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 13. CULTURAL RESOURCES Part I. Texas State Library and Archives Commission Chapter 6. State Records Records Retention Schedules 13 TAC sec.6.2 The Texas State Library and Archives Commission adopts an amendment to sec.6.2, without changes to the proposed text as published in the March 10, 1995, issue of the Texas Register (20 TexReg 1735). Adoption of the amendments enables state agencies to fulfill their obligations to develop and submit records retention schedules to the director of the state and local records management division of the Texas State Library under the Government Code. The amendment will permit a state agency to petition the director for permission to submit schedules for initial certification on a component by component basis in lieu of the current requirement that a single agency wide schedule must be submitted. Making this retention scheduling option available to state agencies is expected to stimulate the more rapid development of records management programs for those agencies with an organizational structure that can more easily support the development of a schedule in incremental stages. The commission received no comments regarding adoption of the amendment. The amendment is adopted under the Government Code, sec.441.037(5) and sec.441.054, which provides the Texas State Library and Archives Commission with the authority to issue rules, standards, and procedures for the efficient and economical management of state records and for the preservation of those that are essential. The Government Code, sec.441.037 and sec.441.057 are affected by the amendment. 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 May 22, 1995. TRD-9506208 Raymond Hitt Assistant State Librarian Texas State Library and Archives Commission Effective date: June 12, 1995 Proposal publication date: March 10, 1995 For further information, please call: (512) 463-5460 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 9. Liquefied Petroleum Gas Division The Railroad Commission of Texas adopts the repeal of sec.9.5 (relating to licensing requirements); new sec.9.5 (relating to licensing requirements), and sec.9.8 (relating to designation of operations supervisor (branch manager); and amendments to sec.9.4 (relating to categories of licensees), and sec.9.15 (relating to registration of LP-gas transports), without changes to the proposed text as published in the April 7, 1995, issue of the Texas Register (20 TexReg 2584). The new and amended rules provide for license and transport registration renewal dates staggered throughout the year, instead of the August 31 expiration date that all licensees currently have. Licensees will be notified in advance of their new license renewal date and will pay prorated renewal fees as required by Texas Natural Resources Code, sec.113.094. Licensees will experience a one-time higher cost for their license or transport registration renewals, but this higher cost will be offset by the longer period of time for which their licenses and/or registrations will be valid. Commission staff will also benefit by having the tremendous workload of August and September spread throughout the year. No comments were received from any groups or associations. Three individuals from the LP-gas industry submitted comments in favor of the new rules and amendments. One comment also asked if licensees with small business would be able to submit their one-time higher staggered license renewal fee in two payments to avoid financial hardship. While a payment system is not addressed in this rulemaking, the commission agrees that some small businesses may experience a financial hardship, but that the method used to stagger the license renewal dates takes this into consideration by assigning licensees with the highest renewal fees to a shorter staggered license period, therefore making their one- time higher fee as small as possible. The second individual also commented on the possibility of the commission requiring mandatory two-year training, and the third individual suggested that employee registrations also be staggered so that each company would have the same date for all its renewals. Both of these comments are beyond the scope of this rulemaking, but will be considered for possible future rulemakings. Subchapter A. General Applicability and Requirements 16 TAC sec.sec.9.4, 9.5, 9.8, 9.15 The amendments and new sections are adopted under the Texas Natural Resources Code, sec.113.094, which permits the commission to adopt rules under which LP- gas licenses expire on various dates during the year, but requires that license fees be prorated on a monthly basis during the transition from the current system to the new one. 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 May 23, 1995. TRD-9506268 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: June 13, 1995 Proposal publication date: April 7, 1995 For further information, please call: (512) 463-6949. 16 TAC sec.9.5 The repeal is adopted under the Texas Natural Resources Code, sec.113.094, which permits the commission to adopt rules under which LP-gas licenses expire on various dates during the year, but requires that license fees be prorated on a monthly basis during the transition from the current system to the new one. 