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 III. Texas Commission on the Arts Chapter 31. Agency Procedures 13 TAC sec.31.4 The Texas Commission on the Arts adopts an amendment to sec.31.4, concerning agency procedures, without changes to the proposed text as published in the May 2, 1995, issue of the Texas Register (20 TexReg 564). This amendment is being adopted to allow the Commission to conduct its business in an efficient and orderly manner. This amendment will authorize the Commission to comply with newly developed Comptroller regulation to make the grants decision in the same fiscal year in which the dollars are expended. No comments were received regarding adoption of the amendment. The amendment is adopted under Government Code, sec.444.04, which provides the Texas Commission on the Arts with the authority to make rules and regulations for its government and that of its officers and committees. 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 June 2, 1995. TRD-9506659 Rhonda L. Hill Director of Finance and Administration Texas Commission on the Arts Effective date: June 23, 1995 Proposal publication date: May 2, 1995 For further information, please call: (512) 463-5535 13 TAC sec.31.5 The Texas Commission on the Arts adopts an amendment to sec.31.5, concerning agency procedures, without changes to the proposed text as published in the May 2, 1995, issue of the Texas Register (20 TexReg 564). This amendment is being adopted to allow the Commission to conduct its business in an efficient and orderly manner. This amendment will authorize the appropriate staff and procedures to make appropriate transactions on behalf of the Cultural Endowment Fund. No comments were received regarding adoption of the amendment. The amendment is adopted under Government Code, sec.444.04, which provides the Texas Commission on the Arts with the authority to make rules and regulations for its government and that of its officers and committees. 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 June 2, 1995. TRD-9506658 Rhonda L. Hill Director of Finance and Administration Texas Commission on the Arts Effective date: June 23, 1995 Proposal publication date: May 2, 1995 For further information, please call: (512) 463-5535 TITLE 16. ECONOMIC REGULATION Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Rates 16 TAC sec.23.23 The Public Utility Commission of Texas adopts an amendment to sec.23.23, with changes to the proposed text as published in the December 13, 1994 issue of the Texas Register (19 TexReg 3410). The proposed amendments concern rate design for local transport services offered by local exchange carriers, provide definitions of terms used in the section, establish the rate elements for switched transport services and set the pricing standards for such services. The amendments also require that all local exchange telephone companies amend their tariffs to comply with the new rate design, set a time schedule for the submission of tariff filings and establish the procedure to be followed for approval of the filings. The public benefit anticipated as a result of enforcing the rule is the establishment of a rate structure that would encourage the efficient use of switched transport facilities and facilitate competition in the interexchange market as well as the intrastate access market. Switched access service which is provided by the local exchange carrier (LEC), permits interexchange carriers (IXCs) to originate and terminate intrastate long distance service and consists of three general components: carrier common line (CCL), local (or end office) switching (LS), and local transport. Switched access customers are also assessed the interexchange carrier access charge (ICAC) which is being phased out pursuant to sec.23.23(d). The CCL component reflects the charge for the use of common line facilities between the end user and the central office (end office) serving that end user. The LS component reflects the charge for the use of the local end office switching and line termination functions. The local transport component reflects the charge for the use of facilities between the access customer's premises (a Point of Presence or POP, in case of the IXC) and the end office where the switched access traffic is switched to originate and terminate the call. The local transport component of the switched access service is the subject of this rulemaking project. Currently the intrastate rates for switched access transport provided by the LECs in Texas is based upon an equal charge rate structure established by the Modified Final Judgement (MFJ) in an effort to develop competition in the long distance market. See United States v. American Telephone and Telegraph Company, 552 F. Supplement 131 (DDC 1982), judgement affected sub nom. Maryland v. United States, 103 S. Court 1240 (1983)(MFJ). The MFJ order required, until September 1, 1991, that charges for the transport of switched access traffic of the same type between end offices and facilities of IXCs shall be equal, per unit of traffic delivered or received, for all IXCs. Under the MFJ-mandated equal charge, the FCC was required to waive its Part 69 rules ordering the filing of common and dedicated transport rate elements. In its Order released on October 16, 1992, the FCC ended the waiver and adopted an interim rate structure, scheduled to expire on October 31, 1995, which consisted of a flat-rated entrance facilities and direct-trunked charge, a usage-based tandem-switched transport charge, and the interconnection charge. The FCC also initiated a Further Notice of Proposed Rulemaking to address the long-term structure of local transport. Report and Order and Further Notice of Proposed Rulemaking In the Matter of Transport Rate Structure and Pricing and Petition for Waiver of the Transport Rules filed by the GTE Service Corp., CC Docket 91-213, October 16, 1992. This Commission adopted the interstate equal charge rate structure for local transport for all local exchange carriers in Texas in Petition of the Public Utility Commission of Texas for an Inquiry Concerning the Effect of the Modified Final Judgment and the Access Charge Order upon Southwestern Bell Telephone Company and the Independent Telephone Companies of Texas, Phase I, Docket Number 5113, 13 Public Utility Commission Bull 493 (May 14, 1984). As a result of the restructure of interstate switched transport rates, the Commission believes that it is appropriate to re-examine the continued use of the equal charge rate structure for intrastate calls. Based upon the information received in this project and the record developed in Docket Number 12784, Application of Southwestern Bell Telephone Company, Contel of Texas, Inc, and GTE Southwest, Inc. to Restructure Rates and Pricing of the Local Transport and Directory Transport Categories of their Switched Access Service Tariffs, the Commission concludes that the equal charge structure should be abandoned at this time. The Commission further concludes that the rate structure currently used in the interstate jurisdiction should be adopted for use in Texas as long as the rates for intrastate service are based upon Texas-specific costs to the extent possible. The new rate structure appropriately balances the goals of allowing full and fair interexchange competition, avoiding interference with the development of access competition and encouraging efficient use of facilities through pricing that reflects Texas-specific costs. It is just and reasonable to require that all LECs in Texas revise their intrastate access tariffs to comply with this new rate design in order to meet these goals. Accordingly, the Commission adopts a rate structure in this rule for intrastate local transport which mirrors the interstate switched transport rate structure and authorizes rate levels based on Texas-specific costs. Initial comments on the proposed rule published in the Texas Register on December 13, 1994 were filed by the following: AT&T Communications of the Southwest, Inc. (AT&T); GTE Southwest Incorporated and Contel of Texas, Inc. (GTE); The Interexchange Access Coalition (IAC); MCI Telecommunications Corporation (MCI); MFS Communications Company, Inc. (MFS); General Services Commission (GSC); Office of the Public Utility Counsel (OPC); Southwestern Bell Telephone Company (SWBT); Texas Association of Long Distance Telephone Companies (TEXALTEL); Texas Statewide Telephone Cooperative, Inc. (TSTCI); United Telephone Company of Texas, Inc., Central Telephone Company of Texas and Sprint Communications Company L.P. (Sprint). Reply comments were filed by AT&T, GTE, IAC, MCI, GSC, SWBT, TEXALTEL, TSTCI, and Sprint. The Commission Staff filed an initial recommendation on April 12, 1994. Comments in response to the initial recommendation were filed by AT&T, GTE, IAC, MFS, and SWBT. All commenters supported the adoption of the restructure of switched transport rates. AT&T stated that the current equal charge rule was intended to be a temporary measure since its inception and cited the FCC's findings that the current rule promoted inefficient utilization of LEC facilities and higher rates for ratepayers. AT&T pointed out that switched transport services can be provided over facilities dedicated to a single customer ("dedicated transport") or through facilities that may serve more than one customer ("common transport"). AT&T opined that since costs of dedicated facilities do not vary with usage, economically sensible pricing policy would demand that the facilities be priced on a flat rate basis. However, under the current rule, all switched traffic is priced on an equal charge per unit of traffic and therefore as common transport, even though dedicated facilities could be used to carry the traffic, according to AT&T. AT&T contends that the lack of cost-based rates embodied by the equal charge rule has resulted in the wasteful use of LEC facilities, hampered the development of access competition and led to higher rates for long distance service customers. AT&T urged the Commission to restructure transport rates in all events, although it strongly opposed the adoption of a residual charge. MCI supported local transport restructure because it enhanced competition in the provision of access services but opposed the adoption of the residual charge. TEXALTEL opined that SWBT should be exempted from filing any rate changes to implement restructured local transport rates for such time as it is operating under any continuation of Docket Number 8585 rate freezes. IAC is an ad hoc group of nondominant IXCs that includes LDDS-Metromedia, WilTel, Cable & Wireless, LCI Communications and U.S. Long Distance. IAC claimed that there was no demonstrable need for a restructure of local transport rates noting that no convincing case for such restructure was made in Docket Number 12784 and the main beneficiary of local transport restructure, namely AT&T, has provided no evidence that the equal charge rule has materially affected its ability to compete. IAC, however, is not opposed to the adoption of the local transport restructure provided that the rates for the various transport options under the new structure reflect cost-based rate differentials and the LECs are not allowed to discriminate unreasonably between IXCs. SWBT agreed with AT&T about the need to restructure local transport rates so that LECs and their customers are not burdened with maintaining separate rate structures at the interstate and intrastate jurisdictions. SWBT also concurred with AT&T that the equal charge rule places a greater burden on AT&T than on the other carriers because AT&T uses more direct trunking than other carriers and thereby bears a greater share of the overall cost of local transport services. SWBT cited this as a reason for IAC's comment about the lack of a demonstrable need for local transport restructure (LTR). SWBT, TSTCI and GTE advocated granting LECs the ability to file intrastate switched transport tariffs that mirror interstate rate levels and structure and GTE noted the affirmation by the FCC regarding the appropriateness of the current interstate rates in its most recent order, adopted on December 15, 1994. Third Memorandum Opinion and Order on Reconsideration and Supplemental Notice of Proposed rulemaking. In the Matter of Transport Rate Structure and Pricing. CC Docket Number 91-213, December 15, 1994. TSTCI commented that the proposed amendments by permitting its member companies to mirror the rate structure implemented in the interstate jurisdiction would simplify tariff administration and reduce customer confusion related to switched local transport billing. TSTCI pointed out that the intrastate rates filed by its member companies would be at parity with the National Exchange Carrier Association (NECA) rates for interstate switched transport services. OPC supported the restructure of local transport if it included the mandatory assessment of a residual charge. In its comments to Staff's initial recommendation, SWBT questioned the appropriateness of proceeding with this rulemaking project in light of the possibility that the actions of the Texas Legislature could render the issue moot. SWBT opined that a better policy for an efficient utilization of resources would be to wait until the conclusion of the legislative session and then go forward on the rulemaking project based upon the then existing law. AT&T, on the other hand, opined that even under the current provisions of House Bill 2128, the proposed rule amendments would serve a purpose given its applicability to non-electing LECs who do not choose to file intrastate tariffs which "mirror" interstate switched access tariffs. The Commission agrees with AT&T that the equal charge rule should be changed because it offers little or no incentive to IXCs to use LEC trunking facilities efficiently. The Commission notes that the FCC set forth three goals for the implementation of local transport restructure, namely: 1) encouraging the efficient use of transport facilities by allowing pricing that reflects costs; 2) adopting a rate structure conducive to full and fair interexchange competition; and 3) avoiding interference with the development of interstate access competition. While these goals can form the basis for the evaluation of intrastate transport restructure, the Commission believes that it is important to balance the accomplishment of these goals with due consideration of state- mandated policies regarding universal service and cost-based rates. Local transport restructure accomplishes the unbundling of transport components and creates a separate charge for entrance facilities from the charge for interoffice facilities. The Commission believes that such unbundling is necessary for IXCs to have the economic incentive to seek alternative services from a competitive access provider (CAP) collocated pursuant to sec.23.92 authorizing expanded interconnection. Otherwise, under the current equal charge structure, the IXC would have to continue to pay the same amount to the LEC in addition to the charges paid to the CAP for alternative local transport services and facilities. The Commission also believes that local transport restructure is necessary to enable LECs to respond to competition in the access market and address the potential for bypass manifested in the use of special access by access customers as a form of switched access service bypass. The Commission disagrees with TEXALTEL's suggestion that SWBT be exempt from filing any rate changes during the time it is operating under any continuance of the Docket Number 8585 rate freezes. The rate cap required by Docket Number 8585 expired on November 30, 1994 and the Commission has not granted any extension or continuance of that rate cap. Although SWBT has made a commitment that it would not increase rates, subject to certain conditions, until after September 1, 1995, the Commission has not been asked to approve, and has not approved, such a commitment. SWBT's voluntary commitment that it would not seek a rate increase does not limit the Commission's authority to require implementation of the new rate structure. TEXALTEL's request is denied. The Commission agrees with SWBT that the effect of legislation should be considered in adopting this rule. The Commission has reviewed the action of the Legislature and concluded that the rule should be amended so that LECs with less than one million access lines are allowed, but not required, to file new local transport tariffs adopting the new structure. As revised, the rule is in conformance with the letter and the spirit of recently adopted legislation and is within the Commission's authority to adopt. Since the Legislature adjourned on May 29, 1995, the Commission sees no need to delay further action on the proposed rule. SWBT proposed that the definition of entrance facilities under subsection (d)(2)(F) be modified to reflect the fact that the local transport rate elements cover the facilities that establish the transmission path between two specific points in the network and not the content of the traffic or the services provided by the carrier that is purchasing local transport services from the LEC. The Commission finds that SWBT's proposed modification to the definition of entrance facilities does help clarify the meaning of the term "entrance facilities" and therefore, adopts, the recommendation. Sprint opined that the proposed language in subsection (d)(4)(F)(ii)(I) and (iii)(I) imply that a DS1 entrance facility or DS1 direct trunked transport, respectively, for instance, could be charged 24 DS0 (voice grade) equivalents times the DS0 (voice grade), or "unit of capacity rate". To the extent the intent of the proposed revision was to mirror the interstate structure as it applies to entrance facilities and direct trunked transport, Sprint suggested language that would require the charge for entrance facilities and direct trunked transport to be assessed based upon the service level ordered and require entrance facilities and direct trunked transport to be offered at voicegrade, DS1 and DS3 service levels. GSC, in its reply comments, concurred with Sprint's suggested modifications. The Commission agrees with Sprint that the language in subsection (d)(4)(F) (ii)(I) and (iii)(I) as originally proposed could be interpreted to permit the charge for one service level to be calculated as a multiple of the charge for another service level, which is clearly not the Commission's intent. The Commission adopts Sprint's suggested modifications because they spell out the Commission's intent that entrance facilities and direct trunked transport should be offered at voice grade, DS1 and DS3 service levels and that the charges should be assessed based upon the service level ordered by the customer. With respect to the proposed amendments in subsection (d)(4)(F)(ii)(II) and (iii)(II) that require rates for entrance facilities and direct trunked transport to be set no lower than 105% of the LRIC, Sprint suggested that the language be modified to clarify that LRIC studies must be performed for each service level, namely, voice grade, DS1 and DS3. GSC, in its reply comments, concurred with Sprint's suggestions. The Commission finds Sprint's modifications to be reasonable because they help clarify the Commission's policy that intrastate switched transport rates should be based on Texas-specific costs. Sprint's suggested changes are, therefore, incorporated in subsection (d)(4)(F)(ii)(II) and (iii)(II). The proposed amendments do not require centralized equal access providers to provide direct trunked transport nor assess the residual charge. TEXALTEL recommended that the provisions regarding centralized equal access providers be deleted unless there is evidence of any centralized equal access providers in Texas. If the provisions are retained, then TEXALTEL suggested that a definition of "centralized equal access providers" be added in order to prevent LECs from denying end office connections to IXCs and requiring them to purchase only tandem switched access. Under subsection (d)(4)(F)(iii)(IV), centralized equal access providers are not required to provide direct trunked transport. Furthermore, LECs are not required to provide direct trunked transport to end- offices that do not have measurement and billing capability. TEXALTEL recommended the deletion of the first sentence in subsection (d)(4)(F) (iii)(IV), contending it is duplicative because in most cases where centralized equal access is provided, LECs do not have the measurement capability in end offices and would therefore qualify for exemption from the requirements to offer direct trunked transport as set forth in the latter part of the proposed subclause. TEXALTEL contended that absent any technical impediments, LECs should be required to offer direct trunked transport. TEXALTEL also sought clarification that the proposed rules do not restrict provision of Feature Group A or B services from any central offices, with or without measurement capability. TSTCI, in its reply comments, refuted TEXALTEL's assertion regarding the absence of centralized equal access providers by pointing out that a number of TSTCI member companies provide centralized/virtual equal access to IXCs under which the equal access functionality, as in the case of Feature Group D signaling, resides in the software at the access tandem and not at the end office, thus prohibiting a LEC from providing Feature Group D direct trunk to an end office. TSTCI, therefore, urged the Commission to reject TEXALTEL's recommendation and to retain the exemption contained in subsection (d)(4)(F)(iii)(IV) which is consistent with the exemption provided by the FCC. The Commission rejects TEXALTEL's recommendation to delete the provisions related to centralized equal access providers in light of the evidence furnished by TSTCI regarding the existence of centralized equal access providers in Texas. The Commission also finds TEXALTEL's concern about the lack of a definition of centralized equal access providers to be unwarranted. Since the exemption in subsection (d)(4)(F)(iii)(IV) mirrors the exemption provided by the FCC, LECs that seek the exemption under the proposed amendments will have met the standards required to qualify as centralized equal access providers under interstate rules. The Commission disagrees with TEXALTEL that the first sentence is duplicative. The first sentence under subsection (d)(4)(F)(iii)(IV) where centralized equal access providers are exempted from providing direct trunked transport applies in cases where the LEC is a centralized equal access provider. The latter part of the provision, under which LECs are not required to provide direct trunked transport to end-offices lacking measurement and billing capability, would apply to cases where the LEC may be a centralized equal access provider or a non-equal access provider but does not have the billing and measurement capability at the end office. The Commission also clarifies that this rule does not restrict the provision of Feature Group A and B services from any central office because measurement capability is not an issue with Feature Group A and B given that these two feature groups existed prior to equal access and assumed levels of usage are used for billing purposes where there is no measurement capability. With respect to the charges applicable for the use of tandem-switched transport as proposed in subsection (d)(4)(F)(iv)(I), TEXALTEL recommended a per access minute/mile tandem switched transmission charge in addition to the proposed per access minute tandem switching charge and tandem-switched transmission charge. IAC in its comments to the initial recommendation stated that this addition is superfluous since subsection (d)(4)(F)(viii) permits the assessment of distance sensitive rates for tandem switched transport. The Commission agrees with IAC that the addition of language permitting a LEC to charge a per access minute/per mile tandem switched transmission charge is superfluous since the LECs are given the option of assessing distance-sensitive transmission charges under subsection (d)(4)(F)(iv)(III). The language in the initial recommendation suggested by TEXALTEL is, therefore, deleted. Subsection (d)(4)(F)(iv)(III) requires that mileage should be measured as airline mileage between the SWC and the end office, unless the customer has ordered tandem-switched transport between the tandem office and the end office, in which case mileage shall be measured as airline mileage between the tandem office and the end office. In order to permit more efficient network configurations, Sprint opined that in cases where the applicable mileage is the airline mileage between the tandem and the end office, a LEC should have the option to instead use the airline mileage between the serving wire center and the end office. The Commission notes that the language in subsection (d)(4)(F)(iv)(III) is consistent with the interstate rules where the access customer is offered the option to either purchase tandem-switched transport between the SWC and end offices on a per-minute basis, with the mileage measured between the SWC and the end-office or order direct-trunked transport between the SWC and the access tandem, and order tandem-switched transport between the access tandem and the end office, in which case the mileage is measured between the tandem and the end office. The Commission declines to adopt Sprint's suggestion because the provision on tandem switched transport does offer access customers the option of purchasing tandem switched transport between the SWC and the end office if they want airline mileage for tandem switched transport to be measured between the serving wire center and the end office. SWBT