orientation and training will be in accordance with the Department's procedures. (B) All orientation and training shall be documented and kept on file for monitoring purposes. (12) Health Inspections. It is the responsibility of the nutrition/meal provider that all kitchens where food is prepared is inspected by the Texas Department of Health, or local health authority. (13) Recordkeeping and reporting. In addition to provisions in sec.270. 1(h) and (i) of this title (relating to Recordkeeping and Reporting), nutrition/meal providers shall comply with the Department's procedures. (14) Contributions. Provider shall comply with provisions in sec.270.1(j) of this title (relating to contributions), and sec.260.2(g)(2) of this title (relating to area aging fiscal responsibilities for program income for unit rate contracts). (A) Contributions shall be used only to expand nutrition services, including: (i) outreach; (ii) nutrition education; or (iii) transportation services that will increase attendance at nutrition sites. (B) The service provider agency shall accept food stamps as contributions for meals if warranted by evaluation of local need. (15) Other program income. The provider agency shall recover at a minimum the full meal cost as defined for ineligible meals for staff and guests under age 60. Payment for ineligible meals shall be receipted separately from contributions and handled the same as program income. The meal cost for purposes of cost recovery from staff and guests under age 60 shall be posted in a prominent location for guests. (16) United States Department of Agriculture assistance. United States Department of Agriculture assistance for meals served in the form of cash, and/or commodities shall be used in accordance with the Older Americans Act, sec.311, relating to surplus commodities; the United States Department of Agriculture Food Distribution Regulations, CFR 7, Part 250; the Texas Department of Human Services; and the Texas Department on Aging. All eligible meals, regardless of the funding source, shall be reported to the area agency. USDA cash shall be used to purchase only United States grown food. (f) Area Agency on Aging Responsibilities. (1) Policies and Procedures. The area agency shall develop and implement written policies and procedures for the following. (A) compliance with the Older Americans Act, sec.307(a)(13)(I); (B) conducting periodic evaluations of home-delivered meal recipients' records of assessment and reassessment to verify that eligibility criteria for home- delivered meal services are met; (C) verification that all providers comply with the Older Americans Act, sec.311 relating to surplus commodities and United States Department of Agriculture Food Distribution Regulations, 7 CFR, Part 250; that only eligible meals served by Older Americans Act funded projects are reported for USDA cash/commodity reimbursement; and that cash will be used to purchase only United States grown food. (2) Compliance requirements. Area agencies are responsible for the following. (A) compliance with the Older Americans Act, sec.307(a)(13)(A)-(K), Part C, Subpart 1, 2, 3, and 4, and sec.306(a); (B) that all meals meet requirements as specified in subsection (d) of this section, relating to requirements for meals; (C) that consistent procedures for waiting lists are used by providers and case management units; (D) that service provider agencies have made appropriate arrangements for availability of meals in weather-related emergencies and disasters; (3) Staffing for nutrition contract management duties. One or more staff or consultants shall be designated by the area agency to manage nutrition service contracts. The minimum qualification for the nutrition contract management staff or consultant shall be: (A) completion of a 15-hour course in food protection approved by the Food and Drug Administration, or the course approved by the Texas Department of Health, or an equivalent course approved by this Department as specified in the Department's procedures; or (B) a registered or licensed dietitian. (4) Monitoring. In addition to sec.260.1(e) of this title (relating to Area Agency on Aging Administration Requirements), the area agency shall comply with the Department's procedures. (5) United States Department of Agriculture direct reimbursement. (A) United States Department of Agriculture cash distribution to meal providers shall be based on a lump sum method that is based on eligible meals served. Annual settlements will be calculated at the final United States Department of Agriculture reimbursement rate times the total number of reported eligible meals served during the fiscal year; or (B) an alternative distribution method that is based on an evaluation documenting greatest need for additional services or resources, or efficient use of resources may be used by the area agency. (C) if meals are purchased through a direct purchase of service agreement with a vendor, USDA cash shall be used by the area agency to purchase additional eligible meals, as needed. (6) Direct purchase of service agreements. Such agreements may be made with vendors for meal preparation only. Other requirements contained in this section, Nutrition Service Requirements shall be the responsibility of the area agency or may be contracted separately, as appropriate. 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 22, 1994. TRD-9452739 Mary Sapp Executive Director Texas Department on Aging Effective date: January 12, 1995 Proposal publication date: September 2, 1994 For further information, please call: (512) 444-2727 Chapter 273. Transportation Service Standards 40 TAC sec.sec.273.1, 273.3, 273.5 The Texas Department on Aging adopts the repeal of sec. sec.273.1, 273.3, and 273.5, concerning transportation services standards for the elderly to relocate this section elsewhere in the Texas Administrative Code, without changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6908). Adoption of these repeals are necessary to continue the recodification of Department rules. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on December 22, 1994. TRD-9452740 Mary Sapp Executive Director Texas Department on Aging Effective date: January 12, 1995 Proposal publication date: September 2, 1994 For further information, please call: (512) 444-2727 Chapter 275. Implementation of the Omnibus Hunger Act of 1985 Statutes and Regulations 40 TAC sec.sec.275.1-275.9 The Texas Department on Aging adopts the repeal of sec. sec.275.1-275.9, concerning implementation of the Omnibus Hunger Act of 1985 as no longer germane to the operation of the Department, without changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6908). Adoption of these repeals are necessary to continue the recodification of Department rules. No comments were received regarding adoption of these repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on December 22, 1994. TRD-9452741 Mary Sapp Executive Director Texas Department on Aging Effective date: January 12, 1995 Proposal publication date: September 2, 1994 For further information, please call: (512) 444-2727 Chapter 287. Disaster Relief Activities for the Elderly Statutes and Regulations 40 TAC sec.sec.287.1, 287.3, 287.5, 287.7, 287.9 The Texas Department on Aging adopts the repeal of sec. sec.287.1, 287.3, 287. 5, 287.7, and sec.287.9, concerning disaster relieve activities for the elderly to relocate this section elsewhere in the Texas Administrative Code, without changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6908). Adoption of these repeals are necessary to continue the recodification of Department rules. No comments were received regarding adoption of these repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on December 22, 1994. TRD-9452742 Mary Sapp Executive Director Texas Department on Aging Effective date: January 12, 1995 Proposal publication date: September 2, 1994 For further information, please call: (512) 444-2727