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 May 23, 1995. TRD-9506269 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: June 13, 1995 Proposal publication date: April 7, 1995 For further information, please call: (512) 463-6949. Chapter 13. Regulations for Compressed Natural Gas (CNG) Fuel Systems The Railroad Commission of Texas adopts the repeal of sec.13.61 (relating to licensing); new sec.13.61 (relating to categories of licenses and related fees, and licensing requirements), and sec.13.72 (relating to designation of operations supervisor (branch manager)); and amendment to sec.13. 69 (relating to registration of CNG transport units), without changes to the proposed text as published in the April 7, 1995, issue of the Texas Register (20 TexReg 2588). The new and amended rules provide for license and transport registration renewal dates staggered throughout the year, instead of the August 31 expiration date that all licensees currently have. Licensees will be notified in advance of their new license renewal date and will pay prorated renewal fees as required by Texas Natural Resources Code, sec.116.038. Licensees will experience a one-time higher cost for their license or transport registration renewals, but this higher cost will be offset by the longer period of time for which their licenses and/or registrations will be valid. Commission staff will also benefit by having the tremendous workload of August and September spread throughout the year. No comments were received from any individuals, groups or associations. Subchapter C. Classification, Registration, and Examination 16 TAC sec.13.61 The repeal is adopted under the Texas Natural Resources Code, sec.116.038, which permits the commission, by rule, to adopt a system under which CNG licenses expire on various dates during the year, but requires that license fees be prorated on a monthly basis during the transition from the current system to the new one. 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 May 23, 1995. TRD-9506270 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: June 13, 1995 Proposal publication date: April 7, 1995 For further information, please call: (512) 463-6949. 16 TAC sec.sec.13.61, 13.69, 13.72 The amendment and new sections are adopted under the Texas Natural Resources Code, sec.116.038, which permits the commission, by rule, to adopt a system under which CNG licenses expire on various dates during the year, but requires that license fees be prorated on a monthly basis during the transition from the current system to the new one. 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 May 23, 1995. TRD-9506267 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: June 13, 1995 Proposal publication date: April 7, 1995 For further information, please call: (512) 463-6949. Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules General Rules 16 TAC sec.23.6 The Public Utility Commission of Texas adopts new sec.23.6, concerning Spanish language requirements, with changes to the proposed text as published in the December 2, 1994, issue of the Texas Register (19 TexReg 9438). The commission adopts the new section to address the need for clear communications between exclusively or primarily Spanish speaking persons and electric and telephone utilities. Each electric and telephone utility that serves a county where the number of persons speaking Spanish exclusively or primarily is 2000 or more according to the 1990 U.S. Census of Population (Bureau of Census, U.S. Dept. of Commerce, Census of Population and Housing, 1990) will be required to comply with the rule. The public benefit anticipated as a result of enforcing the rule is an improved understanding of essential utility services by exclusively or primarily Spanish speaking consumers. It should also apprise exclusively or primarily Spanish speaking customers of promotions and discount programs available to them. This information will assist in bringing informed consumers to the marketplace. Based upon the comments received in response to the proposed rule, the commission finds that it is appropriate that a written plan be in place to ensure that exclusively or primarily Spanish speaking customers are able to adequately communicate their needs and that the affected utilities are able to adequately communicate their services. The commission also notes that a need for bilingual programs by utilities has been demonstrated given the large number of utilities that already have some program in place which addresses communications with exclusively or primarily Spanish speaking customers. The affected utility must implement and maintain a written plan that demonstrates how the affected utility will do or is doing the following: inform Spanish speaking customers of the utility's plan and contents of the plan; handle complaints from Spanish speaking persons; handle billing inquiries from Spanish speaking persons; inform Spanish speaking persons of new services, discount programs, and promotions; allow access by Spanish speaking persons to prompt repair service; comply with the requirements of