commented that the price floor of 105% of the LRIC for various transport options could be interpreted to constitute an appropriate level of contribution for access services, thereby conflicting with the Commission's long standing policy of recognizing the contribution made by access services to residually priced services and the LEC's joint and common costs. SWBT opined that any changes in the Commission policy regarding the appropriate level of contribution from access services should be made in the context of the pricing rule in Project Number 12771 so that the overall impact on other services is also considered. SWBT, therefore, recommended deleting the language in subsections (d)(4)(F)(ii)-(iv)(II), which sets a price floor of 105% of LRIC, and replacing it with the requirement that the rates for entrance facilities, direct-trunked transport and tandem-switched transport should recover LRIC and provide a contribution to the LEC's joint and common costs. SWBT opined that this would afford the Commission the flexibility to determine the appropriate contribution. SWBT reiterated its opposition to the price floor in its comments to Staff's initial recommendation. MFS contended that with a "backstop" mechanism such as a residual charge, the proposed price floor of 105% of the LRIC would instead effectively serve as a price ceiling, for which there is no basis in law or policy. MCI opined that the proposed amendments do not prescribe an appropriate contribution and, therefore, SWBT's suggested changes to the language for a price floor for transport rates are unwarranted, unfounded and unnecessary. The Commission finds that the concerns raised about the application of the requirement of the price floor of 105% of the LRIC for various transport options to be unwarranted. The purpose of the language in subsections (d)(4)(F) (ii)- (iv)(II) is to ensure that the minimum price for the various transport options does not fall below 105% of their individual LRICs. The Commission does not believe that the amendments prohibit the LECs from proposing rates that would provide an adequate contribution to joint and common costs, provided these rates comply with the rate relationships prescribed in subsection (d)(4)(F)(vii). Establishing minimum prices for transport options in this rule at this time in no way prevents the Commission from later reconsidering these price standards after the completion of the general pricing rule in Project Number 12771. With respect to MFS's concern, the Commission notes that the compliance tariff review process would afford parties the opportunity to argue the appropriateness of the rates if they are considered unreasonably low. The Commission, therefore, declines to adopt SWBT's suggested modifications. Subsection (d)(4)(F)(v) of the proposed amendments sets forth the requirements for the provision of dedicated signaling transport by the LECs. SWBT opined that local transport includes the services and facilities that are involved in the direct transport as well as the tandem- switched transport of switched access calls but not the signaling features of the network associated with the out-of- band signaling provided by the LECs to IXCs. SWBT contended that it would be "confusing and inappropriate" to label the signaling features of switched access as part of local transport services when Common Control Signaling (CCS) Interconnection Service is addressed in another subsection in its Access Services Tariff. SWBT, therefore, recommended that subsection (d)(4) (F)(v) as well as the definition of dedicated signaling transport under subsection (d)(2)(C) be deleted. In addition, SWBT proposed that the language relating to the provision of transport services under subsection (d)(4)(F)(i) be modified to exclude the reference to dedicated signaling transport and to include the sentence "additional rate elements may be established as appropriate for identified features and/or functions." SWBT also suggested making the provision of transport services by LECs optional. GTE opposed the provision on dedicated signaling transport on the grounds that it does not currently provide dedicated signaling transport in its intrastate tariff and should not be required to do so. MCI, in its reply comments, refuted SWBT's recommendation to delete all references to dedicated signaling transport, contending that the proposed provisions mirror the interstate rate structure and the definition for dedicated signaling transport and SWBT has not provided any reasonable basis for deviating from the FCC's rules in this regard. In Staff's initial recommendation, the language regarding dedicated signaling transport was revised to require that any LEC with existing tariffs on dedicated signalling transport should file tariff revisions to comply with the requirements in the proposed rule. SWBT reiterated its opposition to the provision regarding dedicated signalling transport by pointing out that SWBT was not required by the FCC to change its existing CCS tariffs at the interstate level when the interstate local transport restructure was adopted. SWBT contended that the proposed rate structure for signaling service differs from the interstate structure, thereby making it confusing and inappropriate to require SWBT to maintain different rate structures for its interstate and intrastate signalling services. SWBT suggested language that would revise the language in the initial recommendation so that LECs that currently provide dedicated signalling transport would not be required to retariff the service if the existing tariffed signalling service offers the interconnectivity required by this rule. In addition, SWBT proposed modification to the language in subsection (d)(4)(F)(i) under which a LEC would have to provide dedicated signalling transport only if required by the proposed rule and LECs would have the option to establish additional rate elements as appropriate. The Commission notes that requirements regarding dedicated signaling transport under this subsection are consistent with the FCC's rules on dedicated signalling transport. The Commission finds SWBT's assertion that signalling services are not part of local transport service to be incompatible with the FCC's conclusion on this issue. The FCC found common channel signalling transport between the IXC's CCS network and a LEC Signalling Transfer Point (STP) to be a form of switched transport because it is used to deliver, or facilitate delivery of, switched services. Furthermore, the signalling link and the port termination on the LEC STP was found by the FCC to constitute dedicated signalling transport since they are dedicated to the use of a single IXC. The Commission also notes that the FCC did not require LECs that already had tariffs in place for CCS transport to change their rate levels provided their rates complied with the rate structure adopted by the FCC. SWBT's concern that it would have to maintain different structures for interstate and intrastate signalling services is moot because the language regarding dedicated signalling transport under subsection (d)(4)(F)(v) mirrors the interstate rate structure. However, the intrastate rates, unlike the interstate rates, for dedicated signalling transport are required to be supported by Texas-specific costs. The Commission, therefore, rejects SWBT's recommendation to delete the provisions related to dedicated signalling transport and to modify subsection (d)(4)(F)(i). Since the Commission's intent in adopting the proposed amendments was to restructure existing tariffs on switched transport, the language in subsection (d)(4)(F)(v) has been revised to limit the application of the provision to LECs that currently provide dedicated signalling transport in order to address GTE's concern. However, any future tariffs concerning dedicated signalling transport by LECs that currently do not provide dedicated signalling transport would have to comply with the requirements in subsection (d)(4)(F)(v). TEXALTEL recommended the deletion of the language in subsection (d)(4)(F) (vi)(III) of the proposed amendments under which centralized equal access providers are not required to assess a residual charge. TEXALTEL argued that to the extent the proposed rule has permitted a residual charge, centralized equal access providers should not be exempted from this requirement given the potential for anti-competitive and discriminatory rates, if transport rates are designed without a residual charge. TSTCI concurred with TEXALTEL's recommendation to delete this paragraph and noted that elimination of this exemption would be consistent with the absence of such exemption in the interstate rules. The Commission agrees with TEXALTEL that there is no reason to prohibit a centralized equal access provider from assessing the residual charge given that the proposed rule has permitted a residual charge and the FCC has not prohibited a centralized equal access provider from imposing a residual charge. The language in subsection (d)(4)(F)(vi)(III) is, therefore, deleted. Generally, the non-LEC commenters except OPC were opposed to the adoption of the residual charge. However, they also proposed mechanisms for a phaseout of the residual charge if the Commission determined that revenue neutrality was essential. SWBT, TSTCI, and OPC supported the adoption of the residual charge for the purpose of continuing the Commission's goal of preserving and encouraging universal service. GTE, in recognition of the fact that the residual charge may not be sustainable in a competitive marketplace, advocated a resolution of the future of the residual charge in this rulemaking project. AT&T, MCI, GSC and TEXALTEL called the residual charge a 100% contribution element without function or cost. Since the proposed residual charge is designed as a make whole element to be applied to all switched access minutes, including those transported by competitors, MFS opined that LECs have every incentive to set the residual charge at the maximum allowable level. AT&T recommended the deletion of the definition of the residual charge under proposed subsections (d)(2)(M) and the calculation of the residual charge discussed in subsection (d)(4)(F)(vi). According to AT&T, the residual charge would require a LEC access customer to subsidize its competitor, the LEC. AT&T, MCI, and MFS opined that the residual charge would provide the incumbent LEC with a guaranteed source of revenues, not available to potential access competitors, thereby defeating the pro-competitive purpose of the cost-based local transport restructure. SWBT refuted these assertions by stating that any IXC can avoid the application of both the residual charge and the LEC's transport facilities charges by either using facility bypass or using special access services that circumvent the LEC's end office switching to gain access to the IXC's POP. TEXALTEL opined that SWBT is overearning and therefore does not require replacement of revenues lost due to the reduction in rates, a claim which SWBT characterized as theoretical and mere speculation. If the Commission determined that the LEC's revenues should be made whole, then TEXALTEL suggested that the LECs should be required to recover any lost transport revenues from services that are currently priced below cost. MCI opined that the adoption of the residual charge is inconsistent with the three goals set forth by the FCC as the basis for local transport restructure , which can be accomplished, in MCI's view, without revenue neutrality attained through the residual charge. TSTCI refuted MCI's assertion by pointing out that the FCC ordered the restructure of interstate transport rates on a revenue neutral basis. OPC, SWBT and TSTCI noted that the residual charge mirrors the interconnection charge adopted by the FCC in its interim local transport restructure. OPC opined that revenue neutrality for switched transport services was critical in ensuring the recovery of Commission-approved revenue streams in each LEC's last rate case. In OPC's view, in the absence of revenue neutrality, LECs could attempt to shift costs and recover lost revenues as a result of switched transport restructure from captive residential and small business ratepayers and thereby undermine the Commission's policy of universal service. OPC and SWBT pointed out that the proposal for decision in Docket Number 12784 recommended adopting the residual charge, as part of an alternative recommendation pending a thorough examination of the costs and policy goals behind the residual charge. OPC urged the Commission to adopt restructure of local transport only if it included the mandatory assessment of a residual charge. AT&T argued that if a LEC received reduced revenues due to the restructure of local transport rates, it does not follow that the LEC's returns will become unreasonably low, especially if volumes and revenues from other LEC services, including new services, increase. In AT&T's view, if a LEC concluded that the restructure of local transport rates without a residual charge has caused its return to become unreasonable, then the LEC has procedures available to request rate increases by proving its case and persuading the Commission to increase other rates. AT&T noted that none of the LECs in their initial comments contended that, without the residual charge, their rates of return will be in jeopardy nor was there a credible showing that universal service would be harmed. SWBT commented that the LECs would be faced with a substantial revenue shortfall ($80 million annually for SWBT alone) which would have to be recovered from other sources. SWBT contended that one of the principal beneficiaries of the LEC revenue reductions and the restructure of local transport rates would be AT&T, based upon its network efficiencies, who would be under less pressure to pass any cost savings on to its end-users since its competitors would be faced with higher costs under the new structure. SWBT recommended that the residual charge should be approved to maintain the integrity of the LEC revenue streams and should be continued until there is a comprehensive restructuring and rebalancing of all intrastate rates. The Commission notes that the FCC adopted the residual charge as a transitional measure to avoid dislocations due to the recovery of transport costs. However, the Commission also notes that the FCC recognized the need to identify the costs included in the residual charge and then determine the appropriate regulatory treatment for such charge, as the access marketplace becomes increasingly competitive. The Commission shares the FCC's assessment in this regard. Therefore subsection (d)(4)(F)(vi) establishes only an initial residual charge and thereby does not authorize the permanent approval of the residual charge. AT&T stated that in the event the Commission adopts a residual charge mechanism, then it should be capped at 1994 revenue levels and be phased out so as to expire when prices are set based on TSLRIC studies under sec.23.91(g) but no later than two years. GTE termed AT&T's suggestion for a cap on transport revenues at the 1994 levels as an arbitrary and unnecessary regulatory constraint on LECs and argued that customers and new entrants in the access markets should be able to base their decisions on prices resulting in a competitive marketplace. If the residual charge is retained, then MCI recommended that the residual charge be phased out over a brief period of time or, at a minimum, the residual charge should be capped. TSTCI opined that after the establishment of an initial residual charge, the future application of the residual charge should be determined during subsequent rate reviews for a LEC. Sprint suggested that the level of the residual charge and all other subsidies embedded in access rate elements should be addressed in a subsequent proceeding. In the event that the Commission determined revenue neutrality to be in the public interest, IAC and TEXALTEL opined that it was crucial to ensure the recovery of any subsidy amounts in a completely neutral manner to reduce any potential for discrimination and abuse in the pricing of local transport options. In its comments to Staff's initial recommendation, MFS recommended that the amount of residual charge should be limited to 75% of each LEC's 1994 local transport revenues divided by its 1994 local transport minutes of use with the remaining 25% of the 1994 revenues being recovered through all other transport rate elements. TEXALTEL commented that there was only a temporary and transitional need for a residual charge, at best, in order to avoid the adverse impact on other rates as a result of the huge reduction in LEC revenues caused by the local transport restructure. Comparing the residual charge to the ICAC rate, established in 1984 as a temporary rate which was phased out by the Commission after ten years, TEXALTEL urged the Commission to designate the residual charge as temporary and to address its ultimate fate in this rulemaking proceeding. TEXALTEL opined that linking the phase out period for the residual charge to the completion of the costing and pricing proceedings would permit informed decisions about necessary rate changes for other services. SWBT objected to TEXALTEL's comparison of the ICAC to the residual charge given the differences in the origin of the ICAC and that of the residual charge. SWBT stated that the ICAC, which was adopted by the Commission in lieu of an intrastate EUCL, was truly a subsidy element, designed to replace the subsidy historically provided by intrastate interLATA toll service to local service. SWBT characterized the residual charge, on the other hand, as "a redistribution of the recovery of the expenses and investments associated with the delivery of Local Transport services to the IXCs." GTE opined that the residual charge, not being a cost-based rate, is not sustainable in a competitive environment and therefore urged the Commission to specify the process in the proposed amendments whereby the residual charge is phased out of access services and recovered from basic exchange services. GTE suggested three scenarios as guidelines for the transition of residual charge for all LECs. Under the first scenario, if the amount of increase in basic monthly local exchange service required to offset the residual revenues exceeded $3.00 per line per month and the percentage increases in average residential basic monthly exchange service required was over 20 %, then the transition period for the residual charge would be four years. Under the second scenario, if the amount of increase in basic monthly local exchange service required to offset the residual revenues exceeded $2.00 per line per month and the required increase in average residential basic monthly exchange service rate was between 12% and 20%, then the residual revenue transition period would be three years. Finally, if the residual revenue per line per month was less than $2.00 or if the percentage increase in the average residential rate required amounted to less than 12%, then the residual revenues would be transitioned over two years. Sprint supported the GTE/Contel plan because it would lower toll rates as well as freeze the residual revenues on a going forward basis ensuring that the LEC would not receive additional revenues associated with toll growth. AT&T, on the other hand, contended that GTE's proposal advocating an increase in basic local rates concurrent with the phase-out of a residual charge is based on the unsubstantiated assumption that such an increase is needed in order to keep its return at a reasonable level, and therefore should be rejected by the Commission. IAC stressed the importance of ensuring that any revenue shortfall during the phase out period is recovered through other services such as basic exchange services rather than through changes in the prices of interoffice transport elements. GSC opined that the issue of revenue neutrality should be addressed in either an overall rate case, or in the Pricing rulemaking project, instead of on a piecemeal basis. Recognizing that the new rate structure was an attempt to promote competition, GSC views the residual charge as a temporary proposal to be deleted with the adoption of the pricing rule. GSC therefore suggested that additional language be added to subsection (d)(4)(F)(vi) such that the residual charge would not be applicable for LECs that have a final order in a rate case after the effective date of the rule. In its comments to the initial recommendation, AT&T noted that although the proposed rule amendments seemed to imply that the residual charge will disappear when the Commission's pricing rule is implemented, it is necessary to establish a date certain in the rule for the elimination of the residual charge. AT&T, therefore, suggested language which would eliminate the residual charge completely by April 1, 1997 or upon the date the Commission's pricing rule is implemented, whichever date occurs earlier. The Commission believes that the elimination or phase out of the residual charge without appropriate examination of the costs and the policy goals underlying the residual charge would be premature. The Commission agrees with OPC that the residual charge supports the universal service goal because a reduction in transport revenues will reduce the level of contribution provided by transport services to joint and common costs. Absent any evidence that such a reduction is warranted, the result, as shown by GTE's comments, could be an increase in local exchange rates to recoup the unrecovered transport costs. The Commission, therefore, declines to adopt suggestions to eliminate or phaseout the residual charge. The Commission notes that the cost studies performed pursuant to sec.23.91 and the pricing guidelines resulting from the pricing rule in Project Number 12771 will reveal the appropriate costs and contribution to be recovered from the various transport services. The need to continue with the residual charge in its entirety, or in part, or not at all could then be reexamined. The Commission, therefore, declines to adopt AT&T's suggestion to link the elimination of the residual charge to the pricing rule or to a date certain. With respect to setting caps on the transport revenues, the Commission finds that such a cap is unwarranted under a restructure of local transport given that transport revenues would not be capped if the current equal charge structure is retained. The Commission also disagrees with GTE's request to establish a procedure to eliminate the residual charge while simultaneously increasing basic monthly local exchange service rates. In addition to being inappropriate because of the lack of cost information as stated above, GTE's proposal is far outside the scope of this project. This project concerns the rate design for local transport service. Including changes to basic local exchange service rates would be in violation of the Administrative Procedure Act and the decision in State Board of Insurance v. Deffebach, 631 S.W. 2d 794 (Texas App-Austin 1982, writ ref'd n.r.e.). Sprint recommended that in calculating the residual charge, the phrase "total intrastate switching access minutes" be replaced by "total intrastate local switching access minutes" in order to clarify the appropriate unit of measure for determining the per minute residual charge. In the interest of keeping the residual charge separate from the other access rate elements, Sprint recommended the addition of language prohibiting the LEC from adjusting other switched access rate elements for the specific purpose of changing the level of the residual charge. The Commission finds that Sprint's proposed modification does help clarify the appropriate unit of measurement for purposes of calculation of the residual charge and is, therefore, adopted. However, the Commission rejects Sprint's recommendation regarding the need for language to prohibit the LEC from changing the level of residual charge. The Commission believes that such a prohibition is unnecessary because the rule establishes only an initial residual charge and thereby effectively prevents the LEC from adjusting other switched access rate elements for the specific purpose of changing the level of the residual charge. SWBT commented that the proposed language in subsection (d)(4)(F)(vi)(I) implies that the residual charge will be assessed on every person and entity that interconnects with the LEC's switched access network in some fashion including every IXC, LEC, cellular carrier, enhanced service provider, as well as long distance business and residential customers. SWBT recommended modifications to subsection (d)(4)(F)(vi)(I) that would prohibit the application of the residual charge to customers and entities who interconnect to the LEC's switched access network and where the residual charge has already been paid to the LEC for such interconnection. In addition, SWBT proposed the deletion of the requirement that the residual charge be assessed on a per access minute basis as well as suggested language to make the application of the residual charge optional. IAC disagreed with SWBT's recommended deletion of the requirement that the residual charge be assessed on a per access minute basis, stating that the requirement is essential to ensure the competitive neutral application of the residual charge. In order to clarify the intent of subsection (d)(4)(F)(vi)(I) which is to ensure that the residual charge is not imposed twice on the same minute of use, AT&T suggested substitute language for clause (vi)(I) in the initial recommendation to the effect that "the LEC shall assess only one Residual Charge (RIC) for each local switching access minute of use sold to those