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 16. ECONOMIC REGULATION Part IX. Texas Lottery Commission Chapter 402. Bingo Regulation and Tax 16 TAC sec.402.567 The Texas Lottery Commission adopts new sec.402.567, concerning the bingo advisory committee. The new section is adopted with changes to the proposed text as published in November 22, 1994, issue of the Texas Register (19 TexReg 9260). The new section creates the bingo advisory committee. The language in subsection (b) of sec.402.567 concerning the composition of the bingo advisory is changed to reduce the number of members representing the general public, from three members to two members. In this same subsection, the number of members representing commercial lessors is increased from one member to two members. Those changes are made in response to comments received that expressed concerns of overrepresentation of the general public and underrepresentation of commercial lessors. Also, the language in subsection (e) is changed to make clear that committee meetings shall be open meetings in accordance with the Texas Open Meetings Act. The new section sets out guidelines for the purpose, structure, and functions of the bingo advisory committee. The purpose of the bingo advisory committee is to advise the Texas Lottery Commission on the needs and problems of the state's bingo industry; report to the Commission on the committee's activities; and perform other duties as determined by the Commission. The bingo advisory committee is composed of nine members who are appointed by the Commission. The agency received comments on the proposed rule. Many commenters supported the creation of the bingo advisory committee. One commenter suggested that each category of bingo licensees select its own representative. For example, commercial lessors should select a commercial lessor to be a member of the committee. One commenter suggested that bingo players be represented by having three members. One commenter indicated that the phrase "general public" contained in subsection (b) is too broad and urged the inclusion of a definition. One commenter suggested that the number of general public members should be reduced from three members to one member, the number of commercial lessors members should be increased from one member to two or three members, and the number of bingo distributors/manufacturers should be increased from one member to two members. One commenter suggested the rule state that the bingo advisory committee receive public comment, either through correspondence or in person at committee meetings. The groups or associations that commented in favor of adoption of the section are: For: Kiowa Tribe #33, Pomo Tribe #32, CenTex Humane Society, La Societe De Femme, Youth Benefit, Inc., Wanonah Council #3, Dakota Council 22, C. R. Clements Boys Club, Inc., Sharm, Incorporated, Amvets Post 91, Omega Tribe #38, Voiture Locale 377, 40/8, West Texas Bingo, Inc, Thompson Allstate Bingo Supply, Inc. No group or association that commented expressed opposition to adoption of the rule. The agency disagrees with the commenter who suggested that each group of bingo licensees select its own representative since the statute authorizing the creation of a bingo advisory committee requires the Texas Lottery Commission appoint the members of the bingo advisory committee. To follow this suggestion would narrow the pool of candidates, delay the process of appointing members, and frustrate the purpose of the statute. The agency disagrees with the commenter who suggested that bingo players have three members on the bingo advisory committee because the agency believes the class of bingo players falls within the category of "general public" and, as such, is represented. The agency disagrees with the comment that stated the phrase "general public" is too broad and should be defined since the statute authorizing the creation of bingo advisory committee uses this phrase and does not define the phrase. As a result, the agency believes the phrase "general public" should remain undefined and be interpreted in the broadest sense. One commenter suggested the number of general public members be reduced from three to one, the number of commercial lessor members be increased from one to two or three, and the number of distributor/manufacturer members be increased from one to two. The agency agrees, in part, with this comment. As a result, the number of general public members is reduced from three to two and the number of commercial lessor members is increased from one to two. The agency believes that a reduction of general public members from three to one would provide inadequate representation but believes that a reduction from three to two would still provide adequate representation. The agency disagrees with that portion of the comment desiring an increase in the number of distributor/manufacturer members because even though the statute does not identify this group as a category the agency believes this group should be represented with at least one member. Finally, one commenter suggested the bingo advisory committee should receive public comment, either through correspondence or in person at committee meetings. The agency believes the rule, as proposed, accommodates this suggestion if the members of the bingo advisory committee desire to receive public comment but agrees that language in the rule be revised to make clear that the committee meetings shall be held in accordance with the Texas Open Meetings Act. The new section is adopted under Texas Revised Civil Statutes, Article 179d, sec.43, which provide the Texas Lottery Commission with the authority to adopt rules to govern the operations of the bingo advisory committee. sec.402.567. Bingo Advisory Committee. (a) Purpose. The purpose of the bingo advisory committee is to advise the Commission on the needs and problems of the state's bingo industry; report to the Commission on the committee's activities; and perform other duties as determined by the Commission. (b) Composition. The following appointments shall be made representing a balance of interests: General Public-2; Charities that operate bingo games-3; Lessor, Charity-1; Lessor, Commercial-2; Distributor/Manufacturer-1. A total of nine members will be appointed by the Commission. Each member will be appointed for a one-year term and will serve at the pleasure of the Commission. (c) Officers Annually, the Commission shall appoint a Chair. Also, the Commission will appoint a vice-chair. The chair will conduct meetings and general business. The vice-chair will conduct meetings and general business in the absence of the chairperson. (d) Reports. The Committee will report, at a minimum, quarterly to the Commission on the Committee's activities, and, more frequently as deemed appropriate and necessary by the committee chairperson. (e) Meetings. The committee shall meet quarterly or at the call of the Commission. All committee meetings shall be held at the Texas Lottery Commission