sec.23.45 of this title (relating to Billing) in connection with Spanish speaking persons; ballot Spanish speaking persons, for services requiring a vote by ballot; and allow access by Spanish speaking persons to services specified in sec.23.47 of this title (relating to Meters) and, inform all of its service and repair representatives of the requirements of the plan. The following parties filed initial comments in support of the proposed rule published in the December 2, 1994, issue of the Texas Register (19 TexReg 9438): Texas Low Income Housing Coalition; Office of Public Utility Counsel (OPUC); Consumers Union (CU); Mexican American Legal Defense and Educational Fund (MALDEF); Texas Rural Legal Aid, Inc. (TRLA); and, Texas-New Mexico Power Company (TNP); a letter from the following Senators in support of the rule was received on May 15, 1995: Senator Carlos F. Truan, Senator Judith Zaffirini, Senator Royce West, Senator Frank Madla, Senator Gregory Luna, Senator Peggy Rosson, Senator Mario Gallegos, and Senator Rodney Ellis; a letter from the Mexican American Legislative Caucus (MALC) in support of the originally proposed rule was received on November 14, 1994; a letter from the Mexican American Democrats of Texas (MAD) in support of the rule was received on May 16, 1995. The following commenters opposed the proposed rule: Senator John Leedom; Southwestern Bell Telephone Company (SWB); Texas Statewide Telephone Cooperative, Inc. (TSTCI); Texas Telephone Association (TTA); GTE Southwest, Inc. and Contel of TX, Inc. (GTE./Contel); United Telephone Company of TX, Inc. and Central Tel. Co. of TX (United/Centel); English First; Brazos Electric Cooperative (Brazos); Lyntegar Electric Cooperative, Inc. (Lyntegar); Nueces Electric Cooperative, Inc. (Nueces); Houston Lighting & Power (HL&P); Southwestern Public Service Company (Southwestern); Central and South West Services, Inc. (CSW Companies)[Central Power & Light (CPL); Southwestern Electric Power Company (SWEPCO); West Texas Utilities Company (WTU)]; Texas Electric Cooperatives (TEC); Wise Electric Cooperative (Wise); Bandera Electric Cooperative (Bandera); Cap Rock Electric Cooperative, Inc. (Cap Rock); DeWitt Electric Cooperative, Inc. (DeWitt); Guadalupe Valley Electric Cooperative, Inc. (GVEC); McLennan County Electric Cooperative, Inc. (McLennan) ; Bluebonnet Electric Cooperative, Inc. (Bluebonnet Electric); Pedernales Electric Cooperative (Pedernales); South Plains Electric Cooperative, Inc. (South Plains); Entergy/Gulf States Utilities Company (Gulf States); Texas Utilities Electric Company (TU Electric); South Texas Electric Cooperative (STEC); Rio Grande Electric Cooperative, Inc. (RGEC); El Paso Electric Company (EPE); Lower Colorado River Authority (LCRA); and, Concho Valley Electric Cooperative, Inc. (CVEC). Representative Susan Combs filed two letters opposing the rule, one on behalf of herself and one on behalf of a constituent. A total of 262 individuals filed written comments against the rule. Individual commenters addressed the cost of providing services to Spanish speaking customers such as extra utility mailings, translating of documents, hiring bilingual operators and service people, and establishing and maintaining extra telephone numbers and 800 services. Additionally, individual commenters asked how many more languages the PUC would ultimately demand. Finally, individuals noted that Spanish speaking services do not help anyone to learn English. The text of the rule has been amended based upon utilities' comments. Many utilities currently maintain some plan to address the communication needs of exclusively or primarily Spanish speaking customers. Therefore, there should not be a large cost associated with filing an existing plan with the commission. The section as adopted also provides flexibility for a utility to meet its obligations in the most economically efficient manner. Therefore, costs should be minimized. The Spanish language is the second most frequently used language in Texas by a significant margin over the third most frequently used language, therefore, the concern that requirements will be imposed in other languages is unwarranted. Finally, the commission's goal is simply to assure that the quality of service experienced by a utility customer does not vary because of language differences. Two individuals submitted written comments in favor of the rule. Both stated that bilingual services were beneficial. One provided geographic, demographic, and income data. The documents provided are from the U.S. Census Bureau and support the commission's conclusion that a significant exclusively Spanish speaking population exists in the State. SWB, GTE, United/Centel, TNP, Nueces, HL&P, SWEPCO, CSW Companies, Bandera, Cap Rock, GVEC, McLennan, Bluebonnet Electric, Pedernales, South Plains, Gulf States, STEC, and TU believe that a standard rule is not necessary because they currently employ some program to meet the needs of exclusively or primarily Spanish speaking customers. The commission agrees in part with these comments and has rewritten the text of the rule to allow the companies to continue with or implement a written plan that reflects the needs of their