customers interconnecting with the LEC's switched access network by ordering from the LEC's access tariff." The Commission agrees with SWBT that the language in subsection (d)(4)(F) (vi) may be misinterpreted to require the assessment of the residual charge more than once on the same minute of use and on every person and entity that interconnects with the LEC's switched access network, which is clearly not the Commission's intent. SWBT's suggested language which would prohibit the application of the residual charge to customers and entities who interconnect to the LEC's switched access network where the residual charge has already been paid to the LEC for such interconnection, was therefore, incorporated in Staff's initial recommendation. After reviewing AT&T's suggested language, the Commission finds that AT&T's recommendation better clarifies the Commission's intent and therefore, adopts AT&T's suggested modification. The Commission rejects SWBT's proposal to delete the requirement that the residual charge be assessed on a per access minute basis as well as its proposal to make the application of the residual charge option, in light of the fact that SWBT failed to provide any explanation for its suggestions and the Commissions finds the modifications to be unnecessary. Under subsection (d)(4)(F)(vii) as originally proposed, the ratio of the rates of DS1 direct-trunked transport and DS3 direct-trunked transport could not exceed the ratio of the LRICs of the respective transport options and the ratio of the rates of tandem switched transport and DS1 direct-trunked transport could not exceed the ratio of the LRICs of the respective transport options (hereafter, referred to as the "proportional" contribution method). In the preamble, the Commission also requested comments on the appropriateness of requiring that the rate differences between tandem-switched transport, DS1 direct-trunked transport and DS3 direct-trunked transport respectively, on an equivalent unit of capacity basis, should be no higher than the difference in the LRIC for each transport option (hereafter, referred to as the "equal" contribution method). IAC opined that both the "proportional" and the "equal" contribution approaches are superior to a policy of unrestricted pricing flexibility because the pricing of transport options in the "proportional" and "equal" contribution approaches have a cost basis and the recovery of contribution is based upon a objective and verifiable standard. However, IAC did not find the two approaches to be interchangeable from a policy perspective. IAC contended that in either case, it is appropriate to use the LEC's pricing of DS3 services as a baseline in developing DS3:DS1 rate ratios because incremental costs, upon which the rates should be based, are estimated on a forward looking basis and therefore should reflect use of 100% fiber (DS3) rather than a copper-fiber mix (DS1). When setting prices for DS3, DS1 and tandem-switched transport options, IAC explained that under the "proportional" contribution approach, all IXCs would pay the same amount of contribution per dollar spent on transport while under the "equal" contribution method, IXCs would be charged the same amount of contribution per equivalent unit of capacity for the three transport options. IAC and TEXALTEL contended that the "proportional" contribution method was flawed because large customers of access transport would receive an "unearned" substantial discount on their contribution to joint and common costs which would have a substantially disproportionate and detrimental impact on the profitability of smaller IXCs, given that the profit margins of small IXCs are extremely small-on the order of a few tenths of a cent per minute. IAC, TEXALTEL, Sprint and GSC advocated the adoption of the "equal" contribution approach. IAC argued that the issue of appropriate rate relationship is critical because the contribution to joint and common costs could account for an unusually large portion of the prices for each transport option and that almost, by definition, joint and common costs are caused equally by all transport customers. GTE refuted IAC's assertions stating that there is no relationship between customers and common costs and, therefore, common costs are not caused equally by all customers. TEXALTEL opined that switched access constitutes over 50% of an IXC's business costs and, therefore, the differences in the rates between the various transport options assumes tremendous competitive significance when a material difference in transport costs is reflected in the prices charged to consumers for toll service by IXCs. TEXALTEL commented that existing equal charge rate structure may have encouraged IXCs to order excess capacity because IXCs are charged only for minutes used, and not for capacity ordered and a restructure of local transport rates, on the other hand, would incent more efficient use of facilities because rates are charged both for capacity ordered as well as minutes actually carried. TEXALTEL, however, contended that unreasonable differences between DS1, DS3, and tandem switching rates would instead create more inefficiencies and encourage IXCs to order more DS3s than necessary. SWBT commented that inflexible rate ratios would effectively limit future proceedings on local transport solely to issues related to cost studies and the cost information could be used by IXCs who are both customers and competitors of LECs to develop niche markets and thereby undermine the LEC's ability to compete. In SWBT's view, the suggestions by smaller IXCs that the differences in rates be based solely upon the differences in costs could ultimately have detrimental consequences for the smaller IXCs. SWBT explained that the interstate tandem switched transport rates were developed assuming an 80/20 mix of fiber to copper in the inter-office transport and tandem usage of 9,000 minutes of use. Since the amount of fiber actually used in the network is not uniformly distributed with copper being used as a transmission medium to the rural and outlying end offices and the tandem usage of some smaller IXCs amounting to less than 9000 minutes of use, the reflection of the actual fiber/copper mix and tandem usage in the cost studies required by the proposed amendments could result in higher rates than the interstate rates for tandem- switched transport rates. SWBT contended that the FCC in developing interstate rate relationship between DS3 and DS1 recognized the differences in costs associated with multiplexers and optical circuit equipments used in providing DS1 and DS3 transport options and the less than full utilization of a DS3 facility. GTE refuted IAC's claims that AT&T purchases only DS3 transport, MCI and Sprint use a combination of DS3, DS1 and tandem-switched transport and IAC members use only tandem switched transport by pointing out that in its operating territory, approximately 50% of all access minutes are transported via dedicated facilities and a significant portion of every carrier's traffic is switched at a tandem. GTE commented that the FCC reaffirmed its position regarding the inappropriateness of rigid benchmarks and mandatory rate relationships for the three transport options in its December 15, 1994 Order on the grounds that a single industry-wide ratio of Des and DS3 rates would not be an accurate reflection of cost differences for all LECs and such a ratio would be subject to change as technology changes the relevant cost factors. SWBT and GTE also noted the FCC's conclusion in the same Order that smaller IXCs are strong and growing competitors in the interexchange market based on the evidence that the small IXCs experienced a higher annual growth rate (23.2%) compared to MCI and Sprint collectively (7.5%) and AT&T (3.2%), for the period ending with the third quarter of 1994. IAC refuted GTE's assertions by pointing out that the FCC's conclusion regarding non-discriminatory interstate local transport rates were applicable to the transport rates taken as a whole and no determination with respect to Texas was made by the FCC. IAC found the conclusion contained in the proposal for decision in Docket Number 12784 to be more pertinent to Texas. IAC quoted the conclusion in the proposal for decision in Docket Number 12784 wherein the competitive impact of local transport restructure, as proposed by SWBT and GTE, was found to be unreasonably disproportional on the smaller and medium-sized IXCs. Moreover, IAC opined that if the FCC's discrimination analysis focused on individual rate elements of switched access services, instead of interstate switched access rates as a whole, the rate discrimination between small and large IXCs would amount to nearly ten times greater than the figure relied upon by the FCC. IAC also argued that data taken from the first three-quarters of 1994 for purposes of growth comparisons was misleading because IXCs were only beginning to restructure their networks under the new transport restructure. The Commission notes that the equal charge structure was established for the sole purpose of promoting competition in the interexchange market. The equal charge rule did not address access competition because such competition did not exist at the time the equal charge rule was first put in place. In adopting a restructure of local transport rates, the FCC's objective to balance the competition in the interexchange market and emerging access market is reflected in the goals set forth by the FCC for the implementation of local transport restructure. The Commission concurs with the FCC's objective in this regard. The Commission agrees with IAC and TEXALTEL that in the absence of some pricing guidelines in the form of rate relationships, large access customers could receive substantial discounts in their contribution to joint and common costs which could have a detrimental impact on medium and smaller IXCs, given that switched access constitutes over 50% of an IXC's business costs. However, the Commission finds that the equal contribution method recommended by IAC, Sprint, GSC and TEXALTEL focuses only on fostering competition in the interexchange market and ignores the need to promote competition in the access market. The Commission disagrees with IAC that joint and common costs are caused equally by all customers. The Commission believes that there is no causal relationship between joint/common costs and customers and that, furthermore, contribution provided by services to joint and common costs are determined by policy considerations. While IAC and TEXALTEL make a good case for not allowing LECs unrestricted pricing flexibility, the Commission agrees with GTE that marketplace dynamics in the emerging access market would result in prices that recover a wide range of contribution to joint and common costs. The issue then becomes one of permitting reasonable discrimination in the levels of contribution recovered in the rates of the various transport options. MFS contended that competition would be excluded rather than promoted if the LECs are allowed to price their potentially competitive transport services at (or close to) incremental cost and then a new bottleneck rate element, namely, the residual charge is created to guarantee full recovery of all shared and common costs without competitive risk. MFS recommended that initial dedicated transport rate elements be set at the same rate levels as the rates for comparable intrastate special access services (voice grade and DS1), with tandem-switched transport rates derived from the direct-trunked rates based on estimated usage. In recognition of the fact that LECs may not have generally tariffed rates for intrastate DS3 special access services, MFS suggested that DS3 switched transport rates for entrance facilities and dedicated signaling transport should be presumed reasonable if the ratio of the proposed intrastate DS3 to DS1 rate is not less than the ratio of the LEC's comparable interstate DS3 to DS1 rate. MFS opined that the transport rate ratio as set forth in subsection (d)(4)(F)(vii) would determine the DS3 to-DS1 ratio for the direct trunked transport. LECs desiring pricing flexibility for local transport rates should request such flexibility pursuant to sec.23.27, but should not be permitted to increase the residual charge to offset their price reductions, according to MFS. Calling its current special access rate structure archaic, TSTCI opined that if the Commission adopts MFS's recommendation and requires LECs to mirror their intrastate special access rates in setting the initial dedicated transport rate elements, then TSTCI member companies should be given an opportunity, as part of their transport restructure tariff filings, to update their intrastate special access rates and rate structure to mirror their current interstate special access rates and rate structure. GTE stated that MFS's proposal created artificial pricing umbrellas for LEC competitors and opined that the price floor should be set at the LRIC and the price ceiling should be dictated by the competitive marketplace. SWBT objected to the "proportional" contribution approach embodied in subsection (d)(4)(F)(vii) stating that it essentially codifies the rate relationship based solely upon LRIC while ignoring any other appropriate factors. GTE and SWBT advocated the need to grant LECs the option to mirror interstate rates, if necessary. GTE also objected to the "equal" contribution approach on the grounds that the marketplace dynamics results in prices which recover a wide range of contributions to overheads. SWBT and GTE asserted that rigid rate relationships ignore the realities of the competitive marketplace for transport services and if the rate ratio as originally proposed is adopted, they opined that the Commission would have prejudged the reasonableness of the "proportional" contribution method without hearing any additional evidence. SWBT opined that in order to provide the Commission with sufficient flexibility to consider various pricing policies that could promote the public interest, the language in subsection (d)(4)(F)(vii) should be modified to remove any references to the appropriate rate relationships between the various transport options other than to state that such rate differences should be reasonable. IAC disagreed with GTE and MFS's proposal that LECs be permitted to set intrastate transport rates at parity with interstate transport rates, citing the conclusion in the proposal for decision (PFD) in Docket Number 12784 that parity was not appropriate because the FCC did not consider any cost information related to the provision of switched transport services. IAC opined that if the Commission merely required that the rate relationship be reasonable without further guidance as to what reasonableness means, then the LECs are likely to propose rates similar to the ones in Docket Number 12784 which the PFD found unreasonable and rejected. IAC, therefore, urged the Commission to provide specific pricing direction to LECs at this time. AT&T and MCI opined that the proposed "proportional" contribution approach is adequate since it attempts to instill a cost-based relationship between the rates for the various transport options. SWBT commented that IXCs buy interconnection speeds when they buy DS1 and DS3 services which are then provisioned by LECs in the manner the LECs believe appropriate as long as the service meets the technical specifications. SWBT opined that DS1 and DS3 are in fact different services and therefore the rates for each of the services should be based upon factors that are relevant for that service and not how it relates to other services. SWBT also contended that if LECs are not allowed to set intrastate rates at parity with the interstate rates, then the lack of parity would provide incentives for IXCs to misreport the minutes of interstate use to take advantage of lower intrastate DS1 rates and thus opportunities for tariff arbitrage would be created. SWBT also contended that DS1 and DS3 services are viewed as distinct services by customers and in pricing DS3 and DS1 services, the LECs should be allowed to take advantage of long term contracts for DS3 services which offer LECs greater flexibility in network planning while the use of DS1 circuits do not offer the same flexibility and certainty for the LECs. The Commission rejects the suggestions by SWBT and GTE that LECs be allowed unrestricted pricing flexibility and the ability to mirror interstate rates, if necessary. The Commission finds that the interstate rates are not an appropriate basis for setting intrastate rates because the FCC did not conduct any cost investigation of the switched transport options and, therefore, declines to adopt SWBT, GTE and MFS's conclusion that LECs be allowed to set intrastate rates at parity with interstate rates. The Commission believes that DS1 and DS3 transport options are essentially the same service operating at different traffic volumes and speed and, therefore, rejects SWBT's assertion that rate relationships ignore customer's perceptions of these transport options as different services. In light of the fact that the intrastate rates for the other two components of switched access, namely, CCL and local switching, are not set at parity with their interstate rates, the Commission rejects SWBT's assertion regarding the need to maintain parity for transport rate elements in order to avoid tariff arbitrage. The Commission, therefore, declines to adopt SWBT's recommendation to limit the language on rates for the various transport options to merely state that the rates should be reasonable. In the event the Commission elected to adopt the "proportional" contribution method, IAC and TEXALTEL suggested that the prices of the three transport options be capped at a certain percentage of LRIC. IAC and TEXALTEL proposed price ceilings of 135% and 105%-115% of LRIC, respectively, in order to prevent LECs from discriminating unreasonably between LECs as well as to avoid further contested hearings regarding compliance hearings. Any revenue shortfall that may occur as a result of the proposed price ceiling should be recovered from the residual charge, according to IAC. IAC opined that such a price ceiling was essential to prevent the LECs from pricing the transport options at unreasonable proportions relative to LRICs because minor variations in LRICs could result in huge changes in transport pricing since contribution could account for the bulk of the transport rates. GSC supported IAC's proposal for a price ceiling stating that the issue of termination of the cap and the residual charge can be determined simultaneously in the pricing rule. TEXALTEL commented that subsection 18(j) of PURA and substantive rule 23. 27(b)(2) prevent the use of customer specific contracts to provide any form of switched access service. However, TEXALTEL opined that LECs could argue that direct trunked transport is not switched access but private line, which can be offered pursuant to contract for transport of switched access service under PURA and Commission rules. TEXALTEL contended that if LECs are able to provide DS3 switched transport pursuant to contract, then they could tariff very high DS3 rates while selectively offering lower rates via contract to their largest customer or to customers in areas where competitors exist. Given that such contract price data is not available for scrutiny by competitors and intervenors, this would create tremendous opportunities for unsupervised discrimination, according to TEXALTEL. In order to prevent the use of customer specific contracts for purposes of discrimination, TEXALTEL recommended the definition of switched transport under subsection (d)(2)(P) be amended to included the sentence "switched access includes all forms of transport provided by the LEC over which switched access traffic is delivered." Nevertheless, TEXALTEL argued that the most effective means of prohibiting LECs from discriminating between IXCs would be to set rate limits. SWBT strongly objected to recommendations for a price ceiling on various transport rate elements and urged the Commission to reject the arbitrary price ceilings proposed by TEXALTEL and IAC. SWBT opined that a price ceiling while lowering rates for transport options would increase the residual charge and thereby exacerbate the problems associated with the residual charge and also lead to essentially a replication of the existing equal charge structure with a concomitant loss of any incentive for carriers to restructure in a more efficient manner. SWBT contended that the local transport market is a competitive market with carriers currently having several options including special access available from LECs and CAPs. The market dynamics would, therefore, force LECs to provide transport options at reasonable and competitive prices, according to SWBT. SWBT opined that access services have historically been priced above costs to provide subsidy to below cost services such as basic exchange services and that any cost recovery between access services and other services without a comprehensive restructuring and rebalancing of all LEC intrastate rates could undermine the Commission's policy of promoting universal service as well as threaten the financial integrity of the LECs. SWBT also argued that since the Commission maintains regulatory oversight over LEC proposed rates, the lack of a price ceiling would not prejudice the ability of interested parties to argue for rate levels they believe to be appropriate. Imposition of a price ceiling would, on the other hand, would preclude LECs from offering various options for the appropriate recovery of LEC costs, according to SWBT. GTE contended that IAC's proposed price ceiling of 135% of LRIC ignores the reality that telecommunications carriers have to recover significant shared and common costs that are characteristic of telecommunication networks. AT&T opined, in its reply comments, that stand alone costs of basic network functions (BNFs) identified in the TSLRIC studies under sec.23.91 should form the ceilings for the transport rates. AT&T defined stand alone costs as the forward-looking, long run costs incurred by an efficient firm to produce a service or group of services by themselves without reference to the rest of the services produced by the firm, using the most efficient technology available. The Commission's intent in adopting the proportional contribution method embodied in the rate relationship under subsection (d)(4)(F)(vii) as originally proposed, was to address the need to prevent the LECs from engaging in discriminatory pricing between the various transport options while, at the same time, affording the LECs with some degree of pricing flexibility in the face of increased competition in the access market. The Commission finds the concerns raised by IAC and TEXALTEL regarding the need to establish price ceilings of a certain percentage of LRIC if the proportional contribution method was adopted, to be valid. However, rather than adopting an arbitrary percentage above LRIC as a price ceiling as a means to address the problem of potential discrimination in the relative contribution among the various transport options, the Commission believes that a better solution would be to tie the contribution recovered from the DS1, DS0, and tandem-switched transport rates to the contribution recovered from the transport option most likely to be subject to competition in the access market, namely, the DS3 rate. Thus, there is no price ceiling on the DS3 direct trunked transport service whose price will be determined by competitive forces in the marketplace. The Commission finds that it is reasonable to use the LEC's DS3 rates as a baseline for developing rates for DS1, DS0 and tandem-switched transport options since it reflects the forward looking technology (fiber) assumed in incremental cost studies upon which the rates would be based and also because competitors in the switched access market are likely to target the transport option (DS3) used by large access customers. The rate relationship in the initial recommendation, therefore, required that the difference between the rates and the LRICs for DS0 direct trunked, DS1 direct trunked and tandem- switched options not exceed 150% of the difference between the rate and LRIC of the DS3 direct trunked transport option, on an equivalent unit of capacity basis. The Commission agrees with TEXALTEL that while subsection 18(j) of PURA and sec.23.27(b)(2) prohibit the use of customer specific contracts by the LEC in the provision of switched access service, additional language defining the form of traffic included under switched access is necessary to prevent the LEC from misusing such contracts for purposes of discrimination. Therefore, TEXALTEL's suggested language has been incorporated in the definition of switched access. The Commission finds that SWBT's arguments against the price ceiling reinforces the need for a limit on the rates that can be charged for transport options. The Commission believes that a price ceiling is necessary to prevent the LEC from reducing the contribution on the transport customers that have competitive alternatives (DS3 direct trunked service customers) and then recovering the lost contribution from transport customers that have few, if any, competitive alternatives (DS1 and DS0 direct trunked service and tandem switched service customers). The Commission disagrees with SWBT's concerns that the rate levels would adversely impact the LEC's ability to recover its costs and provide subsidy to other services. Since the individual rate elements must be priced based upon their costs, the LECs will recover their costs for providing the services