headquarters in Austin and be open meetings in accordance with the Open Meetings Act, Texas Government Code Annotated Chapter 551. The committee shall keep minutes of each meeting. The minutes shall be approved at the next following meeting, shall reflect all formal action taken by the committee, and shall be filed, upon approval, with the Executive Director, who is the custodian of all Commission records. (f) Attendance. The failure by any committee member to attend two consecutive regular quarterly meetings, for any reason, may be cause for removal by the Commission. No proxy voting shall be allowed. A member may not substitute another person in his/her absence. (g) Criminal History Review. All committee members must meet the criminal history standards set out in Texas Revised Civil Statutes, Article 176d, sec.13(c)(2) ("Bingo Enabling Act") to be qualified for appointment to the committee. A member who fails to meet such criminal history standards will be disqualified from serving on the committee and will be removed from the committee. (h) Compensation and Travel Expenses. A member of the committee is entitled to reimbursement for reasonable expenses. Reasonable expenses shall be limited to those expenses set out in the current Appropriations Act and shall be reimbursed in accordance with the current Appropriations Act. Committee members shall submit expenses on a form provided by the Commission and shall be accompanied by appropriate receipts. Expenses, other than expenses incurred as a result of attending the four quarterly meetings, must be submitted to the Commission for prior approval. 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 February 13, 1995. TRD-9501811 Kimberly L. Kiplin General Counsel Texas Lottery Commission Effective date: March 6, 1995 Proposal publication date: November 22, 1994 For further information, please call: (512) 323-3791 TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 401. System Administration Subchapter B. Interagency Agreements 25 TAC sec.401.59 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.401.59, concerning Interagency Agreements, with changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7873). Changes have been made to the text of the memorandum of understanding (MOU) between TDMHMR, the Texas Department of Criminal Justice (TDCJ), and representatives of local mental health and/or mental retardation authorities which is adopted in the section as Exhibit P, subsection (a). The MOU complies with the Texas Health and Safety Code, sec.614.013, which requires the signatories to describe their respective responsibilities for establishing a continuity of care and service system for offenders with mental impairments in the criminal justice system. In section one of the MOU, language has been added specifying that the provisions of the MOU are to be implemented using funds appropriated by the legislature for that purpose; similar language in section 2(k) has been deleted. In section two language relating to the MOU being required as set forth in statute has been deleted as redundant; similar language already is included in section one. In item 2(b) of the MOU, language has been deleted which specified that this agency's definitions of mental illness and mental retardation were to be followed by all signatories in matters relating to provisions of the MOU; similar language already appears in the introduction to the MOU. In addition, language in item 2(b) relating to the exchange of information without the consent of the individuals involved was deleted. The language in item 2(k) of the MOU was deleted and moved to section one. New language was added as item 2(l) which requires the signatories to provide technical assistance and professional consultation regarding services and eligibility requirements. Language was added in section 3(a) which states that in addition to specific information which is required by the MOU to be included an information base designed by TDCJ that any other types of information which may be deemed necessary by the signatories may be included. In section 4 of the MOU, language was added clarifying that TDMHMR will include a provision in contracts with community MHMR authorities and/or centers and in department rules that state funding can include screening and assessment within local jails. Language in item 5(f) has been modified to clarify that community MHMR authorities or centers shall enter into good faith negotiations with local and state criminal justice entities to contract for criminal justice system funding for persons who are not included in the TDMHMR priority population. A technical revisions in item 6(b) in which a reference to the Texas Council on Offenders with Mental Impairments is revised to read simply Council consistent with prior usage in the MOU. The MOU is required by Senate Bill 252, 73rd Legislature, as codified in the Texas Health and Safety Code, sec.614.013, and concerns Continuity of Care for Offenders with Mental Impairments. A public hearing was held on October 26, 1994, in Austin; testimony was presented by Advocacy, Inc., Austin. During the public comment period, written comments were received from Andrews Center, Tyler; Central Plains Center for Mental Health, Mental Retardation and Substance Abuse, Plainview; Denton County MHMR Center, Denton; Life Management Center for MH/MR Services, El Paso; Riceland Regional Mental Health Authority, Wharton; and Texas Mental Health Consumers, Austin. Two commenters disputed the fiscal impact statement in the proposal preamble which stated that there will be no significant fiscal impact on state government as a result of implementing the MOU. One of the commenters questioned why the fiscal note did not address the impact on local government. The department affirms the validity of the fiscal impact statement and responds that language has been added to the MOU in items 1(b), 4(f), and 5(f) reiterating that the services described are to be provided with any funds that may be appropriated by the legislature for that purpose. The department also notes that language pertaining to local government from the fiscal note was an unintentional oversight; Ms. Rose's finding was that there would be no significant fiscal impact on either state or local government as a result of implementing the MOU. Another commenter stated that there will be hidden time and resource demands on community centers which conduct assessments of persons who have not pled guilty or been tried and convicted. The department responds that the MOU specifies that these services are only to be performed with funds appropriated for that purpose, so there cannot be any hidden time or resource demands. Two commenters stated that the appropriate community center should be involved in discharge and aftercare planning when an individual is first admitted to a TDCJ facility and that contact should be maintained with that individual throughout incarceration to insure true continuity of care. The department responds