customers while requiring minimum elements in each plan submitted by utilities. There are guidelines as to the types of issues that should be addressed when implementing the written plan; however, the commission gives wide latitude to utilities as to how the problem of communication is best addressed. The MALC, Texas Low Income Housing Coalition, OPUC, Consumers Union, MALDEF, TRLA and TNP support a "system-wide" requirement. The commission agrees that an affected utility should be required to file a system-wide plan. However, the commission believes that a utility should have the flexibility to address the needs of different areas within its service territory in a different manner, as circumstances require. TSTCI commented that a provision should be included in the rule that exempts companies with 50,000 or fewer access lines and to include language allowing companies to obtain a just cause waiver. The commission does not believe that a complete exemption from the rule's requirements is appropriate for those utilities serving in counties with significant numbers of exclusively or primarily Spanish speaking persons. In the event a utility cannot comply with any or all of the elements of the rule, a provision in the rule allows a utility to submit an affidavit as to the circumstances which prohibit it from complying. Senator John Leedom, Representative Susan Combs, TEC, Wise, GVEC, South Plains Electric, and Entergy maintained that the rule as originally proposed was costly and unnecessary. The commission agrees with this contention as it applied to the original rule which was published by the commission. In response to those comments, the commission has modified its rule to grant greater discretion to utility management to implement customer service programs which are similar to those which are found in the competitive marketplace. The commission is charged to act as a substitute for competition in the marketplace when competition is absent. The commission notes that the utility industry today is still not generally a competitive environment in which a customer may select a different service provider if their language needs are not met. Therefore, the adoption of this rule is appropriate to assure that the needs of those customers, who comprise a significant segment of society, are met. Furthermore, the commission notes that in competitive markets such as long distance service, competitors have voluntarily chosen to provide multilingual marketing and billing materials. That competitive example reinforces the commission's conclusion that good customer service means providing service to all customers. Finally, the organization English First has opined that implementation of a rule allowing Spanish speaking citizens equal access to information and communication with utilities is discriminatory. Additionally, it alleges that the rule causes divisiveness among English speaking citizens and Spanish speaking citizens and that the solution for those that speak only Spanish is to learn the English language. The commission believes it is not the appropriate forum to address the social issues raised by English First, and therefore expresses no opinion on these issues. However, it is the commission's responsibility to ensure that public utilities are adequately meeting the needs of their customers, which includes the quality of service that is being offered by a utility to its customers. The commission finds that the size of the exclusively or primarily Spanish speaking population in Texas compels it to incorporate as part of its service quality responsibilities, the establishment and oversight of practices observed by utilities in providing service to exclusively or primarily Spanish speaking customers. Finally, as mentioned above, the commission's goal is simply to assure that quality of service does not vary because of language differences. All comments submitted, including those not specifically referenced herein, were fully considered by the commission. Oral comments were taken at the commission's May 16th, 1995 Final Order Meeting. This section is adopted under the Public Utility Regulatory Act of 1995 Senate Bill 319, sec.1.01, 74th Legislature, Regular Session 1995 (PURA) which provides the Public Utility commission of Texas with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, and sec.3.051 which authorizes the commission to adopt rules, policies, and procedures to protect the public interest. Cross Index to statute, article or code: PURA of 1995, Senate Bill 319 sec.1.01 and sec.3.051, 74th Legislature, Regular Session 1995. sec.23.6. Spanish Language Requirements. (a) Application. This section applies to each utility that serves an applicable county as defined in subsection (b)(3) of this section and is either a local exchange carrier (LEC), as the term is defined by sec.23.61 of this title (relating to Telephone Utilities), or a retail electric utility subject to the original jurisdiction of the commission over rates. (b) Definitions. The following words and terms, when used in this section, shall have the following meaning, unless the context clearly indicates otherwise. (1) Spanish speaking person-A person who speaks any dialect