involved. Any subsidy that is currently provided to assist universal service will continue to be provided since the residual charge enables the LECs to retain their overall current level of revenue. The price ceiling requires that the LEC rates for services not subject to significant competition cannot be set at high levels to offset reduced rates for services subject to competition. Allowing the residual charge without imposing a price ceiling on these services would enable the LECs to price competitively in competitive markets while taking advantage of its dominant monopoly position in non-competitive markets. The Commission concludes that the price ceiling is necessary because it serves as a substitute for competitive market conditions that would keep the rates for all services at a competitive level. The Commission believes that AT&T's recommendation for a price ceiling can be addressed in the costing and pricing projects and therefore, declines to adopt AT&T's recommendation. In Staff's initial recommendation, the language in subsection (d)(4)(F)(vii) regarding rate relationships was revised so that the difference between the rates and the LRICs for the DS0, DS1 and tandem switched options, respectively, cannot exceed 150% of the difference between the rate and the LRIC for the DS3 transport option, on an equivalent unit of capacity basis. While IAC opined that the rate relationship as proposed in the initial recommendation would give the LECs more pricing flexibility than the "equal" contribution method, it supported the initial recommendation terming it as a considerable improvement over the "proportional" contribution rate relationship as originally proposed. SWBT and GTE, on the other hand, strongly opposed the rate relationship proposed in the initial recommendation. SWBT claimed that the proposed 150% level was unsubstantiated and questioned whether the percentages relate to percentage differences or absolute dollars. SWBT asserted that the proposed rate relationships ignored customer perceptions of DS0, DS1 and DS3 level services as different services as well as cost differences between the services reflecting additional functions required to provide DS0 and DS1 level services that are not required in providing DS3 level services such as multiplexing, and the distances traveled by the different circuits and the various conversions that take place throughout the interoffice network. SWBT opined that by making pricing decisions, this rulemaking proceeding is attempting to circumvent the costing and pricing projects that will be addressing similar issues. GTE contended that there is no precedent in Texas where the prices of telephone services have been interlinked to one another. AT&T strongly objected to the revised language with respect to rate relationships in the initial recommendation, and suggested that the Commission adopt the language on "proportional" contribution as originally proposed. AT&T contended that the revised rate relationship which requires mark-ups of one service to be limited by the "dollars and cents" differences between the costs and rates of another service is based on the flawed "contribution" premise that services which cost proportionately less should not be priced proportionately less. Using an example, AT&T showed that when the upper limit rate for DS1 service is not tied to the percentage mark-up over cost of DS3 service, but is based upon the absolute "dollars and cents" difference between the costs and rates of DS3 service, the DS1 rate increases by only a 50% mark-up compared with the 100% mark-up for the DS3 rate even though the underlying costs of DS1 is as much as 200% higher than that of DS3. AT&T contended that the flaws in the revised methodology are magnified when the cost differences between DS1 and DS3 increase by 1,000%, for instance, and the maximum price for DS1 would then fall below the price floor of 105% required under subsections (d)(4)(F)(ii)-(iv)(II). AT&T commented that although it supported the "proportional" contribution as a "middle ground" mechanism, it continues to believe that market forces, such as demand, should be taken into account when setting rates. While the Commission recognizes that the price ceiling of 150% appears arbitrary, it believes that the price ceiling is an appropriate balance of the "proportional" and "equal" contribution approaches and that it accomplishes the goals of fostering competition in both the interexchange market and access market as well as promoting the efficient utilization of the LEC facilities. With respect to SWBT's query as to whether the percentages in the rate relationship in the initial recommendation relate to percentage differences or absolute dollars, the Commission notes that since the rate and the LRIC will be expressed in dollars and cents, the contribution (the difference between rate and LRIC) recovered from the various transport options will also be calculated in dollars and cents. The Commission also finds that SWBT's concern regarding the inappropriateness of rate relationships because they disregard differences in cost between DS0, DS1 and DS3 options to be groundless, given that all costs caused by the use of DS0, DS1, DS3 direct-trunked and tandem-switched transport options would be reflected in their individual LRICs and, therefore, their individual rates. With respect to GTE's claim regarding the linking of the rates of the various services, the Commission disagrees with GTE's characterization of the rule. The rule does not expressly link the rate of one service to another. Rather, the rule requires a consistent relationship between the costs of a service and the rates for that service. Given the significant role played by the pricing of the individual transport options in fostering competition in the interexchange market, the Commission believes that it is appropriate to link the various transport options to prevent unreasonable discrimination in the pricing of a particular option. The Commission disagrees with AT&T's recommendation that the proposed rate relationship in Staff's initial recommendation should be rejected because it is based on the flawed premise that services which cost proportionately less should not be priced proportionately less. The Commission believes that the rate relationship in the initial recommendation would result in services that cost less, as reflected in the LRIC of the service, to be priced less. However, given the lack of causal relationship between joint/common costs and an individual service, the Commission disagrees with AT&T that transport options whose LRICs are higher are responsible for the recovery of proportionately more of the joint and common costs. AT&T, however, raises a valid concern that the rate relationship as proposed in the initial recommendation could result in DS1 rates falling below the price floor of 105% of LRIC required under other sections of the rule. To address that concern, the language in the initial recommendation has been modified to require that the relevant contribution for purposes of rate comparisons between the DS1, DS0, tandem-switched transport options and the DS3 transport options would be the difference between the rate and 105% of the LRIC, on an equivalent unit of capacity basis. The Commission also rejects SWBT's claim that the proposed rate relationships circumvents the costing and pricing projects. The Commission believes that for the reasons stated above, it is imperative to establish some current pricing guidelines for switched transport rates which can then be revisited when the pricing project is completed just as the Commission has permitted LECs to develop LRICs under the current costing methodologies until the cost studies in the costing project pursuant to sec.23. 91 are completed. TEXALTEL recommended that the sentence in subsection (d)(4)(F)(vii) that requires the rate differences between the transport options to be reasonable should be deleted because the term "reasonable" is ambiguous and superfluous for purposes of enforcing the rule. TEXALTEL also suggested that the use of DS0 circuits, although not as commonly used as DS1 circuits, should be included in the provisions of the rule. Sprint and IAC proposed that the tandem- switched LRIC be included in the LRIC for the tandem-switched option for purposes of rate comparisons. The Commission declines to adopt TEXALTEL's recommendation to delete the language requiring rates to be reasonable because the Commission believes that the language reiterates the Commission's policy that switched transport rates should be reasonable. In order to determine what reasonableness means, the Commission believes language on what constitutes reasonable rates should now be included. The Commission agrees with TEXALTEL that the use of DS0 circuits should be reflected in the provisions of the rule and has, therefore, included DS0 circuits in the provision regarding rate relationships. With respect to the proposal made by Sprint and IAC that the tandem-switch LRIC be included in the LRIC for the tandem-switched option for purposes of rate comparisons, the Commission finds that language proposed would clarify that all rates elements under tandem-switched transport should be considered for purposes of rate comparisons and therefore, incorporates the proposed modification in subsection (d)(4)(F)(vii). With respect to the provision in subsection (d) (4)(F)(ix)(I) which requires LECs to waive non-recurring charges for trunk reconfigurations or disconnection of overprovisioned trunks, for a period of 180 days from the effective date of the initial tariff filings, SWBT opined that there was no basis to extend the waiver of non-recurring charges for facilities associated with interstate traffic for which the interstate waiver is scheduled to expire July 1, 1995. SWBT, therefore, recommended language that would limit the waiver of non- recurring charges to those circuits that carry predominantly intrastate traffic (i.e. less than 10% interstate usage). TEXALTEL opined, in its reply comments, that there are almost no circuits with less than 10% interstate traffic that would qualify for non-recurring charge waiver as proposed by SWBT. TEXALTEL stated that if SWBT's claim of all interstate circuits already having been reconfigured is true, then no revenues would be lost by retaining the provision. TEXALTEL and MCI urged the retention of the six month recurring charge waiver, claiming that adoption of intrastate transport would cause further reconfiguration. MFS recommended that the language relating to the waiver of nonrecurring charges should be modified to include trunk reconfigurations that "rehome" or "rollover" trunks from the customer's serving wire center to a different wire center where expanded interconnection will be used to terminate the trunks, in order to prevent disputes similar to those that have risen at the federal level where some LECs have refused to waive nonrecurring charges for rollovers. The purpose of subsection (d)(4)(F)(ix)(I) was to limit the application of the waiver of non-recurring charges for trunk reconfigurations or disconnection of overprovisioned trunks to circuits that carry intrastate traffic. The Commission agrees with SWBT that without language limiting the application of the provision to intrastate traffic, access customers also could extend the waiver of non- recurring charges for facilities associated with strictly interstate traffic, which is clearly not the Commission's intent. The language in subsection (d)(4)(F)(ix)(I) has therefore been revised to restrict application of the waiver of non-recurring charges to those circuits that carry any percentage of intrastate traffic. With respect to MFS's recommendation that LECs be required to waive nonrecurring charges for rollovers, the Commissions notes that the issue of waiver of non-recurring charges for rollovers has been addressed in sec.23.92 authorizing expanded interconnection for switched transport services where LECs were required to apply nonrecurring reconfiguration charges to customers that shift to interconnectors or reconfigure their service with the LEC in a neutral manner, unless the cost differences are specifically identified. The Commission, therefore, declines to adopt MFS's suggested modification. Subsection (d)(4)(F)(ix)(II) of the proposed amendments permitted a LEC to offer volume and term discounts if at least 100 DS1-equivalent cross-connects have been purchased in the state for the transmission of switched transport traffic or 30% of the switched transport services within the LEC's service area statewide is not provided by the LEC. GTE strongly objected to any interpretation that the 100 DS1-equivalent cross-connects should be applied on a LEC-specific basis because it ignored the wide disparity between LECs in Texas and therefore failed to treat LECs in a non-discriminatory fashion. Noting that GTE's and Contel's combined transport revenues amount to less than 3.0% of SWBT's transport revenues, GTE contended that the proposed amendments would place a greater burden upon GTE to obtain the right to offer volume and term discounts and thus force customers to switch carriers to obtain competitive prices. AT&T concurred with GTE that the proposed rule should clarify whether the restrictions under which volume and term discounts can be offered are specific to individual LECs. GTE stated that it has filed a petition for waiver with the FCC to establish GTE state-specific DS1- equivalent switched cross- connect thresholds. GTE and Sprint recommended that the proposed rule should be revised to permit LECs which have the authority to offer interstate volume and term discounts to offer similar discounts on an intrastate basis. IAC responded that FCC authorization should not be the basis of approving such discounts in Texas. Sprint and IAC argued that in order to ensure non-discriminatory discounts, any form of volume and term discounts should reflect the underlying LRIC savings. IAC also proposed that term discounts should be offered over non-discriminatory time increments. IAC pointed out that the principal beneficiary of the proposed volume discounts, as a practical matter, would be AT&T because of its enormous traffic volumes, which, in IAC's view, makes these discounts discriminatory and an obstacle to further development of IXC competition. IAC contended that since all IXCs contribute to the traffic that determines the economies of the network, all IXCs, regardless of their level of traffic, are entitled to share in the resulting economies of scale. GTE argued that IAC's proposal to require LECs to cost justify volume discounts and offer term discounts on a non-discriminatory basis is at odds with IAC's acknowledgment that competitors in the switched access market will target their offerings to large access customers. GTE opined that true competition cannot exist if one set of competitors is strictly regulated and prohibited from offering prices that reflect competitive alternatives. Contending that the application of a uniform threshold would have a greater impact on a small LEC than on SWBT or GTE, Sprint proposed language enabling small LECs to offer volume and term discounts that mirror their interstate discounts or adopt the discounts offered by SWBT and/or GTE. GSC, in its reply comments, concurred with Sprint's suggested modifications. AT&T urged the rejection of GTE's request for additional LEC regulatory flexibility. AT&T opined that the language on volume and term discounts should be revised to clarify that the LEC cannot accord itself preferential treatment in this regard. AT&T proposed language that would prohibit a LEC from incorporating volume or term discounts into its own services at prices which are lower than those offered to its competitors. MFS argued that discounted rates should be cost justified so that the ratio of each discounted rate to the corresponding undiscounted rate is no less than the ratio of the LRIC of the discounted service to the LRIC of the undiscounted service. GTE commented that MFS's proposal imposes artificial pricing restrictions on the LECs that are not applicable to competitors such as MFS and creates artificial pricing umbrella for LEC competitors. In Staff's initial recommendation, the provision in subsection (d)(4)(F)(ix) (II) regarding volume and term discounts was deleted. IAC supported the deletion stating that such discounts cannot be justified on a cost basis. AT&T commented that the issue of volume and term discounts can be addressed in sec.23.27 and in connection with the actual tariff filings. GTE expressed disappointed at the deletion of language relating to volume and term discounts in the initial recommendation and asserted that without pricing flexibility, LECs would lose larger access customers to competitors who could offer customer specific rate proposals to these large access users. SWBT urged the Commission to reinstate the language relating to volume and term discounts. SWBT contended that the inability to offer volume and term discounts hinders the LEC's ability to compete with providers that can offer discounted rates based upon the relative profitability resulting from economies of scale. SWBT opined that given the absence of any recommendations or proposed tariff modifications in the context of Project Number 13605 which addresses pricing flexibility for special access and private line services, LECs should be permitted to offer flexible pricing in the context of this rulemaking project. The Commission's intent in permitting volume and term discounts was to provide LECs with a limited degree of pricing flexibility to enable them to compete in the switched transport market. The Commission agrees with GTE that the application of the threshold under which 100 DS1-equivalent cross-connects have to be offered before a LEC can offer volume and term discounts, is discriminatory if applied on a LEC-specific basis because it ignores the wide disparity between LECs in Texas. However, the Commission finds the solution offered by GTE and Sprint that the FCC approval of volume and term discounts constitute the basis of such discounts in Texas to be unsatisfactory. The thresholds established by the FCC, before volume and term discounts can be offered on an interstate basis, are linked to the zones created under the FCC- approved zone-density pricing plan and the Commission has decided not to adopt zone- density pricing in Texas for reasons addressed later in this order. The Commission also finds that retaining the original proposal on the statewide threshold of 100 equivalent cross-connects would permit a LEC to offer volume and term discounts in less competitive areas if the threshold has been met in denser, more competitive markets, which is clearly not the intent of the provision. The Commission also notes that many IXCs, including AT&T which is expected to be the biggest beneficiary of such discounts, argued against approval of volume and term discounts. The Commission believes that LECs do have the opportunity to request pricing flexibility to respond to significant competitive challenges under procedures that already exist under sec.23.27 and, therefore, deletes the language relating to volume and term discounts. SWBT strongly objected to the provision in subsection (d)(4)(F)(ix)(III)(a) under which LECs with 1 million or more access lines would be required to file its compliance tariffs within 120 days from the effective date of the rule with cost studies performed pursuant to sec.23.91(g). SWBT commented that the local transport cost studies are included as part of a workplan that sets a schedule for completion of cost studies pursuant to sec.23.91(g) and the workplan has been approved by the Commission in Docket Numbers 12475 and 12481. SWBT opined that the proposed filing dates for compliance tariffs would substantially advance the scheduled date for the filing of local transport cost studies. SWBT stated that substantive rule 23.91 envisions a sequential process whereby the cost studies for Basic Network Functions ("BNF") must be completed and approved prior to the performance of cost studies for "services" and the Commission staff has requested that the cost study schedule agreed to in the Joint Stipulation in Docket Numbers 12475 and 12481 not be accelerated. SWBT contended that the proposed tariff filing requirements are in contradiction with the existing provisions in sec.23.91, the Joint Stipulation in Docket Numbers 12475 and 12481, and the requests of the Commission Staff. SWBT suggested that until the cost studies are prepared for local transport under the provisions of sec.23.91, SWBT should be allowed to prepare LRIC studies under its current costing methodologies. While AT&T, IAC, and MFS agreed with SWBT's suggestion, AT&T and IAC also maintained that the development of TSLRIC studies pursuant to sec.23.91(g) could be accelerated if the Commission so required or the LECs chose to do so. Sprint opined that if any LEC cannot meet the proposed filing requirements, then it has the option of either requesting an extension of time until LRIC studies under sec.23.91 are complete or ask for a temporary waiver of the sec.23.91 requirements and file a LRIC study using its current methodology in the interim period with the caveat that the transport rates are re-evaluated once cost information pursuant to sec.23.91 requirements become available. SWBT recommended that subsections (d)(4)(F)(ii)-(iv)(II) be modified by deleting all references and requirements related to sec.23.91 and that subsection (d)(4)(F)(iv)(V), which addresses the requirements on LECs that are not subject to sec.23.91, be entirely deleted. TSTCI took exception to SWBT's recommendation to delete subsection (d)(4)(F)(ix)(V) because it applied to LECs such as the TSTCI member companies that are not subject to sec.23.91. In order to address SWBT's concerns while preserving the provision's original intent, TSTCI suggested that the language be modified so that LECs not subject to sec.23.91 could adopt the switched transport rates of another LEC that are developed pursuant to the subsection and not pursuant to sec.23.91 as proposed. SWBT, in its reply comments, acknowledged that it was not its intent to affect a small LEC's ability to adopt the rates of a large LEC and suggested language similar to that proposed by TSTCI. The purpose of the provision relating to compliance tariff filings that reflect rates supported by cost studies performed pursuant to sec.23.91(g) was to ensure that rates for the various transport services are based on Texas-specific LRICs developed according to the cost standard adopted by the Commission under sec.23.91. While it is true that the local transport cost studies are contemplated in the workplan approved in the Joint Stipulation in Docket Numbers 12475 and 12481, the Commission rejects SWBT's assertion that the proposed tariff filing requirements are in contradiction with the Joint Stipulation by accelerating the timing of the submission of the local transport cost studies. The Commission notes that the Joint Stipulation in Docket Numbers 12475 and 12481 states that "[N]o waiver or timetable agreed to in this Joint Stipulation precludes the Commission from ordering a LEC to perform a cost study using the methodology of Substantive Rule 23.91 in a separate rulemaking procedure, by order of a presiding officer in a docketed proceeding, or final order of the Commission." Clearly, the Commission has the authority to order the LECs to accelerate the cost studies for local transport, if necessary. However, the Commission recognizes that advancing the completion date for the filing of local transport cost studies in isolation would be inconsistent with the sequential process envisioned under sec.23.91, where the costs for BNFs are identified prior to the determination of costs for individual services as well as costs common to groups of service and general overhead costs. The Commission believes that as an interim measure, it is reasonable to permit LECs to submit LRIC studies under the current costing methodologies because it would ensure that transport rates are cost based and at the same time, the workplan for the completion of cost studies can progress on schedule. The Commission, therefore, deletes all references and requirements related to sec.23.91 in subsections (d)(4)(F)(ii)-(iv)(II) as well as in subsection (d)(4)(F)(v)(IV). However, in order to guarantee that rates are eventually based on LRIC studies developed pursuant to sec.23.91, other modifications are necessary. The Commission has added subsection (d)(4)(F)(ix) (VI) which requires LECs subject to sec.23.91 to file tariff amendments revising its local transport rates based on the new LRIC cost studies within 120 days after the completion of LRIC cost studies required by sec.23.91. The Commission agrees with TSTCI that since the requirements related to sec.23.91 cost studies have been deleted for an interim period, the language in subsection (d)(4)(F)(ix)(VI) should be revised to reflect the change so that LECs, not subject to sec.23.91, can adopt the switched transport rates of another LEC that are developed pursuant to the rule. Subsection (d)(4)(F)(ix)(IV) of the proposed amendments requires that any compliance tariffs for local transport services shall not be permitted to become effective before expanded interconnection for switched transport services becomes available from the LEC. Sprint opined that the proposed language would require local transport tariffs to be put on hold if a LEC's tariffs for expanded interconnection for switched transport services had not been approved. Sprint suggested language that would make the tariff filings for both local transport and expanded interconnection effective simultaneously. According to TSTCI, subsection (d)(4)(F)(ix)(IV) implies that the compliance tariff filings for each LEC cannot become effective until the LEC provides expanded interconnection for switched transport services. However, since not all LECs are subject to the expanded interconnection requirements under sec.23. 