that the intention of the MOU is to provide for exactly these kinds of interactions to ensure continuity of care. One commenter questioned whether TDCJ psychologists who make determinations of mental retardation will conduct the proper research to substantiate the onset before age 18. The department responds that the Texas Health and Safety Code, sec.593.004 requires that all physicians and psychologists who make determinations of mental retardation must do so using forms developed by the department. Those forms are attached to the applicable department rule, Chapter 405, Subchapter D of this title (relating to Determination of Mental Retardation for Admission to Mental Retardation Services). One commenter suggested that the MOU should address the situation of those inmates currently residing in county jails who are the responsibility of TDCJ, noting that the existence of these inmates in county jails continues to be a burden to the counties and that without specific provisions the operational aspects of this MOU may default to become a financial burden for local authorities. The department responds that these suggestions will be taken into account in the implementation phase of this MOU, but that language specifically addressing this issue is beyond the scope and intention of this MOU. A commenter questioned what type of community center staff should be anticipated to provide liaison, assessment, and aftercare services. The department responds that the training, education, and assignments of community center staff necessary to implement the continuity of care service system are expected to be very similar to that of the staff who currently provide services to a community centers clientele. Three commenters questioned who is to determine eligibility for community center services and correct diagnosis. The department responds that the purpose of the MOU is to establish a continuity of care system for this population which includes a system which provides necessary assessments and diagnostics. Nothing in this MOU requires centers to provide services to persons outside the priority population unless funds are provided by the TDCJ for that purpose. Item 5(e) of MOU requires that community centers receive referrals only for those persons who meet the priority population definition and are in need of treatment services. Additional clarifying language has been added in (f) of that item. A commenter suggested that local MHMR authorities should be permitted to make changes in the model statement of understanding. The commenter further suggested that local MHMR authorities should negotiate with their local TDCJ counterparts. The department responds that the MOU is not a model statement but rather is a statewide and systemwide agreement between two service delivery systems. Therefore, changes may not be made on a piecemeal basis by local MHMR authorities. Regarding the second suggestion, the department notes that the statute requires that the two agencies should enter into a single MOU in concert with representatives of local MHMR authorities to develop a single, statewide continuity of care system. A commenter stated that the MOU is inconsistent and potentially misleading in that it indicates no additional expense will be incurred as a result of implementing its provisions. The commenter further stated that the MOU assumes that community centers have excess provider capacity and then compel the MHMR authorities to seek federal funds. The department responds that both this agency and TDCJ are aware that the implementation of the provisions will require additional funding and note that, in fact, the statute acknowledges that the continuity of care system is to be operated with funds appropriated for that purpose (Texas Health and Safety Code, sec.614.013(e)(i)). However, no such funds were appropriated by the legislature. In addition, the requirement to seek federal grants or funds for operating of the system applies equally to TDMHMR and TDCJ, as well as the local MHMR authorities. One commenter expressed concern about the provision of appropriate support systems for this population to assure better medical followup, especially as it relates to the administration of medication. The department responds that the express purpose of this MOU is to design a continuity of care system for offenders with mental impairments so that better support systems may be developed. A commenter suggested that the MOU should clearly delineate whether the provisions apply to local jails and law enforcement agencies. The department responds that the local jails and local law enforcement agencies were not included by statute in this MOU, but that the Texas Council for Offenders with Mental Impairments (TCOMI) shall serve as the dispute resolution mechanism in the event that conflicts with the local level arise. A commenter recommended that to avoid confusion the language in the second bullet of item 1(a) be changed consistent with the statutory language in the Texas Health and Safety Code, sec.614.013(b)(2). The department responds that the potential for ambiguity is approximately equal with either word choice and that the wording of the MOU is less colloquial. Therefore, the department declines to make the change. A commenter asked what additional funding sources will be available to assist in the tracking, monitoring, and eventual provision of services under the MOU. The department responds that, at present, no additional funding has been provided by the legislature through either TDMHMR or TDCJ. Language has been added in items 1(b), 4(f), and 5(f) of the MOU to clarify that the requirements of the MOU are to met with any additional funding which may be appropriated by the legislature for that purpose. A commenter stated that item 2(a) repeats information contained in section 1 and should be deleted. The department agrees and has deleted the provision as requested. Two commenters suggested that in item 2(b) the fact that a person is incarcerated does not justify the exchange of information without the individual's consent. They also noted that in (e) and (g) of that same section the language promoting a streamlined process for obtaining consent to release information was inconsistent with the agencies' stated intent of changing the consent statutes. The department responds that the provision merely directs the agencies to seek a statutory change which would facilitate the exchange of information. The reference in proposed 2(b) to the exchange of information without consent has been deleted. TDMHMR, TDCJ, and the Texas Council on Offenders with Mental Impairments will take the comments into consideration and the appropriate advocacy and consumer organizations will be consulted as the revised statutory language is developed. Regarding the same provisions, a third commenter suggested adding language to item 2(b) and (g) to specify that exchange of information without the mentally impaired offender's consent would be permissible only if the