of the Spanish language exclusively or as their primary language. (2) Spanish language translation-Any dialect of Spanish that a utility reasonably believes reflects the dialect of the community it serves. (3) Applicable county-A county where the number of Spanish speaking persons (as defined in subsection (b)(1) of this subsection) is 2000 or more according to the 1990 U.S. Census of Population (Bureau of Census, U.S. Dept. of Commerce, Census of Population and Housing, 1990). (c) Written Plan. (1) Requirement. Each utility that is subject to the requirements of this section shall submit a written plan to the commission that describes how a Spanish speaking person is provided, or will be provided, reasonable access, on a system-wide basis, to the utility's programs and services. The plan must be submitted within 45 days of the effective date of this section, unless the utility is a cooperative as defined in sec.23.3 of this title (relating to Definitions) or a small local exchange carrier (SLEC) as defined in sec.23.94(b) of this title (relating to Small Local Exchange Carrier), in which case the plan must be submitted within 90 days. (2) Minimum elements. The written plan required by paragraph (1) of this subsection shall include a clear and concise statement as to how the utility is doing or will do the following, for each part of its entire system: (A) inform Spanish speaking persons who are its new or existing customers of the utility's plan and the contents of that plan; (B) handle complaints from Spanish speaking persons promptly; (C) handle billing inquiries from Spanish speaking persons promptly; (D) inform Spanish speaking persons of new services, discount programs, and promotions; (E) allow access by Spanish speaking persons to prompt repair service; (F) comply with the requirements of sec.23.45 of this title (relating to Billing) in connection with Spanish speaking persons; (G) ballot Spanish speaking persons for services requiring a vote by ballot; (H) allow access by Spanish speaking persons to services specified in sec.23.47 of this title (relating to Meters). (I) inform all of its service and repair representatives of the requirements of the plan. (d) Filing plan with commission. Each affected utility shall submit its written plan to the commission by filing the plan with the central records office of the commission. The cover page of the submittal shall indicate project number 14195 if the affected utility is a telephone utility that does not fall within the definition of a small local exchange carrier (SLEC) or cooperative as defined under sec.23.94 of this title (relating to Small Local Exchange), project number 14192 if the affected utility is an electric utility that is not a cooperative, project number 14194 if the affected utility is a SLEC or telephone cooperative, and project number 14193 if the affected utility is an electric cooperative. If the affected utility cannot comply with any or all of the elements listed under paragraph (c)(2)(A)-(I), the utility must submit an affidavit as to the circumstances which prohibit it from complying. Interested parties may file comments as to whether the plan complies with this section, no later than 30 days after the utility has filed its plan with the commission. The Office of Public Utility Counsel may submit comments concerning the utility plan no later than 45 days after the utility has filed its plan with the commission. General Counsel may submit comments concerning the utility plan no later than 60 days after the utility has filed its plan with the commission. An affected utility must respond to all comments on its plan no later than 90 days after it has filed its plan with the commission. Any interested party, General Counsel, or the Office of Public Utility Counsel may, no later than 30 days after the utility's response, initiate a docketed complaint asking the commission to impose on the utility a plan that complies with this section. If no complaint is initiated within the prescribed time, the plan shall become effective. 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 May 22, 1995. TRD-9506220 John M. Renfrow Secretary of the Commission Public Utility Commission of Texas Effective date: June 12, 1995 Proposal publication date: December 2, 1994 For further information, please call: (512) 458-0100 TITLE 19. EDUCATION Part I. Texas Higher Education Coordinating Board Chapter 5. Program Development Subchapter P. Testing and Remediation 19 TAC sec.sec.5.312, 5.313, 5.316, 5.318 The Texas Higher Education Coordinating Board adopts amendments to sec.sec.5. 