92, TSTCI recommended that the phrase "for those local exchange carriers subject to substantive rule sec.23.92 of this title" be added to the end of the paragraph. The Commission finds that Sprint's proposed modification is unnecessary because the implementation of the language linking the filing of local transport tariffs to the effective date of expanded interconnection would ensure that tariffs for both local transport and expanded interconnection become effective simultaneously. The Commission adopts TSTCI's suggested changes to the language in subsection (d)(4)(F)(ix)IV) because the application of the language regarding the timing of the compliance tariff filings of local transport was intended to be restricted to LECs that are subject to expanded interconnection requirements under sec.23.92. GTE objected to the exclusion of zone density pricing in the proposed amendments. While acknowledging that zone density pricing is being addressed in Project Number 13605, GTE contended that zone density pricing should be adopted in conjunction with local transport restructure and LECs should be permitted to mirror interstate zones and be required to provide LRIC studies on a zone basis. Sprint concurred with GTE in this regard. GTE commented that the proposed rule can be modified to match varying degrees of regulation with varying degrees of competitive alternatives throughout the state, on a zone basis. GTE suggested language that would: 1) make zone density pricing optional for each LEC; 2) set the price floor for each transport service based on statewide average LRICs or zone-specific LRIC; and 3) apply the FCC guidelines except that zone 1 prices would be deregulated, zone 2 prices would be set using the proposed methodology with differences between the contributions among the services not exceeding 25% and zone 3 prices would be set based on the methodology outlined in the proposed rule. AT&T, in its reply comments, opined that local transport reform can proceed without permitting zone density pricing and noted that LEC regulatory flexibility is addressed in sec.23.27 and zone density pricing, in particular, is being considered in another project. IAC and TEXALTEL, in their reply comments, contended that issue of zone density pricing and local transport restructure should be addressed separately. TEXALTEL opined that since zone density pricing is a response to competition for transport services, it had more of a logical linkage to interconnection than to LTR. Noting the absence of zone density pricing in the initial recommendation, GTE contended that without pricing flexibility from statewide average rates, LECs will be forced to lose high volume, high margin customers in the most densely populated, most competitive areas of the state to their competitors and thereby forego contribution from these customers. The Commission rejects GTE's arguments regarding the need for granting flexibility as a part of this rulemaking project. The Commission notes that authorizing additional pricing flexibility for the LECs as a part of this project would be premature since the adoption of expanded interconnection permits competition in switched transport markets but does not guarantee such competition. The Commission agrees with AT&T that LECs facing significant competitive challenges can seek pricing flexibility to respond to such competition under procedures established in sec.23.27. The Commission, therefore, declines to adopt GTE's suggested language. All comments, including any not specifically referenced herein, were fully considered by the Commission. The amendment is adopted under the Texas Civil Statutes, Article 1446c, sec.16, which provide the Public Utility Commission of Texas with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, and sec.18 which authorizes the Commission to adopt rules, policies and procedures to protect the public interest and to provide equal opportunity to all telecommunications utilities in a competitive marketplace. Cross Index to Statutes: Texas Civil Statutes, Article 1446c. sec.23.23. Rate Design. (a)-(c) (No change.) (d) Telephone. (1) (No change.) (2) Definitions. The following words and terms, when used within this subsection, shall have the following meanings, unless the context clearly indicates otherwise. (A) -(B) (No change.) (C) Dedicated signalling transport-Transmission of out-of-band signalling information between an access customer's common channel signalling network and a LEC's signalling transport point on facilities dedicated to the use of a single customer. (D) Direct-trunked transport-Transmission of traffic between the serving wire center and another LEC office, without intermediate switching, which is charged on a flat-rate basis. (E) Equal access-LEC access which is provided to access customers on a tariffed basis, which is equal in type, quality and price to Feature Group C, and for which the rates are unbundled. From an end user's perspective, equal access is characterized by the availability of 1-plus dialing with the end user's interexchange carrier of choice on interLATA calls. (F) Entrance facilities-The transmission path between the access customer's (such as an interexchange carrier's) point of demarcation and the serving wire center. (G) High Cost Assistance (HCA)-A program administered by the commission in accordance with the provisions of sec.23.53(d) of this title (relating to Universal Service Fund). (H) Interexchange Carrier (IXC)-A carrier other than a LEC providing any means of transporting intrastate telecommunications messages between local exchanges, but not solely within local exchanges, in the State of Texas. An entity is not an IXC solely because of: (i) the furnishing, or furnishing and maintenance of a private system; (ii) the manufacture, distribution, installation, or maintenance of customer premises equipment; (iii) the provision of services authorized under the FCC's Public Mobile Radio Service and Rural Radio Service rules; or (iv) the provision of shared tenant service. (I) Interexchange Carrier Access Charge (ICAC)-A usage-sensitive rate that is usually assessed in conjunction with carrier common line (CCL) usage. The revenues from the assessment of the ICAC are pooled and distributed to LECs pursuant to commission order. The ICAC is to be phased down and eliminated pursuant to the provisions of this subsection. During the phasedown, the ICAC will be referred to as the transitional ICAC. (J) Intrastate-Refers to communications which both originate and terminate within Texas state boundaries. An LEC access billing arrangement for services to access customers when local transport is jointly provided by more than one LEC. (L) Percent Interstate Usage (PIU) -An access customer-specific ratio or ratios determined by dividing interstate access minutes by total access minutes. The specific ratio shall be determined by the LEC unless the LEC's network is incapable of determining the jurisdiction of the access minutes. A PIU establishes the jurisdiction of switched access usage for determining rates charged to switched access customers and affects the allocation of switched access revenue and costs by LECs between the interstate and intrastate jurisdictions. (M) Residual charge-The per-minute charge designed to account for historical contribution to joint and common costs made by switched transport services. (N) Serving wire center (SWC)-The LEC-designated central office which serves the access customer's point of demarcation. (O) Special access-A transmission path connecting customer-designated premises to each other either directly or through a hub or hubs where bridging, multiplexing or network reconfiguration service functions are performed and includes all exchange access not requiring switching performed by the local exchange carrier's end office switches. (P) Switched access-Access service that is provided by LECs to access customers and that requires the use of LEC network switching or common line facilities generally, but not necessarily, for the origination or termination of interexchange calls. Switched access includes all forms of transport provided by the LEC over which switched access traffic is delivered. (Q) Switched access demand-Switched access minutes of use, or other appropriate measure where not billed on a minute of use basis, for each switched access rate element, normalized for out of period billings. For the purposes of this section, switched access demand shall include minutes of use billed for the local switching rate element. (R) Switched access minutes or access minutes of use -The measured or assumed duration of time that LEC network facilities are used by access customers. Access minutes are measured for the purpose of calculating access charges applicable to access customers. (S) Tandem-switched transport-Transmission of traffic between the serving wire center and another LEC office that is switched at a tandem switch and charged on a usage basis. (T) Transitional ICAC-A rate, calculated pursuant to paragraph (5) of this subsection. (3) (No change.) (4) Access rates. The structure and rates for all LECs' intrastate switched access services shall be established in accordance with the following requirements. (A)-(E) (No change.) (F) Local transport rate structure and pricing. Local transport rates shall not contain unreasonable distance sensitivity. Each local exchange carrier, as defined in sec.23.61 of this title (relating to Telephone Utilities), shall comply with clauses (i) -(ix) of this subparagraph, unless indicated otherwise. (i) Transport Services. Each local exchange carrier that is subject to this subparagraph shall offer transport services that consist of the following elements: entrance facilities, direct-trunked transport, tandem-switched transport, dedicated signalling transport, and a residual charge. (ii) Entrance Facilities. (I) All access customers that use the LEC's facilities between the customer- designated point of demarcation and the SWC shall be assessed a flat-rated entrance facilities charge based upon the service level ordered. LECs shall offer entrance facilities at voicegrade, DS1 and DS3 service levels. (II) Rates for entrance facilities shall be set no lower than 105% of the long run incremental cost (LRIC) for each service level stated in subclause (I) of this clause. (III) The LEC may charge distance-sensitive rates for entrance facilities as enumerated in clause (viii) of this subparagraph. Mileage shall be measured as airline mileage between the point of demarcation and the SWC. (iii) Direct-Trunked Transport. (I) All access customers that use the LEC's direct-trunked transport facilities shall be assessed a flat-rated direct-trunked transport charge based upon the service level ordered. LECs shall offer direct trunked transport at voice grade, DS1 and DS3 service levels. (II) Rates for direct-trunked transport facilities shall be set no lower than 105% of the long run incremental cost (LRIC) for each service level in subclause (I) of this clause. Additionally, these rates shall be set consistent with the requirement in clause (vii) of this subparagraph. (III) The LEC may charge distance sensitive rates for direct- trunked transport, as enumerated in clause (viii) of this subparagraph. Mileage shall be measured as airline mileage between the SWC and end office or between customer- designated points. (IV) Centralized equal access providers are not required to provide direct- trunked transport services. Local exchange carriers that do not have measurement and billing capabilities at their end offices are not required to provide direct-trunked transport services at those end offices. (iv) Tandem-Switched Transport. (I) All access customers that use the LEC's tandem-switched transport facilities shall be assessed the following rates: (-a-) a per access minute tandem switching charge; and (-b-) a per access minute tandem-switched transmission charge. (II) The rates for tandem-switched transport facilities shall be set no lower than 105% of the long run incremental cost (LRIC). Additionally, these rates shall be set consistent with the requirements in clause (vii) of this subparagraph. (III) The LEC may charge distance-sensitive rates for tandem-switched transmission elements, as enumerated in clause (viii) of this subparagraph. Mileage shall be measured as airline mileage between the SWC and the end office, unless the customer has ordered tandem-switched transport between the tandem office and the end office, in which case mileage shall be measured as airline mileage between the tandem office and the end office. (v) Dedicated Signalling Transport: Dedicated signalling transport shall be provided in accordance with the following requirements. Any LEC that currently provides dedicated signalling transport shall file tariff revisions to comply with the requirements of this clause in accordance with the schedule contained in subclause (III) of clause (ix) of this subsection. (I) Dedicated signalling transport shall consist of two subelements, a signalling link charge and a signalling transfer point (STP) port termination charge. (II) A flat-rated signalling link charge per unit of capacity shall be assessed upon all access customers that use facilities between the access customer's common channel signalling network and the LEC's signalling transfer point or equivalent facilities. If the LEC charges distance-sensitive rates for the signalling link, mileage shall be measured as airline mileage between the access customer's common channel signalling network and the LEC's signalling transfer point. (III) A flat-rated STP port termination charge per port shall be assessed upon all access customers that use dedicated signalling transport. (IV) Rates for dedicated signalling transport facilities shall be set no lower than 105% of the long run incremental cost (LRIC). (vi) Residual Charge. (I) The LEC shall assess only one residual charge for each local switching access minute of use sold to those customers interconnecting with the LEC's switched access network by ordering from the LEC's access tariff. (II) The initial residual charge contained in the initial tariff amendments filed pursuant to clause (ix) (III) of this subparagraph shall be computed as set forth in items (-a-)-(-c-) of this subclause: (-a-) The rates developed pursuant to this subparagraph for entrance facilities, tandem-switched transport, direct-trunked transport, and dedicated signalling transport services shall be multiplied by 1994 demand to calculate an estimated revenue. (-b-) The estimated revenue shall be subtracted from the intrastate local switched transport service revenues for 1994 to calculate a residual amount. (-c-) The residual amount shall be divided by the total intrastate local switching access minutes for 1994 to calculate the residual charge. (vii) Transport Rate Differences The rate differences between tandem- switched transport, DS1 direct-trunked transport and DS3 direct-trunked transport, shall be reasonable. The difference between the rate and 105% of the LRIC for DS1 direct-trunked transport shall not exceed 150% of the difference between the rate and 105% of the LRIC for DS3 direct-trunked transport, on an equivalent unit of capacity basis. The difference between the rate and 105% of the LRIC for DS0 direct-trunked transport shall not exceed 150% of the difference between the rate and 105% of the LRIC for DS3 direct-trunked transport, on an equivalent unit of capacity basis. The difference between the rate and 105% of the LRIC for tandem-switched transport shall not exceed 150% of the difference between the rate and 105% of the LRIC for DS3 direct-trunked transport, on an equivalent unit of capacity basis. To determine the rate and LRIC relationships between the transport options, the tandem switch LRIC must be included in the LRIC for the tandem-switched transport option. (viii) Distance Sensitive Rates. If the LEC employs distance-sensitive rates for entrance facilities, direct-trunked transport and/or tandem-switched transmission elements, they shall be assessed in the following manner: (I) a distance-sensitive component shall be charged for the use of the transmission facilities, including intermediate transmission circuit equipment between the end points of the transmission link; and (II) a nondistance-sensitive component shall be charged for the use of the circuit equipment at the ends of the transmission link. (ix) Tariff Provisions. (I) Nonrecurring charges shall be waived for a period of 180 days from the effective date of the initial tariff filings made pursuant to this subparagraph, when an access customer reconfigures its trunks between tandem-switched transport and direct-trunked transport or orders the disconnection of overprovisioned trunks for those circuits that carry intrastate traffic. (II) Tariff revisions shall be filed to remove any resale or sharing restrictions for switched transport services. (III) Initial tariff amendments to implement the provisions of this subparagraph shall be filed according to the following schedule: (-a-) LECs with 1 million or more access lines shall file no later than 120 days from the effective date of this subparagraph; (-b-) LECs with 50,000 or more access lines but fewer than 1 million access lines may file no earlier than 180 days from the effective date of this subparagraph; (-c-) LECs with fewer than 50,000 access lines may file no earlier than 240 days from the effective date of this subparagraph. (IV) Initial tariff amendments filed in compliance with this subsection shall be filed pursuant to sec.23.26 of this title (relating to New and Experimental Services). Tariff revisions filed pursuant to this subparagraph shall not be combined in a single application with any other tariff revision. Initial tariff amendments shall not be permitted to become effective before expanded interconnection for switched transport services becomes available from the LEC for those local exchange carriers subject to substantive rule sec.23.92 of this title (relating to Expanded Interconnection). (V) Local exchange carriers not subject to substantive rule sec.23.91 of this title (relating to Long Run Incremental Cost Methodology for LEC Services) may propose charges that are the same as the charges in effect for the carrier's interstate provision of the same service or adopt the switched transport rates of another LEC that are developed pursuant to the requirements of this section. (VI) Within 120 days after the completion of LRIC cost studies required by substantive rule sec.23.91 of this title (relating to Long Run Incremental Cost Methodology for LEC Services), any LEC subject to that rule shall file tariff amendments in order to revise its local transport rates in conformity with this section based upon the new LRIC cost studies. (G)-(I) (No change.) (5) -(7) (No change.) (e) (No change.) 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 June 1, 1995. TRD-9506643 John M. Renfrow Secretary of the Commission Public Utility Commission of Texas Effective date: June 22, 1995 Proposal publication date: December 13, 1994 For further information, please call: (512) 458-0100 TITLE 19. EDUCATION Part I. Texas Higher Education Coordinating Board Chapter 1. Agency Administration Subchapter B. Hearings and Appeals 19 TAC sec.1.22 The Texas Higher Education Coordinating Board adopts an amendment to sec.1. 22, concerning Agency Administration (Hearings and Appeals), without changes to the proposed text as published in the March 10, 1995, issue of the Texas Register (20 TexReg 1735). The amendment is necessary to implement the State Postsecondary Review Program (a federal program) and establish the guidelines under which the State Postsecondary Review Entity will review institutions of higher education in the state. The rules will guide the activities of the State Postsecondary Review Entity in its review of institutions of higher education. They will also establish the standards developed in consultation with affected schools. Comments were received from the University of Texas at Dallas, Midwestern State University, Amarillo College, and McClennan Community College. One comment requested the inclusion of a definition for "withdrawal rate" in sec.7. 1. Also requested was the consideration of rewording sec.7.83(b), Final Report, so as not to limit the Commissioner's consideration of only those corrective actions that can be accomplished in six months or less. In addition new wording that permits the institution to appeal a corrective action recommendation by the TXSPRE that the institution holds to be unreasonable, arbitrary, or unnecessary. There was also a concern about confidentiality prior to issuance of the Final Report. Staff agrees that "withdrawal rate" should be defined in the rules and proposes a definition for inclusion. Staff also agrees that the current proposed language in sec.7.83 limits the Commissioner's acceptance of only those corrective actions by the institution that can be completed within six months of agreement with the Commissioner on the action. The alternative language is good and will be carried forward as a recommendation for inclusion. Staff does not agree that the institution needs an appeal procedure to the Board if the institution deems a recommendation by the TXSPRE of a corrective action to be arbitrary, unnecessary, or incorrect. The institution has ample opportunity in the currently proposed rules to challenge the recommendations of the TXSPRE prior to the issuance of an initial report. Regarding confidentiality, this matter is addressed in the TXSPRE legislative agenda now known as House Bill 2486 in which the TXSPRE is asking the Legislature for statutory confidentiality protection of workpapers prior to the issuance of an initial report. The bill's status is pending. Another comment had concerns about provisions to guard against potential conflicts of interest in the composition of peer review teams. There is also a concern about the placement rates for community and technical colleges of 60% in programs greater than 600 clock hours and 70% for programs of 600 clock hours or less. Additionally there is concern about Review Standard Number 13 which finds an institution out of compliance if a member of the board of control, whatever that might be, is found to be administratively or judicially determined to have committed fraud with unspecific funds. The accreditation language to which the TXSPRE would refer to avoid conflicts of interest in the formation of a peer review team was described. The staff referred to the federal language in sec.668.8(e)(ii) requiring programs of 600 clock hours or less in proprietary institutions of higher education and postsecondary vocational institutions to be measured against 70% successful placement of program completers. Regarding 60% for placement of completers in programs below the associate degree greater than 600 clock hours in length, this rate is lower than the Perkins standard and that used by the Community and Technical Colleges Division of the Coordinating Board in on-site reviews. The staff agreed about the concern regarding Review Standard Number 13. A review of the federal language references for this Standard and a subsequent recommendation was made. Another comment objected to the reference to the specific instrument, Performance Measures and Core Standards for Postsecondary Technical Education Programs, as the source for performance measure thresholds for the TXSPRE in Review Standard Number 17. The thresholds in this instrument are goals and should not be applied elsewhere as standards. Staff agrees that the objection is well-founded and proposes new language for sec.7.42(17)(B)(I) (ii). The amendment is adopted under 42 United States Code, sec.1099 a-1 and Texas Education Code, Chapter 61, sec.61.927, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Agency Administration (Hearings and Appeals). 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 30, 1995. TRD-9506605 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 22, 1995 Proposal publication date: March 10, 1995 For further information, please call: (512) 483-6160 Chapter 7. State Postsecondary Review Program Subchapter A. General Provisions 19 TAC sec.sec.7.1-7.5 The Texas Higher Education Coordinating Board adopts new sec.sec.7.1-7.5, concerning State Postsecondary Review Program (SPRE) (Definitions), with changes to the proposed text as published in the March 10, 1995, issue of the Texas Register (20 TexReg 1737). The new rules are necessary to implement the State Postsecondary Review Program (a federal program) and establish the guidelines under which the State Postsecondary Review Entity will review institutions of higher education in the state. The rules will guide the activities of the State Postsecondary Review Entity in its review of institutions of higher education. They will also establish the standards developed in consultation with affected schools. Comments were received from the University of Texas at Dallas, Midwestern State University, Amarillo College, and McClennan Community College. One comment requested the inclusion of a definition for "withdrawal rate" in sec.7. 