individual had been convicted and only in psychiatric/medical emergencies. The department responds that this suggestion also will be taken into consideration as the revised statutory language is developed. One commenter recommended that the language in items 2(c) and (d) should be incorporated into item 2(k) so that it is clear that the those provisions are to be carried out "with funds appropriated for that purpose. The department recognizes the commenter's concern and has chosen to address the issue by deleting item 2(k) and incorporating the "funds appropriated for that purpose" language into new item 1(b). A commenter recommended that the standardized release of information form referenced in item 2(g) should be completed immediately upon the admission and again upon release of the individual from the services of each agency. The department responds that this suggestion will be taken into account in the implementation phase of this MOU. A commenter stated that the provisions of item 2(d), (j), (k), and (l), as well as of section 5(e) ignore or minimize the fact that accurately identifying persons with mental illness in this population is challenging and time-consuming and that no simple or inexpensive means exists of differentiating malingering and other forms of distortion from true mental illness. In addition, the commenter stated that the most experienced and best trained staff, whose time is the most expensive to bill, should be used to accurately assess a population with an obvious motivation to fake mental impairments. This, the commenter asserted, constitutes a hidden cost that is inevitable if such assessments are done carefully and properly. The department acknowledges that this process will be neither simple nor inexpensive, that there will be no hidden costs because the MOU specifically states that these functions will be performed with funds appropriated for that purpose. A commenter suggests that the contact listed required in 2(e) should include the name, address, and phone number of the contact staff by agency and county. The department agrees. A commenter suggested that the training seminar and/or educational information required in item 2(f) should be a collaborative effort in both the development of the materials as well as the actual training. The commenter further suggested that the agencies consider the use of teleconferencing technology when providing the training to result in the most effective use of funding and staff time. The department acknowledges the suggestion. One commenter stated that the "funds appropriated for that purpose," as described in item 2(k) of the MOU, need to be identified along with who is responsible for the funds and the purpose for which the funds are to be expended. The department responds that, as was explained in the response immediately preceding this one, the legislature did not appropriate any funds to implement the provisions of the MOU but did require that the continuity of care system was to be operated "with funds appropriated for that purpose." When and if funds are appropriated, it will be obvious who is responsible for expending them. A commenter commented that in item 2(m) the MOU avoids the issue of whether offenders should be prioritized for assessment and treatment by community centers, adding that the issue is particularly thorny when the mental impairment does not place the offender in the department's priority population. The department responds that the MOU specifically states that persons in the priority population are to be placed on waiting lists for services. Persons who are not in the priority population may only be served under contract with TDCJ funding. A commenter suggested that in item 3(a) the information base should break out the number of offenders by county. The department responds that the second bullet in item 3(a) does require inclusion in the information base of "the county of residence to which these individuals reside or will return to upon release from incarceration." Another commenter recommended adding language to this provision requiring that the information base contain information about the entity responsible for services in the community, suggested treatment modalities, actual services provided, the number of individuals who were offered services and refused to participate. The department responds that a fifth bullet has been added to item 3(a) requiring the inclusion of any other information deemed by TDCJ to be necessary to implement the continuity of care system. A commenter requested that a statement be included in section 4 which places the funding responsibility for the activities in this section on TDMHMR and requires the department to reimbursement the local authorities for any expenses they may incur for these activities. The department responds that language has been added in section 1 which applies to all provisions of contained in the MOU and which states that the requirements and activities described in the MOU are to be carried out with funds appropriated for that purpose. A commenter stated that waiting lists as described in items 4(e) and 5(c) and (e) for persons on parole are not acceptable as individuals in this group are more at risk and should be prioritized. The department responds that funds were not appropriated by the legislature to either TDMHMR or TDCJ for the purpose of providing services to this population. As for the suggestion that mentally impaired offenders be given priority status the department responds that at this point no statutory authority exists for prioritizing this population over other persons in TDMHMR's priority population. Another commenter questioned how community centers are to track the incarceration of individuals on their waiting lists as required by item 5(c). The department responds that the logistics of the implementation of the MOU will vary depending upon the situation in each local system. A commenter recommended that the requirements in items 5(a), (b), and (c) should be the responsibility of TDMHMR and TDCJ and that the two agencies should devise some method to electronically cross-reference the information. The department responds that the crucial information referenced in the three items is in the hands of the local authorities not the two agencies, and therefore, declines to make the suggested change. The commenter further stated that for local authorities to accomplish the requirements in these three sections would necessitate changes in workload for staff, report formats, MIS and other records management that are budget neutral. The department responds that these, as is true with all other provisions of the MOU, are to be accomplished with funds appropriated for those purposes. A commenter stated that in item 5(f) TDCJ funding for services to mentally impaired offenders who do not meet the priority population criteria should be mandatory. The department responds that while the legislature required the development of an MOU to describe the responsibilities