312, 5.313, 5.316, and 5.318, concerning Testing and Remediation, with changes to the proposed text as published in the March 10, 1995, issue of the Texas Register (20 TexReg 1736). The amendments will put into rule form policies adopted by the Board over the past several months. Section 5.312 would define passing standard. Section 5.313 would give the expected scale scores for the ACT, SAT, and TAAS, exemptions to the TASP Test and clarify language regarding credit hours. Section 5.313(1) would give the expected scale scores on the Stanford Achievement Test for the hearing impaired that would serve deaf students in lieu of the TASP test. Section 5.316 would give the TASP test scale score requirements for passing the reading, mathematics, and writing portions of the test. Section 5.318 would clarify language regarding credit hours. One comment was received from Bee County College who agreed with raising the TASP standards, but thought we should stick with a passing standard of 220 since to change it to 230 would require reprogramming of their computers. The comments were for the concept of raising the standards but were against changing the scale scores that go with it. The agency disagreed because the board wanted a demonstrable raising of the standards, not one that might be hidden behind an unchanging scale score. The amendments are adopted under the Texas Education Code, sec.51.306, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Testing and Remediation. sec.5.312. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Passing Standard -Statewide testing standard all public postsecondary students, unless exempt, must meet or exceed on the Texas Academic Skills Program certified test form to leave state mandated remediation or to progress to upper division course work or to graduate from a Texas public postsecondary institution. sec.5.313. Eligibility. (a) Any student with at least three college-level semester credit hours accumulated prior to the fall of 1989 shall not be required to take the examination. Such credit hours must be certified as college-level by the granting institution and need not be applicable toward a degree or certificate. In addition, students who perform at or above a level set by the Coordinating Board on the American College Test (ACT), Scholastic Assessment Test (SAT) or Texas Assessment of Academic Skills (TAAS) shall be exempt from the Texas Academic Skills Program (TASP). This exemption will be in effect for five years from the date the ACT or SAT was taken and for three years from the date the TAAS Test was taken. While tests may be retaken, ACT, SAT or TAAS scores meeting or exceeding the standard set by the Board must be achieved on a single test administration. Effective fall semester 1993 and until amended by the Board, standards for exemption from the Texas Academic Skills Program (TASP) are: (1) ACT: composite score of 29, with a minimum of 27 on both the English and the mathematics tests; or, (2) SAT: combined verbal and mathematics score of 1200, with a minimum of 550 on both the verbal and the mathematical tests (prior to April, 1995); or, combined verbal and mathematics score of 1270, with a minimum of 620 on the verbal test and 560 on the mathematical test (April, 1995 and thereafter); or, (3) TAAS: A minimum score of 1,800 on the writing test, and a Texas Learning Index (TLI) of 87 on the mathematics test and 90 on the reading test. (b)-(h) (No change.) (i) Institutions may not require blind or deaf students to take the TASP Test as a condition for enrollment in an upper division course or require them to participate in remediation as a result of the test until September 1, 1995. From that point on, blind students will take the TASP Test with appropriate accommodations and deaf students will take the Stanford Achievement Test nationally normed on the hearing impaired population by Gallaudet University. Effective fall semester 1995 and until amended by the Board, minimum standards on the Stanford Achievement Test to be used in lieu of the TASP Test are: (1) Reading Comprehension-652; (2) Mathematics Total-682; (3) Language Total-662; and (4) Study Skills-663. sec.5.316. Standards. The Board shall set statewide standards for the certification form of the examination, but an institution may require higher performance standards than those set by the Board. In this case, a student wishing to transfer to an institution with higher standards may not be denied admission on the basis of TASP Test scores, but may, nonetheless, be required to meet other higher standards as determined by the institution. Effective immediately and until amended by the Board, passing scale score standards for the TASP Test are set at: effective 3/4/89-Reading-220; Mathematics-220; and Writing-220; and effective 9/16/95-Reading-230; Mathematics-230; and Writing- 220. sec.5.318. Institutional Reporting. (a)-(b) (No change.) (c) Each institution is responsible for full compliance with T.E.C. sec.51.306 and the rules adopted by the Coordinating Board. Failure to comply with the TASP statute and rules by admitting students to take semester credit hours or the equivalent who have not taken or passed the TASP Test (when applicable), or any other act or omission that results in the accumulation of semester credit hours or the equivalent in violation of the TASP statute and rules shall be a basis for disallowing those credits by audit, resulting in an adjustment of the dollar amounts of institutional funds. The funding adjustment will be based on credit hours used in the contact hours base period that have been disallowed as a result of audit. 