1. Also requested was the consideration of rewording sec.7.83(b), Final Report, so as not to limit the Commissioner's consideration of only those corrective actions that can be accomplished in six months or less. In addition new wording that permits the institution to appeal a corrective action recommendation by the TXSPRE that the institution holds to be unreasonable, arbitrary, or unnecessary. There was also a concern about confidentiality prior to issuance of the Final Report. Staff agrees that "withdrawal rate" should be defined in the rules and proposes a definition for inclusion. Staff also agrees that the current proposed language in sec.7.83 limits the Commissioner's acceptance of only those corrective actions by the institution that can be completed within six months of agreement with the Commissioner on the action. The alternative language is good and will be carried forward as a recommendation for inclusion. Staff does not agree that the institution needs an appeal procedure to the Board if the institution deems a recommendation by the TXSPRE of a corrective action to be arbitrary, unnecessary, or incorrect. The institution has ample opportunity in the currently proposed rules to challenge the recommendations of the TXSPRE prior to the issuance of an initial report. Regarding confidentiality, this matter is addressed in the TXSPRE legislative agenda now known as House Bill 2486 in which the TXSPRE is asking the Legislature for statutory confidentiality protection of workpapers prior to the issuance of an initial report. The bill's status is pending. Another comment had concerns about provisions to guard against potential conflicts of interest in the composition of peer review teams. There is also a concern about the placement rates for community and technical colleges of 60% in programs greater than 600 clock hours and 70% for programs of 600 clock hours or less. Additionally there is concern about Review Standard Number 13 which finds an institution out of compliance if a member of the board of control, whatever that might be, is found to be administratively or judicially determined to have committed fraud with unspecific funds. The accreditation language to which the TXSPRE would refer to avoid conflicts of interest in the formation of a peer review team was described. The staff referred to the federal language in sec.668.8(e)(ii) requiring programs of 600 clock hours or less in proprietary institutions of higher education and postsecondary vocational institutions to be measured against 70% successful placement of program completers. Regarding 60% for placement of completers in programs below the associate degree greater than 600 clock hours in length, this rate is lower than the Perkins standard and that used by the Community and Technical Colleges Division of the Coordinating Board in on-site reviews. The staff agreed about the concern regarding Review Standard Number 13. A review of the federal language references for this Standard and a subsequent recommendation was made. Another comment objected to the reference to the specific instrument, Performance Measures and Core Standards for Postsecondary Technical Education Programs, as the source for performance measure thresholds for the TXSPRE in Review Standard Number 17. The thresholds in this instrument are goals and should not be applied elsewhere as standards. Staff agrees that the objection is well-founded and proposes new language for sec.7.42(17)(B)(I) (ii). The new rules are adopted under 42 United States Code, sec.1099 a-1 and Texas Education Code, Chapter 61, sec.61.927, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning State Postsecondary Review Program (Definitions). sec.7.1. Definitions. (a) The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) ALJ-Administrative Law Judge employed by the State Office of Administrative Hearings. (2) The Act-The Higher Education Act of 1965, as amended. (3) Board-The Texas Higher Education Coordinating Board. (4) Board staff-Board-employed staff members or others who function as a part of the standards review team, or other staff who have the responsibility of carrying out the functions of the State Postsecondary Review Program for the State of Texas. (5) Certificate-A formal award certifying the satisfactory completion of a postsecondary education program. (6) Certify or certification-To attest to the truth in a signed document. (7) Challenge-The written objection of an institution to selection for review under sec.7.22 and sec.7.23 of this title (relating to Reviews Initiated by the Board and Challenge to Selection for Review by the Board), or to the findings of a standards review and/or peer review as presented in the initial report. Documents may be hand-delivered or mailed. If documents are mailed, they must be mailed certified mail, return receipt requested, or by next-day mail or delivery service. If documents are mailed, proof of receipt must be evidenced by the delivery date indicated on the U.S. Postal Service return receipt card, or the pick-up date indicated on the next-day mail or delivery service bill. (8) Cohort default rate-A percentage obtained by the formula defined in 34 Code of Federal Regulations, sec.668.17(e) and amended by the Student Right-to- Know Act of 1990, as amended. (9) Commissioner-The Commissioner of Higher Education, The Texas Higher Education Coordinating Board, or designee. (10) Completion rate-A percentage obtained by the formula defined in 34 Code of Federal Regulations, sec.668.8(f) and amended by the Student Right-to-Know Act of 1990, as amended. (11) Compliance guideline-The state-defined criteria for finding an institution to be conforming to the rules and regulations of the federal and TXSPRE standards. (12) Contested case-A proceeding in which the legal rights, duties, or privileges of a party are to be determined by the Board after an opportunity for adjudicative hearing. (13) Fair and equitable refund policy-A refund policy of an institution or branch campus congruous with the requirements prescribed in 34 Code of Federal Regulations, sec.668.22(b). (14) Final report-The report of the Board's findings after reconsideration of the initial report based on evidence provided by an institution; or, if an institution fails to respond to the initial report within the time required by the Board, the initial report becomes the final report the day after the expiration of the last day to file a response. (15) Initial report-The first report of the findings of the Board staff after review of a referred institution. (16) Licensure examination pass rate-A percentage obtained by dividing the total number of students in a specific institution or branch campus who passed a licensing examination during the reporting year of January 1 through December 31 by the total number of students taking the licensing examination from that institution during that same period. (17) Limitation-A restriction of participation in the Title IV, HEA program for violations of provisions and regulations of the program. Limitation may include: (A) a limit on the number or percentage of students enrolled in an institution who may receive Title IV, HEA program funds; (B) a limit, for a stated period of time, on the percentage of an institution's total receipts from tuition and fees derived from Title IV, HEA program funds; or (C) other conditions described in 34 Code of Federal Regulations, sec.668.93 or by the Secretary of the U.S. Department of Education. Removal of a limitation cannot occur for at least 12 months from the effective date of the limitation. (18) Placement rate-A percentage obtained by the formula defined in 34 Code of Federal Regulations, sec.668.8(g), and amended by the Student Right-to-Know Act of 1990, as amended. Generally, it is determined by dividing the total number of students who obtained gainful employment in the recognized occupation for which they were trained by the total number of students who completed the training. (19) SOAH-The Texas State Office of Administrative Hearings. (20) SPRP-The State Postsecondary Review Program, as regulated by the federal government in 34 Code of Federal Regulations, Part 667, which implements the program that is the subject of this Chapter. (21) SOICC (also referred to as the state-verified NOICC) -Texas State Occupational Information Coordinating Committee. (22) Student Right-to-Know Act of 1990-Student Right-to-Know and Campus Security Act of 1990 (Public Law 101-542, amended by Public Law 102-26) and appropriate federal regulations. (23) Suspension-Suspension removes an institution's participation in Title IV, HEA programs for a period not to exceed 60 days, unless a limitation or termination proceeding has begun. Suspension is appropriate when a school is expected to completely correct its program violations in accordance with 34 Code of Federal Regulations, sec.668.85. (24) Termination-A termination ends an institution's participation in the Title IV, HEA programs. Reinstatement may not occur for at least 18 months, even if the school changes ownership, in accordance with 34 Code of Federal Regulations, sec.668.94. (25) Withdrawal rate-A percentage obtained by the formula defined in 34 Code of Federal Regulations, sec.668, 16(I), and amended by the Student Right-to-Know Act of 1990, as amended. Generally, it is determined by dividing the total number of regular students who withdrew (excluding those receiving 100% refund) during the academic year by the total number of regular students enrolled during the same period. (b) The Board adopts by reference the meanings for the following terms as provided in 34 Code of Federal Regulations, Part 667.2: (1) Classification of Instructional Programs (CIP); (2) Education and general expenditures; (3) National Occupational Information Coordinating Committee (NOICC); (4) NOICC Master Crosswalk; (5) Professional program; (6) Referred institution; (7) State Postsecondary Review Entity (SPRE); (8) Title IV, HEA program; and (9) Vocational program. (c) The Board adopts by reference the meanings for the following terms as provided in 34 Code of Federal Regulations, Part 668: (1) academic year; (2) award year; (3) clock hour; (4) eligible program; (5) enrolled; (6) Federal Direct Student Loan Program; (7) Federal Pell Grant Program; (8) Federal Perkins Loan Program; (9) Federal PLUS Program; (10) Federal Stafford Loan Program; (11) Federal Supplemental Loans for Students (SLS) Program; (12) Federal Supplemental Educational Opportunity Grant (FSEOG) Program; (13) Federal Work-Study (FWS) Program; (14) full-time student; (15) two-thirds of an academic year; (16) National Early Intervention Scholarship and Partnership (NEISP) Program; and (17) State Student Incentive Grant (SSIG) Program. (d) The Board adopts by reference the meanings for the following terms as provided in 34 Code of Federal Regulations, Part 600: (1) accredited; (2) branch campus; (3) educational program; (4) eligible institution; (5) Federal Family Education Loan (FFEL); (6) institution; (7) nationally recognized accrediting agency; (8) pre-accredited; (9) recognized occupation; (10) regular student; (11) secretary; and (12) state. sec.7.2. Scope and Purpose. The rules in this chapter implement the Texas State Postsecondary Review Program authorized under Title IV of the Act, (Part H, Subpart 1 of the Higher Education Act of 1965, as amended). The rules in this Chapter implement standards and procedures required by the U.S. Department of Education by federal regulation codified at 34 Code of Federal Regulations, sec.sec.667.1 et seq. The program is responsible for conducting and coordinating reviews of institutions of higher education referred by the Secretary of Education under specific statutory provisions. The purpose of the reviews is to determine whether those institutions should continue to participate in the student financial assistance programs authorized under Title IV of the HEA. Where indicated in these rules, federally required criteria and provisions are incorporated by reference. sec.7.3. Institutions Subject to the State Postsecondary Review Program. All institutions which participate in Title IV, HEA programs are subject to the provisions of this chapter; however, institutions may be reviewed under the provisions of this chapter only if they have been referred or triggered under guidelines and procedures at 34 Code of Federal Regulations, sec.667.5 or sec.667.6. sec.7.4. Complaint Procedures. (a) Complaints regarding institutions shall be made in writing. At its discretion, the Board staff may accept an oral complaint, and if so, will reduce the complaint to writing. No anonymous complaints will be accepted. The Board staff will track complaints by institution name. (b) If a complaint relates to an institution's management or conduct of Title IV, HEA programs, or to misleading or inappropriate advertising and promotion of educational programs, the Board staff shall: (1) invite the institution to respond to the complaint; (2) if appropriate, recommend options for resolution of the complaint; and (3) notify the Secretary of complaints. (c) The Board staff will refer all other complaints to the institution or other appropriate entities. sec.7.5. Institution Obligations. (a) Each institution subject to this chapter shall be requested to designate a program coordinator and furnish in writing to the Board staff the name and telephone number of that person. The Board staff: (1) may refer complaints to the coordinator if the referral might resolve the complaint without jeopardizing the complainant's relationship with the institution; and (2) shall utilize the coordinator as the institutional contact for the review teams or Board staff. (b) Each institution shall notify students of their right to complain in writing or by telephone to the Board staff regarding the institution's management or conduct of Title IV, HEA programs or its advertising or promotion of its educational programs. The notification must be published in the institution's catalog and posted in at least three prominent campus locations frequented by a significant student population. 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 30, 1995. TRD-9506599 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 22, 1995 Proposal publication date: March 10, 1995 For further information, please call: (512) 483-6160 Subchapter B. Institutional Reviews 19 TAC sec.sec.7.21-7.25 The Texas Higher Education Coordinating Board adopts new sec.sec.7.21-7.25, concerning State Postsecondary Review Program (Institutional Reviews), with changes to the proposed text as published in the March 3, 1995, issue of the Texas Register (20 TexReg 1482). The new rules are necessary to implement the State Postsecondary Review Program (a federal program) and establish the guidelines under which the State Postsecondary Review Entity will review institutions of higher education in the state. The rules will guide the activities of the State Postsecondary Review Entity in its review of institutions of higher education. They will also establish the standards developed in consultation with affected schools. Comments were received from the University of Texas at Dallas, Midwestern State University, Amarillo College, and McClennan Community College. One comment requested the inclusion of a definition for "withdrawal rate" in sec.7. 1. Also requested was the consideration of rewording sec.7.83 (b), Final Report, so as not to limit the Commissioner's consideration of only those corrective actions that can be accomplished in six months or less. In addition new wording that permits the institution to appeal a corrective action recommendation by the TXSPRE that the institution holds to be unreasonable, arbitrary, or unnecessary. There was also a concern about confidentiality prior to issuance of the Final Report. Staff agrees that "withdrawal rate" should be defined in the rules and proposes a definition for inclusion. Staff also agrees that the current proposed language in sec.7.83 limits the Commissioner's acceptance of only those corrective actions by the institution that can be completed within six months of agreement with the Commissioner on the action. The alternative language is good and will be carried forward as a recommendation for inclusion. Staff does not agree that the institution needs an appeal procedure to the Board if the institution deems a recommendation by the TXSPRE of a corrective action to be arbitrary, unnecessary, or incorrect. The institution has ample opportunity in the currently proposed rules to challenge the recommendations of the TXSPRE prior to the issuance of an initial report. Regarding confidentiality, this matter is addressed in the TXSPRE legislative agenda now known as House Bill 2486 in which the TXSPRE is asking the Legislature for statutory confidentiality protection of workpapers prior to the issuance of an initial report. The bill's status is pending. Another comment had concerns about provisions to guard against potential conflicts of interest in the composition of peer review teams. There is also a concern about the placement rates for community and technical colleges of 60% in programs greater than 600 clock hours and 70% for programs of 600 clock hours or less. Additionally there is concern about Review Standard Number 13 which finds an institution out of compliance if a member of the board of control, whatever that might be, is found to be administratively or judicially determined to have committed fraud with unspecific funds. The accreditation language to which the TXSPRE would refer to avoid conflicts of interest in the formation of a peer review team was described. The staff referred to the federal language in sec.668.8(e)(ii) requiring programs of 600 clock hours or less in proprietary institutions of higher education and postsecondary vocational institutions to be measured against 70% successful placement of program completers. Regarding 60% for placement of completers in programs below the associate degree greater than 600 clock hours in length, this rate is lower than the Perkins standard and that used by the Community and Technical Colleges Division of the Coordinating Board in on-site reviews. The staff agreed about the concern regarding Review Standard Number 13. A review of the federal language references for this Standard and a subsequent recommendation was made. Another comment objected to the reference to the specific instrument, Performance Measures and Core Standards for Postsecondary Technical Education Programs, as the source for performance measure thresholds for the TXSPRE in Review Standard Number 17. The thresholds in this instrument are goals and should not be applied elsewhere as standards. Staff agrees that the objection is well-founded and proposes new language for sec.7.42(17)(B)(I) (ii). The new sections are adopted under 42 United States Code, sec.1099 a-1 and Texas Education Code, Chapter 61, sec.61.927, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning State Postsecondary Review Program (Institutional Reviews). sec.7.21. Reviews Based on Secretary Referral. (a) Any one of the following criteria will cause the Secretary to refer an institution to the Board or cause the Board staff to request approval from the Secretary for review as mandated by the U.S. Department of Education, 34 Code of Federal Regulations, sec.667.5. (1) The institution has a cohort default rate equal to or greater than 25%. (2) The institution has a cohort default rate equal to or greater than 20%; and during the latest completed award year for which data are available: (A) more than two-thirds of the institution's undergraduate students who were enrolled as at least half-time students received assistance under any Title IV, HEA program, excluding assistance received from the SSIG, NEISP, and Federal PLUS programs; or (B) the amount that the institution's students received under the Title IV, HEA programs, excluding funds from the SSIG, NEISP, and Federal PLUS programs, is equal to or greater than two-thirds of the institution's education and general expenditures. (3) The amount that the institution's students received under the Federal Pell Grant program is equal to or greater than two-thirds of the institution's education and general expenditures. (4) The Secretary initiated a limitation, suspension, or termination action against the institution under 34 Code of Federal Regulations, Part 668, Subpart G, within the preceding five years. (5) An audit finding in the institution's two most recent audits under 34 Code of Federal Regulations, sec.668.23 resulted in a required repayment by the institution of an amount greater than 5.0% of the funds the institution received under the Title IV, HEA programs for any one award year covered by those audits. (6) The Secretary cited the institution for its failure to submit an acceptable audit report by the deadlines established under 34 Code of Federal Regulations, sec.668.23. (7) The amount that the institution's students received: (A) under the Federal Pell Grant program during any award year differed by more than 25% from the amount that the institution's students received under that program in the preceding award year, unless the differences can be accounted for by changes in that program; (B) the amount that the institution's students received under the Federal Stafford Loan program during any award year differs by more than 25% from the amount that the institution's students received under that program in the preceding year, unless the differences can be accounted for by changes in that program; or (C) the amount that the institution's students received under the Federal SLS program during any award year differs by more than 25% from the amount that the institution's students received under that program in the preceding award year, unless the differences can be accounted for by changes in that program. (8) The institution failed to meet the factors of financial responsibility in 34 Code of Federal Regulations, Part 668, Subpart B. (9) The institution underwent a change in ownership that resulted in a change of control as defined in 34 Code of Federal Regulations, sec.600.31. (10) Except with regard to any public institution affiliated with a state system of higher education, the institution has participated for less than five years in: (A) the Federal Pell Grant program; (B) the FFEL program; (C) the FSEOG program; (D) the FWS program; or (E) the Federal Perkins Loan program. (11) The institution has been subject to a pattern of complaints from students related to: (A) its management or conduct of the Title IV, HEA programs; or (B) misleading or inappropriate advertising and promotion of the institution's educational programs that, in the Secretary's judgment, based on information available to the Secretary, including information provided to the Secretary by the SPRE, is sufficient to warrant review. (b) If an institution in Texas is a branch campus or additional location of an institution that has its main campus located in another state, that branch or additional location, if referred by the Secretary, shall be subject to review by the Board, if approved by the Secretary, in accordance with the standards of review established under Subchapters C and D of this title (relating to State Review Standards and Procedures and Peer Review Standards and Procedures). The Board may: (1) review that branch campus or additional location before a SPRE review is conducted of the main campus of that institution; (2) delay its review of that branch campus or additional location until a SPRE review is conducted of the main campus of that institution; or (3) choose not to review that branch campus or additional location if: (A) the SPRE of the state in which the main campus is located reviews that institution and makes no significant findings; and (B) the federal funding allotment of Texas for administering the program is insufficient to allow the Board to review all referred institutions. (c) The Commissioner is entitled to enter into an agreement with the SPREs of other states which may alter the review responsibilities of the various SPREs with respect to the review of institutions with locations in more than one state. sec.7.22. Reviews Initiated by the Board. (a) The Board may review an institution under this section that was not referred by the Secretary if: (1) the Board: (A) either: (i) determines that the institution meets a referral criterion in sec.7.21 of this title (relating to Reviews Based on Secretary Referral), based on more recent data available to the Board; or (ii) has reason to believe the institution is engaged in fraudulent practices; and (B) requests the Secretary to approve its review of that institution; and (2) the Secretary: (A) approves that request; or (B) does not respond to the Board's request within 21 calendar days after the date the Secretary receives that request. (b) If, under subsection (a)(1)(A)(i) of this section, the Board selects an institution for review, before the Secretary is requested to approve that review, the Board shall: (1) notify the institution of the selection and provide the institution with the reasons for its selection; and (2) delay its review request to the Secretary if the Board receives a notice from the institution, no later than seven calendar days after the institution receives the notice from the Board, challenging the accuracy of the information on which the selection was based. sec.7.23. Challenge to Selection for Review by the Board. (a) If an institution wishes to challenge the accuracy of the information on which its selection was based, it shall submit a notice of challenge no later than seven calendar days from the day the notice from the Board is delivered to the institution. The Board shall delay its review request to the Secretary upon receipt of a timely notice of challenge. (b) The institution has the burden of proving that the information was inaccurate. (c) If an institution challenges the accuracy of its cohort default rate for a particular year under 34 Code of Federal Regulations, sec.668.17(d) (1)(i)(A) and (B), it must file a timely appeal of that rate under those provisions. (d) For purposes of subsection (b) of this section, the Board shall presume that records maintained in the normal course of business by the U.S. Department of Education, a guaranty agency under the FFEL programs, a SPRE, a state- licensing agency, or another state agency are accurate. (e) To challenge the accuracy of the information on which its referral was based, the institution may submit an objection to the referral with supporting documents. An objection to the referral must be delivered to the Board no later than 30 days after the notice was delivered to the institution under subsection (a) of this section. (f) The Board shall consider timely objections and make a determination of whether to request a review, seek additional information necessary for its determination, or withdraw its review request. (g) If the institution timely challenges its referral under subsection (e) of this section, the Board requests a review of the institution from the Secretary unless the institution convinces the Board that its selection was based upon inaccurate information. sec.7.24. Priorities for Reviews. (a) Each year the Board shall make available information regarding its review priority system after its plan is approved by the Secretary under 34 Code of Federal Regulations, sec.667.13 and before conducting reviews of referred institutions under that plan and priority system. (b) If the Board anticipates that the cost of reviewing all of the referred institutions will exceed the federal funding allotment for administering the program, the Board shall, as part of its plan, submit to the Secretary a priority system for selecting institutions to review from among the referred institutions. (c) The Board must make its top priority for review referred institutions that the Secretary has scheduled for recertification under 34 Code of Federal Regulations, Part 668, Subpart B. sec.7.25. Notice to Accrediting Agency. (a) If an institution which is accredited or pre-accredited by a nationally- recognized accrediting agency, and is approved by the Secretary for review under sec.7.22(a)(1)(A)(i) of this title (relating to Reviews Initiated by the Board), the Board staff shall notify the agency when it plans to conduct a review of the institution. (b) After conducting a review of the institution, the Board staff shall notify the accrediting agency of its findings and the actions the Board plans to take, as a result of those findings. 