of TDMHMR, TDCJ, and the local MHMR authorities in establishing a continuity of care system for mentally impaired offenders (Texas Health and Safety Code, sec.614.013), it did not appropriate funds to implement the system. In addition, the department notes that paragraph (e)(1) of the legislation states that the system is to be operated "with funds appropriated for that purpose." Paragraph (e)(2) of the legislation directs the entities to "actively seek federal grants or funds." Language has been added in items 1(b) and 4(f) and existing language modified in item 5(f) to clarify that continuity of care services are to be provided with any funds that may be appropriated for that purpose. Also regarding item 5(f) a commenter suggested that the language in that provisions be revised to say "engage in good faith negotiations" instead of "accept contracts from" while a second commenter suggested substituting the more permissive "receive and review" or "entertain request for." The department agrees and has modified the language to clarify that community MHMR authorities or centers shall engage in good faith negotiations Two commenters suggested in relation to 6(a) that advocates, family members, and the offenders should have a role along with the two agencies and the community centers in monitoring the implementation of the continuity of care system and should be kept informed of the outcome of the monitoring process. The department responds that language was added to the MOU specifying that the TCOMI will serve as the dispute resolution mechanism for the implementation of this MOU. Advocates, family members and offenders have open access to TCOMI meetings at which they may provide input. A commenter stated that item 6(b) is another provision which is not revenue neutral since the staff time required to collect, review, and analyze information and to prepare status reports translates into expense for the local authorities. The commenter further observed that the TDMHMR Central Office should be able to make the connection between the amount of paper produced via information gathering, analysis, and reporting and the dollars paid to produce it. The commenter suggested that this activity also be included under the statutory structure of "funds appropriated for that purpose. " The department agrees that time is money and is made aware on a daily basis that there is a connection between the paper produced in reports and the dollars necessary to produce it. Language has been added in the first section of the MOU referencing "funds appropriated for that purpose. The new section is adopted under the Texas Health and Safety Code, sec.532. 015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority; sec.614.013 of the code which requires the department to adopt the MOU by rule; and Texas Civil Statutes, Article 4413(502), sec.15 provides THHSC with the authority to review all proposed rules of health and human service agencies. sec.401.59. Continuity of Care System for Offenders with Mental Impairments. (a) The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the following Exhibit P a memorandum of understanding (MOU) with the Texas Department of Criminal Justice and local mental health and/or mental retardation authorities concerning a continuity of care system for offenders with mental impairments. Figure 1: 25 TAC sec.401.59(a) (b) The MOU is required by the Texas Health and Safety Code, sec.614.013. (c) Copies of the MOU are filed in the Office of Policy Development, Texas Department of Mental Health and Mental Retardation, 4405 North Lamar Boulevard, Austin, Texas 78756, and may be reviewed during regular business hours. 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 February 10, 1995. TRD-9501767 Ann Utley Chair, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: March 3, 1995 Proposal publication date: October 4, 1994 For further information, please call: (512) 206-4516 Chapter 406. ICF/MR Programs Subchapter B. Contracting Requirements 25 TAC sec.406.62 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts an amendment to sec.406.62, concerning contracting requirements, without changes to the proposed text as published in the December 30, 1994, issue of the Texas Register (19 TexReg 10413). The amendment reflects technical revisions. The section now directs that a request for an appeals hearing is to be submitted to the commissioner or designee instead of the deputy commissioner for management and support. In addition, references to TXMHMR are revised to read TDMHMR. A public hearing was held in Austin on January 10, 1995, to accept oral and written testimony from the public concerning the amendments and new sections. No testimony was provided concerning the amendment. No written comments were received in response to the proposal. The amendment is adopted under the Texas Health and Safety Code, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority, and under the provisions of Texas Civil Statutes, Article 4413(502), sec.16, which provide the Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 10, 1995. TRD-9501766 Ann Utley Chair, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: March 3, 1995 Proposal publication date: December 30, 1994 For further information, please call: (512) 206-4516 Subchapter E. Eligibility and Review 25 TAC sec.406.210 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts an amendment to sec.406.210, concerning eligibility and review, without changes to the proposed text as published in the December 30, 1994, issue of the Texas Register (19 TexReg 10420). The amendment reflects technical revisions which modify the procedure by which the department will reconsider requests for payment when level-of-care documentation is not current for a ICF/MR resident who is eligible for services and has received those services. The section now specifies that payment will be considered only for services delivered after January 1, 1994, and then only if the request is submitted no later than 12 months after the date the services were delivered. In addition, references to TXMHMR are revised to read TDMHMR or its agent, and a reference to rules of the Texas Department of Human Services has been revised to reference TDMHMR rules governing contracting requirements. A public hearing was held in Austin on January 10, 1995, to accept oral and written testimony from the public concerning the amendments and new sections. No testimony was provided concerning the amendment. No written comments were received in response to the proposal. The amendment is adopted under the Texas Health and Safety Code, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority, and under the provisions of Texas Civil Statutes, Article 4413(502), sec.16, which provide the Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 10, 1995. TRD-9501765 Ann Utley Chair, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: March 3, 1995 Proposal publication date: December 30, 1994 For further information, please call: (512) 206-4516 Chapter 407. Internal Facilities Management Public Records 25 TAC sec.sec.407.151-407.159 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.407.151-407.159, concerning public records. Section 407.153 and sec.409.156 are adopted with changes to the proposed text as published in the October 18, 1994, issue of the Texas Register (19 TexReg 8279). Sections 407.151, 407.152, 407.154, 407.155, and 407.157-407.159 are adopted without changes and will not be republished. The new sections fulfill the requirements of the Texas Civil Statutes, Article 6252-17a, sec.9A(b). (Section 5 of Acts 1993, 73rd Legislature, Chapter 428, effective August 30, 1993, adds sec.9A to Texas Civil Statutes, Article 6252- 17a, without reference to the repeal of said article by Acts 1993, 73rd Legislature, Chapter 268, sec.46(1).) These sections direct each state agency to adopt rules specifying the charges the agency will make for copies of public records. The definition of "readily available information" in sec.407.153 has been modified to exclude information that already exists on microfiche or microfilm. Minor clarifying language has been added to sec.407.156(a)(2)(E). The department received one public comment from Hunt County Family Services, a community mental health and mental retardation center in Greenville. The commenter expressed concern that language meant to prohibit an activity, (i.e., "may not") could be misinterpreted as permissive. The department stresses that the term "may not" was not intended to be permissive and should not be interpreted as such. (The term "may" by itself (without "not") indicates permissiveness.) For guidance, the department relies on the Texas Legislative Council Drafting Manual, Section 7.60, at 7-37 (1985), which states: "Use `may not' to denote a prohibition." The new sections are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking authority. sec.407.153. Definitions. The following words and terms, when used in this undesignated head, have the following meanings, unless the context clearly indicates otherwise. Department-The Texas Department of Mental Health and Mental Retardation. Nonstandard-size copy -A copy of public information that is made available to a requestor in any format other than a standard-size paper copy. Microfiche, microfilm, diskettes, magnetic tapes, CD-ROM, and nonstandard-size paper copies are examples of nonstandard-size copies. Readily available information-Information that already exists in printed form, or information that is stored electronically and is ready to be printed or copied without requiring any programming. Information that requires a substantial amount of time to locate or prepare for release is not readily available information. Standard-size copy -A printed impression on one side of a piece of paper that measures up to 8 1/2 by 14 inches. Each side of a piece of paper on which an impression is made is counted as a single copy. A piece of paper that is printed on both sides is counted as two copies. sec.407.156. Charges for Providing Copies of Public Information. (a) Copy charge. (1) Standard-size copy. The charge for standard-size paper copies reproduced by an office machine copier or a computer printer is $.10 per page. (2) Nonstandard-size copy. The charges for nonstandard copies are: (A) diskette-$1.00 each; (B) computer magnetic tape-$10 each; (C) VHS video tape cassette-$2.50 each; (D) audio cassette-$1.00 each; and (E) paper copy (any size larger than 8 1/2 by 14 inches) -$.50 each. (3) The charges in this subsection are to cover the cost of materials onto which the information is copied and may not reflect any additional charges that may be associated with a particular request. (b) Personnel charge. (1) The charge for personnel costs incurred in processing a request for public information is $15 an hour. Where applicable, the personnel charge should be prorated to recover the cost for personnel time spent to take requests, locate documents, and reproduce requested information. (2) A personnel charge may not be billed in connection with complying with requests that are for 50 or fewer pages of readily available information in standard-size form. (3) Personnel time may not be recovered for any time spent by the director of legal services, an attorney, legal assistant, or any other person who reviews the requested information: (A) to determine whether the department will raise any exceptions to disclosure of the requested information under Subchapter C of the Open Records Act; or (B) to research or prepare a request for a ruling by the attorney general's office pursuant to Subchapter G of the Open Records Act. (c) Overhead charge. (1) In response to a request either for information that is not readily available or for information in excess of 50 pages of readily available information, the department may include in the charges direct and indirect costs, in addition to the personnel charge. This overhead charge covers such costs as depreciation of capital assets, rent, maintenance and repair, utilities, and administrative overhead and is made in accordance with the methodology described in paragraph (3) of this subsection. (2) An overhead charge may not be made for requests for copies of 50 pages or less of readily available information in standard-size form. (3) The overhead charge is computed at 20% of the charge made to cover personnel costs associated with a particular request. For example, if one hour of personnel time is expended to respond to a particular request, the personnel charge would be $15 and the overhead charge would be $3.00. (d) Microfiche and microfilm charge. (1) Actual copies of the fiche or film. If the department has available copies of the requested information on fiche or film, then the charge to the requestor is the same as what the department paid to have that copy made. If the department does not have copies available, and the information that is on the fiche or film can be released in its entirety, then the department may have a copy of the fiche or film made and charge the requestor the cost of having that copy made. (2) Paper copies of fiche or film. If a master copy of information in microform is maintained, the charge is $.10 per page for standard-size paper plus a charge to cover any personnel time spent in making the paper copies. (e) Remote document retrieval charge. (1) Due to limited on-site capacity of storage of documents, it is frequently necessary to store information that is not in current use at remote storage locations. To the extent that the retrieval of documents results in an actual charge to the department in order to comply with a request, then the department may recover the costs of such charge. (2) Such charge shall be waived if the request is for 50 pages or fewer of readily available information in standard-size form. (f) Computer resource charge. (1) The computer resource charge is a utilization charge for computers based on the amortized cost of acquisition, lease, operation, and