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 March 23, 1995. TRD-9506227 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 13, 1995 Proposal publication date: March 10, 1995 For further information, please call: (512) 483-6160 TITLE 25. EXAMINING BOARDS Part II. Texas Department of Mental Health and Mental Retardation Chapter 409. Medicaid Programs Subchapter B. Contract Appeals 25 TAC sec.sec.409.31-409.44 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.sec.409.31-409.44 of Chapter 409, Subchapter B, concerning contract appeals, without changes to the proposed text as published in the March 17, 1995, issue of the Texas Register (20 TexReg 1872). The repeals are adopted contemporaneously with the adoption of new sections of Chapter 409, Subchapter B, concerning Adverse Actions, in this issue of the Texas Register. No comments were received regarding adoption of the repeals. The repeals 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 powers; and under the provisions of Texas Civil Statutes, Article 4413(502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 May 23, 1995. TRD-9506254 Ann K. Utley Chairman Texas Mental Health and Mental Retardation Board Effective date: June 13, 1995 Proposal publication date: March 17, 1995 For further information, please call: (512) 206-4516 Subchapter B. Adverse Actions 25 TAC sec.sec.409.31-409.35 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.409.31-409.35 of Chapter 409, Subchapter B, concerning Adverse Actions. Sections 409.32, 409.33, and 409.35 are adopted with changes to the proposed text as published in the March 17, 1995, issue of the Texas Register (20 TexReg 1872). Section 409.31 and sec.409.34 are adopted without changes and will not be republished. The repeal of existing sec.sec.409.31-409.44, concerning contract appeals, is published contemporaneously in this issue of the Texas Register. For consistency with other department Medicaid rules, the terms "contract" and "contractor" are changed to "provider agreement" and "provider." Language is added to sec.409.33(b) describing additional information that must be included in the notice of adverse action; in sec.409.35, stating that, after sending notice of adverse action for termination of the provider agreement, the department may not terminate the provider agreement while an administrative hearing is pending; and to sec.409.35, clarifying the conditions for withholding payments to a provider. Public comment was received from the Texas Council of Community Mental Health and Mental Retardation Centers in Austin. The commenter expressed concern that the definition of "adverse action" was so broadly defined that it would only have meaning when a reader is able to find the information about adverse actions in the rules for each of the programs in Chapter 409 of this title. The commenter provided examples of the inconsistent language within the subchapters in Chapter 409 referring to hearings, fair hearings, contracted providers, provider, provider agency, person, and adverse action. The department responds that the definition of "adverse action" was intended to be broad so that there would not be a possibility of limiting a provider's right to an administrative hearing. The department agrees with the commenter that the language in the other subchapters of Chapter 409 is inconsistent and could lead to confusion. Language established in this subchapter (i.e., "provider agreement" and "provider" rather than "contract," "contractor," and "person") will be the terms used in the other subchapters upon their revision. Additionally, the department notes that "fair hearings," referred in Subchapters D, E, F, G, and I, are conducted by the Texas Department of Human Services and are not associated with adverse actions or administrative hearings. The commenter requested retaining certain language proposed for repeal. The language addressed the responsibility of department staff to make reasonable attempts to keep providers informed of compliance issues and resolve, whenever possible, compliance issues before adverse action is necessary. The department responds that Chapter 409, Subchapter B contains the procedures addressing adverse actions after it has been determined to be necessary. Inclusion of the language requested by the commenter is inappropriate for this subchapter because it addresses action to be taken before adverse action is deemed necessary. The commenter also suggested language be included in sec.409.33(b) describing additional information that must be included in the notice of adverse action. The department responds by adding the suggested language. The commenter requested that language be added which specifically states when the department may initiate a hold on service payments in the termination of a provider agreement pending a hearing's conclusion. The department notes that sec.409.33(b) states that if the adverse action is termination of the provider agreement, then the notice must specify the dates that the department intends to begin withholding payments and to terminate the provider agreement. The department has added language stating that, after sending notice of adverse action for termination of the provider agreement, the department may not terminate the provider agreement while an administrative hearing is pending. 