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 30, 1995. TRD-9506600 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 22, 1995 Proposal publication date: March 3, 1995 For further information, please call: (512) 483-6160 Subchapter C. State Review Standards and Procedures 19 TAC sec.7.41, sec.7.43 The Texas Higher Education Coordinating Board adopts new sec.7.41 and sec.7. 43, concerning State Postsecondary Review Program (State Review Standards and Procedures), with changes to the proposed text as published in the March 3, 1995, issue of the Texas Register (20 TexReg 1484). The new rules are necessary to implement the State Postsecondary Review Program (a federal program) and establish the guidelines under which the State Postsecondary Review Entity will review institutions of higher education in the state. The rules will guide the activities of the State Postsecondary Review Entity in its review of institutions of higher education. They will also establish the standards developed in consultation with affected schools. Comments were received from the University of Texas at Dallas, Midwestern State University, Amarillo College, and McClennan Community College. One comment requested the inclusion of a definition for "withdrawal rate" in sec.7. 1. Also requested was the consideration of rewording sec.7.83(b), Final Report, so as not to limit the Commissioner's consideration of only those corrective actions that can be accomplished in six months or less. In addition new wording that permits the institution to appeal a corrective action recommendation by the TXSPRE that the institution holds to be unreasonable, arbitrary, or unnecessary. There was also a concern about confidentiality prior to issuance of the Final Report. Staff agrees that "withdrawal rate" should be defined in the rules and proposes a definition for inclusion. Staff also agrees that the current proposed language in sec.7.83 limits the Commissioner's acceptance of only those corrective actions by the institution that can be completed within six months of agreement with the Commissioner on the action. The alternative language is good and will be carried forward as a recommendation for inclusion. Staff does not agree that the institution needs an appeal procedure to the Board if the institution deems a recommendation by the TXSPRE of a corrective action to be arbitrary, unnecessary, or incorrect. The institution has ample opportunity in the currently proposed rules to challenge the recommendations of the TXSPRE prior to the issuance of an initial report. Regarding confidentiality, this matter is addressed in the TXSPRE legislative agenda now known as House Bill 2486 in which the TXSPRE is asking the Legislature for statutory confidentiality protection of workpapers prior to the issuance of an initial report. The bill's status is pending. Another comment had concerns about provisions to guard against potential conflicts of interest in the composition of peer review teams. There is also a concern about the placement rates for community and technical colleges of 60% in programs greater than 600 clock hours and 70% for programs of 600 clock hours or less. Additionally there is concern about Review Standard Number 13 which finds an institution out of compliance if a member of the board of control, whatever that might be, is found to be administratively or judicially determined to have committed fraud with unspecific funds. The accreditation language to which the TXSPRE would refer to avoid conflicts of interest in the formation of a peer review team was described. The staff referred to the federal language in sec.668.8(e)(ii) requiring programs of 600 clock hours or less in proprietary institutions of higher education and postsecondary vocational institutions to be measured against 70% successful placement of program completers. Regarding 60% for placement of completers in programs below the associate degree greater than 600 clock hours in length, this rate is lower than the Perkins standard and that used by the Community and Technical Colleges Division of the Coordinating Board in on-site reviews. The staff agreed about the concern regarding Review Standard Number 13. A review of the federal language references for this Standard and a subsequent recommendation was made. Another comment objected to the reference to the specific instrument, Performance Measures and Core Standards for Postsecondary Technical Education Programs, as the source for performance measure thresholds for the TXSPRE in Review Standard Number 17. The thresholds in this instrument are goals and should not be applied elsewhere as standards. Staff agrees that the objection is well-founded and proposes new language for sec.7.42(17)(B)(I) (ii). The new rules are proposed under 42 United States Code, sec.1099 a-1 and Texas Education Code, Chapter 61, sec.61.927, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning State Postsecondary Review Program (State Review Standards and Procedures). sec.7.41. Review Personnel. Board staff shall: (1) conduct institutional reviews to determine whether such institutions are in compliance with the standards set forth in sec.7.42 of this title (relating to State Review Standards); and (2) prepare initial and final reports. sec.7.43. Procedures for Standards Reviews. (a) Reviews may consist of exchange of correspondence, inspection of documents and records, interviews with individuals, and site visits regarding institutional compliance with the State Review Standards, sec.7.42 of this title (relating to State Review Standards). Site visits will be announced unless there is reason to believe that prior notice could lead to the destruction, concealment, or alteration of institutional records. (b) An institution under review shall: (1) submit records as soon as feasible after they are requested. For records the institution does not possess the institution shall submit records within the time allotted by the Commissioner or designee. For records that do not exist, the institution shall provide an explanation. (2) when cited for non-compliance with a review standard and when a course of action has been prescribed, comply in a reasonable manner with the performance and schedule requirements provided by the Commissioner or designee. (c) The Commissioner may determine that the institution should no longer participate in one or more Title IV, HEA programs and initiate termination proceedings if that institution does not: (1) respond to the findings or comply with the Board's required actions within the time permitted; (2) allow a review team and Board staff at the institution; or (3) provide a review team and Board staff with prompt access to its documents and records. 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 30, 1995. TRD-9506601 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 22, 1995 Proposal publication date: March 3, 1995 For further information, please call: (512) 483-6160 Subchapter D. Peer Review Standards and Procedures 19 TAC sec.sec.7.61-7.63 The Texas Higher Education Coordinating Board adopts new sec.sec.7.61-7.63, concerning State Postsecondary Review Program (Peer Review Standards and Procedures), with changes to the proposed text as published in the March 3, 1995, issue of the Texas Register (20 TexReg 1485). The new rules are necessary to implement the State Postsecondary Review Program (a federal program) and establish the guidelines under which the State Postsecondary Review Entity will review institutions of higher education in the state. The rules will guide the activities of the State Postsecondary Review Entity in its review of institutions of higher education. They will also establish the standards developed in consultation with affected schools. Comments were received from the University of Texas at Dallas, Midwestern State University, Amarillo College, and McClennan Community College. One comment requested the inclusion of a definition for "withdrawal rate" in sec.7. 1. Also requested was the consideration of rewording sec.7.83(b), Final Report, so as not to limit the Commissioner's consideration of only those corrective actions that can be accomplished in six months or less. In addition new wording that permits the institution to appeal a corrective action recommendation by the TXSPRE that the institution holds to be unreasonable, arbitrary, or unnecessary. There was also a concern about confidentiality prior to issuance of the Final Report. Staff agrees that "withdrawal rate" should be defined in the rules and proposes a definition for inclusion. Staff also agrees that the current proposed language in sec.7.83 limits the Commissioner's acceptance of only those corrective actions by the institution that can be completed within six months of agreement with the Commissioner on the action. The alternative language is good and will be carried forward as a recommendation for inclusion. Staff does not agree that the institution needs an appeal procedure to the Board if the institution deems a recommendation by the TXSPRE of a corrective action to be arbitrary, unnecessary, or incorrect. The institution has ample opportunity in the currently proposed rules to challenge the recommendations of the TXSPRE prior to the issuance of an initial report. Regarding confidentiality, this matter is addressed in the TXSPRE legislative agenda now known as House Bill 2486 in which the TXSPRE is asking the Legislature for statutory confidentiality protection of workpapers prior to the issuance of an initial report. The bill's status is pending. Another comment had concerns about provisions to guard against potential conflicts of interest in the composition of peer review teams. There is also a concern about the placement rates for community and technical colleges of 60% in programs greater than 600 clock hours and 70% for programs of 600 clock hours or less. Additionally there is concern about Review Standard Number 13 which finds an institution out of compliance if a member of the board of control, whatever that might be, is found to be administratively or judicially determined to have committed fraud with unspecific funds. The accreditation language to which the TXSPRE would refer to avoid conflicts of interest in the formation of a peer review team was described. The staff referred to the federal language in sec.668.8(e)(ii) requiring programs of 600 clock hours or less in proprietary institutions of higher education and postsecondary vocational institutions to be measured against 70% successful placement of program completers. Regarding 60% for placement of completers in programs below the associate degree greater than 600 clock hours in length, this rate is lower than the Perkins standard and that used by the Community and Technical Colleges Division of the Coordinating Board in on-site reviews. The staff agreed about the concern regarding Review Standard Number 13. A review of the federal language references for this Standard and a subsequent recommendation was made. Another comment objected to the reference to the specific instrument, Performance Measures and Core Standards for Postsecondary Technical Education Programs, as the source for performance measure thresholds for the TXSPRE in Review Standard Number 17. The thresholds in this instrument are goals and should not be applied elsewhere as standards. Staff agrees that the objection is well-founded and proposes new language for sec.7.42(17)(B)(I) (ii). The new sections are adopted under 42 United States Code, sec.1099 a-1 and Texas Education Code, Chapter 61, sec.61.927, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning State Postsecondary Review Program (Peer Review Standards and Procedures). sec.7.61. Review Personnel. (a) In addition to a review of a referred or triggered institution conducted under Subchapter C, the Board shall contract with an independent group of peer reviewers (peer review team) consisting of individuals who the Board determines are competent in assessing the type of institution under review and have experience in evaluating the types of programs offered by the institution. The Board may also contract with institutional accrediting agencies or professional or specialized accrediting agencies to conduct reviews under this section. (b) Under the contract with the Board, the independent peer review team or accrediting agency shall carry out a review or provide reports and evidence from a previous review, and prepare a report to the Board regarding the assessment of the quality and content of the institution's educational programs in relation to achieving the stated objectives for which the programs were offered. (c) For each educational program, the assessment shall take into account the adequacy of the: (1) faculty and staff; (2) curriculum; (3) space and equipment; (4) library and instructional materials; and (5) student support services, including student orientation and counseling provided for each program. sec.7.62. Peer Review Standards. (a) In the scope of the peer review, the peer review team shall consider the standards in paragraphs (1)-(7) of this subsection. (1) Faculty qualifications. The character, education, and experience in higher education of the faculty shall be such as may reasonably ensure that the students will receive an education consistent with the objectives of the course or program of study. (2) Faculty size. There shall be a sufficient number of full-time teaching faculty resident and accessible to ensure continuity and stability of the education program, adequate educational association between students and faculty and among the faculty members, and adequate opportunity for proper preparation for instruction and professional growth by faculty members. (3) Staff qualifications. Staff shall be adequately qualified to assist faculty and administrators in meeting the stated objectives of the institution's educational and training programs. (4) Curriculum. The quality, content, and sequence of each course, curriculum, or program of instruction, training, or study shall be appropriate to the purpose of the institution and shall be such that the institution may reasonably and adequately achieve the stated objectives of the course or program. (5) Space and equipment. The institution shall have adequate space and equipment to provide education of good quality. (6) Library and instructional materials. The institution shall have in its possession or direct control and readily available to its students and faculty a sufficient quality and variety of library holdings and instructional materials to support adequately its own curriculum. (7) Student support services. The institution shall provide an effective program of academic advising for all students enrolled. The program shall include orientation to the academic program, academic and personal counseling, career information and planning, placement assistance, and testing services. (b) The Commissioner may substitute a prior review report or the findings of an accreditation report for some or all of the findings provided in the review report, provided that the prior report or findings accurately reflect the current conditions of the institution and meets the requirements set forth in the agreement between the Board and the peer review team. sec.7.63. Procedures for Peer Reviews. (a) Reviews may consist of exchange of correspondence, inspection of documents and records, interviews with individuals, some or all of the findings located in a recent accreditation or other review report, and site visits regarding institutional compliance with sec.7.62 of this title (relating to Peer Review Standards). Site visits will be announced unless there is reason to believe that prior notice could lead to the destruction, concealment, or alteration of institutional records. (b) An institution under review shall: (1) submit records as soon as feasible after requested. For records the institution does not possess, the institution shall submit records within the time allotted by the Commissioner or designee. For records that do not exist, the institution shall provide an explanation. (2) when cited for non-compliance with a review standard and when a course of action has been prescribed, comply in a reasonable manner with the performance and schedule requirements provided by the Commissioner or designee. (c) The Commissioner may determine that the institution should no longer participate in one or more Title IV, HEA programs and initiate termination proceedings if that institution does not: (1) respond to the findings or comply with the Board's required actions within the time permitted; (2) allow a review team and Board staff at the institution; or (3) provide a review team and Board staff with prompt access to its documents and records. 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 30, 1995. TRD-9506602 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 22, 1995 Proposal publication date: March 3, 1995 For further information, please call: (512) 483-6160 Subchapter E. Initial and Final Reports 19 TAC sec.sec.7.81-7.83 The Texas Higher Education Coordinating Board adopts new sec.sec.7.81-7.83, concerning State Postsecondary Review Program (Initial and Final Reports), with changes to the proposed text as published in the March 3, 1995, issue of the Texas Register (20 TexReg 1486). The new rules are necessary to implement the State Postsecondary Review Program (a federal program) and establish the guidelines under which the State Postsecondary Review Entity will review institutions of higher education in the state. The rules will guide the activities of the State Postsecondary Review Entity in its review of institutions of higher education. They will also establish the standards developed in consultation with affected schools. Comments were received from the University of Texas at Dallas, Midwestern State University, Amarillo College, and McClennan Community College. One comment requested the inclusion of a definition for "withdrawal rate" in sec.7. 1. Also requested was the consideration of rewording sec.7.83(b), Final Report, so as not to limit the Commissioner's consideration of only those corrective actions that can be accomplished in six months or less. In addition new wording that permits the institution to appeal a corrective action recommendation by the TXSPRE that the institution holds to be unreasonable, arbitrary, or unnecessary. There was also a concern about confidentiality prior to issuance of the Final Report. Staff agrees that "withdrawal rate" should be defined in the rules and proposes a definition for inclusion. Staff also agrees that the current proposed language in sec.7.83 limits the Commissioner's acceptance of only those corrective actions by the institution that can be completed within six months of agreement with the Commissioner on the action. The alternative language is good and will be carried forward as a recommendation for inclusion. Staff does not agree that the institution needs an appeal procedure to the Board if the institution deems a recommendation by the TXSPRE of a corrective action to be arbitrary, unnecessary, or incorrect. The institution has ample opportunity in the currently proposed rules to challenge the recommendations of the TXSPRE prior to the issuance of an initial report. Regarding confidentiality, this matter is addressed in the TXSPRE legislative agenda now known as House Bill 2486 in which the TXSPRE is asking the Legislature for statutory confidentiality protection of workpapers prior to the issuance of an initial report. The bill's status is pending. Another comment had concerns about provisions to guard against potential conflicts of interest in the composition of peer review teams. There is also a concern about the placement rates for community and technical colleges of 60% in programs greater than 600 clock hours and 70% for programs of 600 clock hours or less. Additionally there is concern about Review Standard Number 13 which finds an institution out of compliance if a member of the board of control, whatever that might be, is found to be administratively or judicially determined to have committed fraud with unspecific funds. The accreditation language to which the TXSPRE would refer to avoid conflicts of interest in the formation of a peer review team was described. The staff referred to the federal language in sec.668.8(e)(ii) requiring programs of 600 clock hours or less in proprietary institutions of higher education and postsecondary vocational institutions to be measured against 70% successful placement of program completers. Regarding 60% for placement of completers in programs below the associate degree greater than 600 clock hours in length, this rate is lower than the Perkins standard and that used by the Community and Technical Colleges Division of the Coordinating Board in on-site reviews. The staff agreed about the concern regarding Review Standard Number 13. A review of the federal language references for this Standard and a subsequent recommendation was made. Another comment objected to the reference to the specific instrument, Performance Measures and Core Standards for Postsecondary Technical Education Programs, as the source for performance measure thresholds for the TXSPRE in Review Standard Number 17. The thresholds in this instrument are goals and should not be applied elsewhere as standards. Staff agrees that the objection is well-founded and proposes new language for sec.7.42(17)(B)(I) (ii). The new sections are adopted under 42 United States Code, sec.1099 a-1 and Texas Education Code, Chapter 61, sec.61.927, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning State Postsecondary Review Program (Initial and Final Reports). sec.7.81. Initial Report. (a) The Board staff: (1) shall inform the reviewed institution of the preliminary findings of the Standards Review and Peer Review; (2) invite the institution to respond in a timely manner; and (3) consider the institution's responses in completing the Standards Review and Peer Review. (b) The Commissioner shall issue an initial report to the reviewed institution within 45 calendar days after the Standards Review and Peer Review are complete. (c) The initial report shall set forth: (1) the findings of both review teams; and (2) the recommendation to be made to the Secretary. (d) The report shall inform the institution of its rights of appeal. (e) The initial report shall be sent to the Secretary within 30 calendar days after it is delivered to the institution, unless the Board receives a timely challenge from the institution in accordance with sec.7.82 of this title (relating to Challenges to an Initial Report). If an institution fails to challenge the initial report within 30 days, the initial report becomes the final report. sec.7.82. Challenges to an Initial Report. (a) To challenge the initial report an institution shall notify the Board staff of its intent within ten working days after delivery of the initial report to the institution. (b) Objections must be in writing, and directed to the Commissioner. They must be received within 30 calendar days after the initial report was delivered to the institution and should provide the basis for objections to the initial findings by the Board staff by: (1) responding to each individual finding separately in the order of the findings in the initial report; and (2) responding to each prescribed corrective action in the order each appears in the initial report. (c) All objections must include copies of all documents relied on by the institution to support its positions. (d) The Board staff's findings shall be presumptively correct and the institution objecting has the burden to demonstrate to the satisfaction of the Commissioner that there is no violation of a review standard or that the institution's failure to comply with a review standard does not warrant further action. sec.7.83. Final Report. (a) If there is no timely and properly completed objection received by the Board within the timeline prescribed, the initial report will become the final report. (b) If the initial report is timely and properly challenged pursuant to sec.7.82 of this title (relating to Challenges to an Initial Report), the Commissioner shall notify the institution in writing of the result of the institution's challenge and the basis for that result. The Commissioner may either: (1) cite institutional violations and how, when, and whether they must be corrected; or (2) notify the institution that termination proceedings are initiated. The Commissioner may agree to institutional proposals for corrections of violations only if corrections may reasonably be expected to be completed within a reasonable period of time. (c) The Commissioner may determine, based on evidence provided by the institution, that the institution's failure to satisfy a review standard does not warrant further action by the Board. The final report shall also inform the reviewed institution of its rights to appeal. (d) The final report shall be sent by the Commissioner to the Secretary no later than 30 calendar days after it is issued and shall include any other information the Secretary requires. If the institution fails to appeal the initial report properly and timely, the final report may be accompanied by a recommendation for termination by the Secretary. The report also may indicate that hearing proceedings have been or shall be initiated. If no course of action will be required, the Commissioner shall indicate in the final report to the Secretary why courses of action were not prescribed. 