maintenance of computer resources, which might include, but is not limited to, some or all of the following: (A) central processing units (CPUs); (B) servers; (C) disk drives; (D) local area networks (LANs); (E) printers; (F) tape drives; (G) other peripheral devices; (H) communications devices; (I) software; and (J) system utilities. (2) Utilizing the following charges, the department shall determine which category of computer type most closely fits the one used to provide the requested information. (A) Mainframe-$17.50 per minute. (B) Midrange-$3.00 per minute. (C) Client/Server-$1.00 per minute. (D) PC or LAN-$.50 per minute. (3) The charge made to recover the computer utilization cost is the actual time the computer takes to execute a particular program multiplied by the applicable rate. The CPU charge is not meant to apply to programming or printing time; rather, it is solely to recover costs associated with the actual time required by the computer to execute a program. This time frame most frequently will be a matter of seconds. If programming is required to comply with a particular request, the appropriate charge that may be recovered for programming time is set forth in subsection (g) of this section. No charge may be made for computer print-out time. For example, the computer resource charge for a request that takes 20 seconds to execute on a mainframe system would be $5.83. (g) Programming time. If a particular request requires a programmer to enter data in order to execute an existing program or to create a new program so that the requested information may be accessed, the department may charge $26 an hour for the programmer's time. Any charge for programming time shall be prorated. Only programming services shall be charged at this hourly rate. Any personnel time spent in performing services other than programming should be charged at the rate specified for personnel as described in subsection (b) of this section. (h) Miscellaneous supplies. The actual cost of miscellaneous supplies, such as labels, boxes, and other supplies used to produce the requested information may be added to the total charge for the information. (i) Postal and shipping charges. The department may add any related postal or shipping expenses which are necessary to deliver the reproduced information to the requesting party. (j) Fax charge. The charge for a fax transmitted locally is $.10 per page. The charge for long distance transmission is $.50 per page for a fax sent within the sender's area code, and $1.00 per page for a fax transmitted to a different area code. (k) Sales tax. Sales tax may not be added on charges for public information. 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 February 10, 1995. TRD-9501761 Ann Utley Chair, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: March 3, 1995 Proposal publication date: October 18, 1994 For further information, please call: (512) 206-4516 Chapter 409. Medicaid Programs Subchapter B. Contract Appeals 25 TAC sec.409.31 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.409.31, concerning contract appeals, without changes to the proposed text as published in the January 3, 1995, issue of the Texas Register (20 TexReg 11). The section is repealed to permit of the adoption of a new section concerning general specifications which is adopted contemporaneously in this issue of the Texas Register. No comments were received regarding adoption of the repeal. The repeal is adopted under the Texas Health and Safety Code, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority, and under the provisions of Texas Civil Statutes, Article 4413(502), sec.16, which provide the Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 10, 1995. TRD-9501763 Ann Utley Chair, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: March 3, 1995 Proposal publication date: January 3, 1995 For further information, please call: (512) 206-4516 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.409.31, concerning contract appeals, without changes to the proposed text as published in the January 3, 1995, issue of the Texas Register (20 TexReg 11). The repeal of existing sec.409.031 concerning the same matters, is published contemporaneously in this issue of the Texas Register. The new section applies the provisions of the subchapter to all Medicaid programs administered by the Texas Department of Mental Health and Mental Retardation. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Health and Safety Code, sec.532. 015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority, and under the provisions of Texas Civil Statutes, Article 4413(502), sec.16, which provide the Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 10, 1995. TRD-9501764 Ann Utley Chair, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: March 3, 1995 Proposal publication date: January 3, 1995 For further information, please call: (512) 206-4516 Subchapter D. Home and Community-based Services 25 TAC sec.409.101, sec.409.103 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts amendments to sec.409.101 and sec.409.103, concerning home and community-based services (HCS), without changes to the proposed text as published in the December 30, 1994, issue of the Texas Register (19 TexReg 10446). The amendments to sec.409.101 and sec.409.103 respond to clarifications by the Health Care Financing Administration regarding written approval of individual plans of care; implement state laws requiring refinancing of residential services; incorporate changes for waiver renewal that permit reimbursement for adaptive aids and minor home modifications and to simplify the consumer enrollment process. A public hearing was held in Austin on January 10, 1995, to accept oral and written testimony from the public concerning the amendments and new sections. No testimony was provided concerning these amendments. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Health and Safety Code, sec.532. 015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority, and under the provisions of Texas Civil Statutes, Article 4413(502), sec.16, which provides the Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 10, 1995. TRD-9501762 Ann Utley Chair, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: March 3, 1995 Proposal publication date: December 30, 1994 For further information, please call: (512) 206-4516 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 3. Life, Accident, and Health Insurance and Accident, and Health Insurance and Annuities Subchapter M. Minimum Valuation Standards For Plans with Varying Nonforfeiture Benefits 28 TAC sec.sec.3.1201-3.1204 The Texas Department of Insurance adopts amendments to sec.3.1201 and sec.3. 