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 powers; and under the provisions of Texas Civil Statutes, Article 4413(502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. sec.409.32. Definitions. The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise. Administrative law judge-The attorney designated to conduct and preside over the administrative hearing. Adverse action -Any action taken or proposed by the department against a provider in which the provider may request an administrative hearing under Chapter 406 of this title, concerning ICF/MR Programs, or Chapter 409 of this title, concerning Medicaid Programs. Commissioner-The commissioner of the Texas Department of Mental Health and Mental Retardation. Days-Calendar days, unless otherwise specified. Department-The Texas Department of Mental Health and Mental Retardation (TXMHMR) or its designee. Person-An individual, partnership, corporation, association, governmental subdivision or agency, or a public or private organization of any character. Provider-Any person with whom the department has a provider agreement. Provider agreement -Any written agreement that obligates the department to pay money to a person for goods or services under the Title XIX Medical Assistance Program. sec.409.33. Notice of Adverse Action. (a) The commissioner or designee is authorized to make decisions concerning adverse action. (b) The commissioner or designee must send a provider a notice advising the provider of any adverse action. The notice is sent by certified mail, return receipt requested, unless the department determines that a more immediate form of notice is required. The notice includes a description of the basis for the adverse action, including citation of the specific rule section(s) or portion of the provider agreement with which the provider in is non-compliance and informs the provider of the provider's right to an administrative hearing to contest the adverse action. If the adverse action proposed by the department is termination of the provider agreement, then the notice must also specify the dates that the department intends to begin withholding payment and to terminate the provider agreement in accordance with sec.409.35 of this title, (relating to Withholding Provider Agreement Payments). (c) The department does not have to give a notice of adverse action with each billing transaction for areas of the department that have a large volume of bills or which routinely post debit and credit entries. The department must give a provider a notice of appeal rights any time the provider informs the department in writing of the provider's dissatisfaction with a claim transaction which is an adverse action. sec.409.35. Withholding Provider Agreement Payments. If the department proposes to terminate a provider agreement and the provider requests an administrative hearing in accordance with sec.409.35 of this title (relating to Request for an Administrative Hearing), then the department may not terminate the provider agreement before the completion of the administrative hearing. If the department intends to terminate a provider agreement, then payments to the provider may be withheld by the department pending an administrative hearing appealing the proposed termination of the provider agreement. If the final decision of the administrative hearing is favorable to the department or the provider does not make a timely request for an administrative hearing, then payments withheld will not be made by the department to the provider. If the final decision is favorable to the provider, then payments withheld will be made by the department to the provider and provider agreement payments will be resumed 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 legal authority. Issued in Austin, Texas, on May 23, 1995. TRD-9506253 Ann K. Utley Chairman Texas Mental Health and Mental Retardation Board Effective date: June 13, 1995 Proposal publication date: March 17, 1995 For further information, please call: (512) 206-4516 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part VI. Texas Commission for the Deaf and Hearing Impaired Chapter 183. Board for Evaluation of Interpreters and Interpreter Certification Subchapter E. Fees 40 TAC sec.183.573 The Texas Commission for the Deaf and Hearing Impaired adopts an amendment to sec.183.573, without changes to the proposed text as published in the April 18, 1995, issue of the Texas Register (20 TexReg 2817). The amendment includes separate fees for Intermediary candidate application and evaluation and will encourage increased participation of candidates who are deaf in the certification program through increased incentive. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, sec.81.006(b)(3), which provides the Texas Commission for the Deaf and Hearing Impaired the authority to adopt rules for administration and programs. The adopted amendment affects Texas Administrative Code, Title 40, Chapter 183, Subchapter E, sec.183.573. 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 May 22, 1995. TRD-9506255 David W. Myers Executive Director Texas Commission for the Deaf and Hearing Impaired Effective date: June 13, 1995 Proposal publication date: April 18, 1995 For further information, please call: (512) 451-8494