1202, and new sec.3.1203 and sec.3.1204. Section 3.1203 is adopted with changes to the proposed text as published in the October 18, 1994, issue of the Texas Register (19 TexReg 8282). Sections 3.1201, 3.1202 and 3.1204 are adopted without changes and will not be republished. The amendments change the reserve requirement for certain annuity contracts which provide for the waiver of surrender charges if the annuitant is disabled or is confined in a nursing home or hospital. The changes clarify the section. None of the changes introduce new subject matter nor enlarge the scope of the proposal as originally published The amendments and new sections clarify the application of Subchapter M, Minimum Valuation Standards For Plans with Varying Nonforfeiture Benefits to certain annuity products with surrender charges that can be waived if the annuitant becomes disabled or is confined in a nursing home or hospital, and reduce the reserve requirements for these products. Subchapter M restricts reduction of reserves relating to surrender charges to assure the maintenance of adequate reserves. These products lack the characteristic that would allow a substantial number of policyholders to surrender their policies at the same time, therefore such products do not need to be reserved on the same basis as those that do have the characteristic that would allow all policyholders to surrender at once. Section 3.1203 has been reformatted and clarified to explain when the reduction in reserves is available to a company and to state the dates when a company must be in compliance with the new section's requirements for uniform policy form provisions as a condition to using the reduced reserve requirement. The amendment to sec.3.1201 improves clarity. The publication of the proposed text did not reflect "...or a portion of it ..." in subsection (a)(1) as new language. Section 3.1202 is amended to limit its application to life insurance contracts. New sec.3.1203 allows the reserves for annuity contracts or annuity riders attached to life insurance contracts with a provision waiving surrender charges to be calculated at a lesser amount than required by new sec.3.1204, provided that certain characteristics are met. It also requires existing, approved policy forms to be amended by June 30, 1995, and new policy forms to comply with the section by March 30, 1995. New sec.3.1204 requires reserves for annuity contracts or annuity riders attached to life insurance contracts within the scope of sec.3.1201, but under which not all the characteristics described in sec.3.1203 are met, to be computed on the assumption that the cash surrender value at every duration is the maximum guaranteed amount specified under the contract. One comment in favor of the amendments was received. Lutheran Brotherhood, a fraternal insurance company, commented. The amendments and new sections are adopted under the Insurance Code, Articles 3.28 and 1.03A. Article 3.28, sec.11, authorizes the Commissioner to adopt regulations for the computation of reserves consistent with the Standard Valuation Law when any plan of life insurance or annuity is of such a nature that the minimum reserves cannot be determined by the methods described in the Insurance Code, Article 3.28, sec.sec.6, 7 or 10. Article 1.03A authorizes the Commissioner to determine rules for general and uniform application for the conduct and execution of the duties and functions of the department. sec.3.1203. Minimum Valuation Standards for Certain Annuity Contracts and Annuity Riders. (a) Reserves for annuity contracts or for annuity riders attached to life insurance contracts that have been approved by the department prior to December 31, 1994, and that contain a provision waiving surrender charges only on the condition that the annuitant becomes disabled or is confined in a hospital or nursing home for not less than 30 days, may be calculated with a reduction for such surrender charges by establishing a separate additional reserve for the waiver of surrender charge based on tables of disability, morbidity or mortality appropriate for determining liability for the benefits provided. Such disability, morbidity or mortality tables shall be certified as appropriate by a member of the American Academy of Actuaries and approved by the department under the Insurance Code, Article 3. 28, sec.(3)(g). The insurer shall file with the department the basis of reserves for any annuity contract or annuity rider attached to a life insurance contract providing for a waiver of surrender charge along with such annuity contract or annuity rider to be considered under this section. (b) Reserves for annuity contracts or for annuity riders attached to life insurance contracts that contain a provision waiving surrender charges only on the condition that the annuitant becomes disabled or is confined in a hospital or nursing home for not less than 30 days, may be calculated with a reduction for such surrender charges by complying with paragraphs (1)-(4) of this subsection. (1) A separate additional reserve for the waiver of surrender charge is established and is based on tables of disability, morbidity or mortality appropriate for determining liability for the benefits provided. Such disability, morbidity or mortality tables shall be certified as appropriate by a member of the American Academy of Actuaries and approved by the department under the Insurance Code, Article 3.28, sec.(3)(g). The insurer shall file with the department the basis of reserves for any annuity contract or annuity rider attached to a life insurance contract providing for a waiver of surrender charge along with such annuity contract or annuity rider to be considered under this section. (2) The terms "disability," "nursing home," or "hospital," as applicable, are defined in the annuity contract or annuity rider. "Nursing home" may be defined to include a convalescent nursing home, a residential care or intermediate nursing facility. Each definition shall be at least as restrictive as the corresponding definitions in sec.3.129 of this title (relating to Acceleration of Benefits). (3) The title of the provision for the waiver of surrender charges in the annuity contract or annuity rider (when it is based solely on the annuitant's disability or confinement in a hospital or nursing home) must uniquely describe the coverage provided by the annuity contract or annuity rider. (4) The annuity contract or annuity rider shall clearly and concisely describe the requirements for disability, the conditions of care or confinement, and the proof required to substantiate eligibility for waiver of the surrender charge. (c) Previously approved forms for annuity contracts or annuity riders attached to life insurance contracts must be amended to comply with subsection (b) of this section by June 30, 1995. (d) Forms for annuity contracts or annuity riders attached to life insurance contracts that are submitted to the department for approval after March 30, 1995, must comply with subsection (b) of this section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 10, 1995. TRD-9501786 Mary Keller Senior Associate Commissioner Texas Department of Insurance Effective date: March 3, 1995 Proposal publication date: October 18, 1994 For further information, please call: (512) 463-6327