34 Code of Federal Regulations, sec.667.23(f)(2). 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 30, 1995. TRD-9506603 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 22, 1995 Proposal publication date: March 3, 1995 For further information, please call: (512) 483-6160 Subchapter F. Administrative Review 19 TAC sec.sec.7.121-7.140, 7.142 The Texas Higher Education Coordinating Board adopts new sec.sec.7.121-7.140 and 7.142, concerning State Postsecondary Review Program (Administrative Review), with changes to the proposed text as published in the March 3, 1995, issue of the Texas Register (20 TexReg 1487). The new rules are necessary to implement the State Postsecondary Review Program (a federal program) and establish the guidelines under which the State Postsecondary Review Entity will review institutions of higher education in the state. The rules will guide the activities of the State Postsecondary Review Entity in its review of institutions of higher education. They will also establish the standards developed in consultation with affected schools. Comments were received from the University of Texas at Dallas, Midwestern State University, Amarillo College, and McClennan Community College. One comment requested the inclusion of a definition for "withdrawal rate" in sec.7. 1. Also requested was the consideration of rewording sec.7.83(b), Final Report, so as not to limit the Commissioner's consideration of only those corrective actions that can be accomplished in six months or less. In addition new wording that permits the institution to appeal a corrective action recommendation by the TXSPRE that the institution holds to be unreasonable, arbitrary, or unnecessary. There was also a concern about confidentiality prior to issuance of the Final Report. Staff agrees that "withdrawal rate" should be defined in the rules and proposes a definition for inclusion. Staff also agrees that the current proposed language in sec.7.83 limits the Commissioner's acceptance of only those corrective actions by the institution that can be completed within six months of agreement with the Commissioner on the action. The alternative language is good and will be carried forward as a recommendation for inclusion. Staff does not agree that the institution needs an appeal procedure to the Board if the institution deems a recommentation by the TXSPRE of a corrective action to be arbitrary, unnecessary, or incorrect. The institution has ample opportunity in the currently proposed rules to challenge the recommendations of the TXSPRE prior to the issuance of an initial report. Regarding confidentiality, this matter is addressed in the TXSPRE legislative agenda now known as House Bill 2486 in which the TXSPRE is asking the Legislature for statutory confidentiality protection of workpapers prior to the issuance of an initial report. The bill's status is pending. Another comment had concerns about provisions to guard against potential conflicts of interest in the composition of peer review teams. There is also a concern about the placement rates for community and technical colleges of 60% in programs greater than 600 clock hours and 70% for programs of 600 clock hours or less. Additionally there is concern about Review Standard Number 13 which finds an institution out of compliance if a member of the board of control, whatever that might be, is found to be administratively or judicially determined to have committed fraud with unspecific funds. The accreditation language to which the TXSPRE would refer to avoid conflicts of interest in the formation of a peer review team was described. The staff referred to the federal language in sec.668.8(e)(ii) requiring programs of 600 clock hours or less in proprietary institutions of higher education and postsecondary vocational institutions to be measured against 70% successful placement of program completers. Regarding 60% for placement of completers in programs below the associate degree greater than 600 clock hours in length, this rate is lower than the Perkins standard and that used by the Community and Technical Colleges Division of the Coordinating Board in on-site reviews. The staff agreed about the concern regarding Review Standard Number 13. A review of the federal language references for this Standard and a subsequent recommendation was made. Another comment objected to the reference to the specific instrument, Performance Measures and Core Standards for Postsecondary Technical Education Programs, as the source for performance measure thresholds for the TXSPRE in Review Standard Number 17. The thresholds in this instrument are goals and should not be applied elsewhere as standards. Staff agrees that the objection is well-founded and proposes new language for sec.7.42(17)(B)(I) (ii). The new sections are adopted under 42 U.S.C. sec.1099 a-1 and Texas Education Code, Chapter 61, sec.61.927, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning State Postsecondary Review Program (Administrative Review). sec.7.121. State Office of Administrative Hearings (SOAH). An institution receiving a final report which includes a recommendation of termination is entitled to request a hearing before the State Office of Administrative Hearings (SOAH). Provided it receives a timely request from the institution, the Board shall schedule a hearing for any reviewed institution. sec.7.122. Challenge to Initiation of Termination Proceedings. (a) An institution's request for a hearing must be sent to the Commissioner no later than ten working days after the institution receives the final report. Failure of an institution to timely and properly request a hearing shall result in immediate recommendation to the Secretary that the institution be terminated. (b) The rules regarding hearings are applicable to all challenges to a final report that finds termination of participation in Title IV, HEA programs of the reviewed institution is appropriate for any of the reasons provided by these rules. sec.7.123. Notice. The Board staff shall inform the institution made the subject of termination proceedings of a hearing date which shall be determined by the SOAH. The notice shall include: (1) a statement of the time, place, and nature of the hearing; (2) a statement of the legal authority and jurisdiction under which the hearing is to be held; (3) a reference to the particular sections of the statutes and rules involved; (4) a short and plain statement of the matters asserted; and (5) a statement of any and all standards of which the institution has been found to be in violation and/or other basis for initiation of termination proceedings. sec.7.124. Scope and Purpose of SOAH Hearings. (a) The sections of this subchapter, dealing with SOAH hearings, shall govern the proceedings in all contested cases under this chapter. (b) The purpose of this section is to incorporate by reference, to the extent they are not in conflict with these rules, for all purposes the provisions of the Administrative Procedure Act, Texas Government Code, sec.2001 (Vernon 1994 pamphlet), and to set forth the procedure for the administration of all appeals before SOAH. sec.7.125. Administrative Law Judge (ALJ). (a) The SOAH may designate an Administrative Law Judge (ALJ) to act on behalf of the SOAH in conducting any hearing or proceeding held pursuant to this subchapter and to prepare a written report on such hearing. (b) The ALJ has the authority to administer oaths; call and examine witnesses; issue subpoenas; make rulings on motions, admissibility of evidence, and amendments to pleadings; maintain decorum; schedule and recess the proceedings from day to day; and to make any other orders as justice requires. (c) If the ALJ is removed, dies, becomes disabled, or withdraws from an appeal prior to the completion of duties, the SOAH may designate a substitute ALJ to complete the performance of duties without the necessity of repeating any previous proceedings. sec.7.126. Appearance. Any party allowed to appear may be represented by an attorney-at-law. sec.7.127. Answers to Notice of Hearing and Initiation of Termination Proceedings. (a) An institution shall file an answer to the notice of hearing within 30 calendar days of receipt of notification by the Board that a hearing has been docketed. (b) The answer shall specifically admit or deny each allegation in the notice of hearing and shall set forth all affirmative defenses. Any allegation not specifically denied will be deemed admitted. The ALJ may deny the institution the opportunity to present evidence concerning any fact in the Board's notice which is not specifically denied or any affirmative defense which is not raised by the answer. sec.7.128. Classification of Pleadings. Pleadings filed with the SOAH shall include, but not be limited to, petitions, answers, replies, exceptions, and motions. Regardless of any error in its designation, the pleading shall be accorded its true status in the appeal in which it is filed. sec.7.129. Form and Content of Documents. All pleadings, briefs, and exhibits shall be legibly handwritten, typewritten, or printed on paper 8 1/2 inches wide by 11 inches long. Electronic transmission of pleadings in proper form containing a facsimile of the signature of the attorney or party filing the pleading is permissible. sec.7.130. Filing of Documents. (a) Any document shall be deemed filed only when actually received by the SOAH. (b) Documents may be hand-delivered or filed by mail if sent by certified U.S. mail, return receipt requested. A document will be deemed timely filed if it was mailed one day prior to the filing deadline. sec.7.131. Service of Pleadings. Copies of all pleadings must be sent to all parties of record in an appeal in compliance with the requirements of SOAH rules. 1 Texas Administrative Code sec.155.22. sec.7.132. Prehearing Conference. (a) In any appeal, the ALJ or a party may move for the setting of a prehearing conference. The ALJ may direct that the parties appear at a specific time for a conference prior to a hearing for the purposes of considering any of the following: (1) the formulation or simplification of issues; (2) admission of certain assertions of fact or stipulations; (3) the procedure at the hearing; (4) any limitation, where possible, of the number of witnesses; and/or (5) such other matters as may aid in the simplification of the proceeding or the disposition of matters in controversy, including the settlement of matters in dispute. (b) Action taken at the conference shall be reduced to writing and delivered to all parties. sec.7.133. Dismissal or Withdrawal of an Appeal. (a) The ALJ may, on the motion of a party, dismiss an appeal without a hearing for the following reasons: compromise; unnecessary duplication of proceedings; res judicata (a matter already decided by a court); withdrawal; mootness; untimely filing; lack of jurisdiction; or failure to prosecute. (b) The institution may request that the hearing be terminated and that the institution's challenge be withdrawn at any time prior to the Board's decision. sec.7.134. Rules of Evidence. (a) The ALJ shall admit in evidence and shall consider all documentary evidence considered by the review team in making its final report. Otherwise, the rules of evidence as applied in a nonjury civil case in a district court of this state shall apply to a contested case except that evidence inadmissible under those rules may be admitted if the evidence is: (1) necessary to ascertain facts not reasonably susceptible of proof under those rules; (2) not precluded by statute; and (3) of a type of which a reasonably prudent person commonly relies in the conduct of the person's affairs. (b) Exclusion of Evidence. Evidence that is irrelevant, immaterial, or unduly repetitious shall be excluded. (c) Privilege. The ALJ shall give effect to the rules of privilege recognized by law. sec.7.135. Procedure at a Hearing. (a) The Board shall state briefly the nature of the claim, what the Board expects to prove, and the action it seeks to effect. Immediately thereafter, the institution may make a similar statement, and intervenors and other parties will be afforded similar rights as determined by the ALJ. (b) Evidence shall then be introduced by the Board. (c) Unless such statement has already been made, the institution shall briefly state the nature of the claim or defense, what the institution expects to prove, and the relief sought. (d) Evidence shall be introduced by the institution. (e) The intervenor and other parties shall make their statement, unless they have already done so, and shall introduce their evidence. (f) The parties may be allowed closing arguments at the discretion of the ALJ. (g) Unless the ALJ, for good cause stated in the record, otherwise directs, the order of procedure shall be the order designated in subsections (a)-(i) of this section. (h) Parties shall provide four copies of each exhibit offered. (i) In any appeal where a party is represented by more than one attorney, the ALJ shall require the designation of a lead attorney. (j) A reasonable time limit may be set by the ALJ for any oral argument offered by a party. (k) Testimony presented at a hearing shall be confined to the subject matter designated in the hearing notice. Any testimony not relevant or material to the subject matter may be excluded by the ALJ. (l) The ALJ shall have the right to limit the number of witnesses whose testimony is merely cumulative. sec.7.136. ALJ's Report. The ALJ shall make a report and proposal for decision (recommendation) to the Board and a statement of the reasons for the recommendation and of each finding of fact and conclusion of law supporting the recommended decision. A copy of the report and recommendation shall be furnished to the institution. sec.7.137. Exceptions and Replies. Exceptions to the ALJ's report and recommendation may be made by the institution or the Commissioner by filing the exceptions with the ALJ within 30 calendar days of the issuance of the report. Replies to the exceptions by the other party, if made, must be filed with the ALJ within 30 calendar days of the filing of the exceptions. sec.7.138. Committee to Consider ALJ Report. (a) If the institution or the Commissioner wishes to appeal an ALJ report, they shall notify the Board in writing of their intention to appeal within seven working days after receiving notice of the final ALJ report. (b) An appeal to the Board from the ALJ hearing shall be: (1) considered by a committee designated by the Board and consisting of three to five Board members; (2) considered in an open meeting of the Board committee within 30 calendar days of notice of intent. (c) A committee of the Board in an open meeting will consider the ALJ's recommendation, findings of fact, conclusions of law, and final report. The committee shall: (1) consider the report from the ALJ and the written appeal why the Board should reconsider the ALJ report; (2) at its discretion, listen to oral presentations, the length of which may be determined by the committee; and (3) prepare a report and recommendation to the Board. sec.7.139. Procedure before the Board. (a) The Board shall consider the report of the ALJ and the committee's recommendation at the next appropriate Board meeting after the SOAH hearing is finally closed. The Board shall at that meeting issue a final decision or order. (b) At least seven working days notice shall be given by the Commissioner to all parties to a hearing of the time and place of the Board meeting at which the report of the ALJ and the committee's recommendation will be considered by the Board. (c) The committee's recommendation is considered unless leave to present newly discovered evidence has been heard by an ALJ and the ALJ has determined that such newly discovered evidence was unavailable at the time of the hearing and is material to the matter presented for Board determination. (d) The decision by the Board shall be mailed to the institution within seven working days following the Board's meeting. sec.7.140. Procedure after a Decision Becomes Final. If an institution does not file an appeal to district court within 30 calendar days after the Board's decision is final, the Board shall submit to the Secretary its final determination, which may include a recommendation for termination. If the institution has timely appealed the final decision, the Board shall notify the Secretary of the Board's final decision and the status of the appeal but shall not recommend termination until all appeals have been exhausted. sec.7.142. Final Determination Sent to U.S. Department of Education. The Board shall deliver the final determination to the institution and to the Secretary after the institution's right to appeal is exhausted. The final decision at the court of last appeal and any other information required by the Secretary shall be noted in the final determination. 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 30, 1995. TRD-9506604 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 22, 1995 Proposal publication date: March 3, 1995 For further information, please call: (512) 483-6160 TITLE 22. EXAMINING BOARDS Part IX. Texas State Board of Medical Examiners Chapter 187. Procedure Subchapter D. Posthearing 22 TAC sec.187.39 The Texas State Board of Medical Examiners adopts an amendment to sec.187. 39, concerning procedure, without changes to the proposed text as published in the December 6, 1994, issue of the Texas Register (19 TexReg 9588). The section as adopted will set forth the penalty for failure to comply with the provisions of the board rules related to continuing medical education and complaint procedure notification. The section as adopted will function by expediting proper disciplinary action against those licensees who have not complied with statute and board rules, and minimize costs for the resolution of relatively minor violations of the law. Comments were received from Texas Medical Association regarding the penalty for noncompliance with continuing medical education requirements. These concerns are being addressed in an amendment to sec.166.2, regarding continuing medical education. The amendment is adopted under the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.2.09(a), which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. Article 4495b, sec.4.12 and sec.4.125 is affected by this 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 legal authority. Issued in Austin, Texas, on June 2, 1995. TRD-9506685 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Effective date: June 23, 1995 Proposal publication date: December 6, 1994 For further information, please call: (512) 834-7728 Part XXII. Texas State Board of Public Accountancy Chapter 501. Professional Conduct Other Responsibilities and Practices 22 TAC sec.501.41 The Texas State Board of Public Accountancy adopts an amendment to sec.501. 41, with changes to the proposed text as published in the March 17, 1995, issue of the Texas Register (20 TexReg 1854). The changes are replacing "an" in subsection (10) with "a final". Subsection (12) has the addition of the word "repeated" before the word "failure" in that sentence and starts "repeated failure". The amendment allows the public and licensees to have clear examples of the types of prohibited behavior which may result in disciplinary action. The amendment will function by making it clearer to licensees the types of behavior which is prohibited. The following comments, along with board responses, were received concerning adoption of the rule: Barr, Robert H. Mr. Barr said parargraphs (1)-(8) are unneeded as they are already enforceable through the Public Accountancy Act ("Act"). Regarding paragraph (8) , he stated that financial statements prepared in accordance with Generally Accepted Accounting Principles ("GAAP") can still be misleading. The Federal Depository Insurance Corporation ("FDIC") and Resolution Trust Corporation ("RTC") have contended that even though a CPA complied with GAAP in preparing financial statements, the CPA knew the financial statements were misleading. He further stated that paragraph (8) could be selectively enforced. He stated that paragraph (10) should be limited to a final Order. Paragraph (11) is redundant to the rule on Independence. Paragraph (12) needs definitions of good cause and a reasonable length of time. Paragraph (13) might apply when a CPA's decision is based on incomplete or incorrect information given to the CPA. Paragraph (14) is redundant to sec.21(c)(1) or (2) of the Act. On paragraph (15) he doubts the need for a rule on threats of bodily harm. Paragraph (16) he fears will be selectively enforced. RESPONSE: The Board publishes all revisions to its Rules of Professional Conduct in the Board Report, which is mailed to all licensees. Most CPAs do not have a copy of the Public Accountancy Act. Although redundant to the Act, publishing these important paragraphs in the Rules greatly enhances their exposure to licensees. The Board does not disagree with the statement that financial statements can be misleading even when prepared in accordance with GAAP or GAAS. Paragraph (8) however does not conflict with his statement. The Board does not intend to selectively enforce paragraph (8). There should be no presumption that it will on the basis that it could. All Board rules could be selectively enforced. The Board agrees with Mr. Barr's suggestion in paragraph (10) which now makes it clear that the Board will not take action against an individual unless the order relied upon is a final order. With respect to his comment on paragraph (12), the Board must determine "good cause" and "a reasonable length of time" based upon all the circumstances of each individual complaint. There are too many variables to attempt to identify in one rulemaking what constitutes a "reasonable length of time" and "good cause". paragraph (13) does not apply when a CPA makes a decision or gives advice based on incorrect or incomplete information given to him unless he knew or should have known that either the information or the decision was flawed. The investigatory process will ferret out situations where the facts do not support the rule's violation. The same response applies in his earlier comment on finding the violation already covered in the Act. The Board wants to take all reasonable measures to assure that CPAs know what conduct is unacceptable to this Board. The Board's rules are more available to licensees. The Board has received numerous complaints against CPAs addressed by paragraph (15). The Board should take every measure to prevent the public's exposure to licensees who threaten bodily harm and retribution to a client. The concerns about possible selective enforcement have neither a historical basis nor a basis in fact. A rule does not cause selective enforcement and paragraph (16) does not encourage it. Bateman, Clinton F. Mr. Bateman opposes any amendment because he states less regulation, not more, is needed. He states in his comments that the amendment will increase enforcement actions, and will not result in a higher level of practice. He states that paragraphs (1)-(8) are redundant to the Act and paragraph (9) is vague and imprecise. Paragraph (10) he says is overly broad and is not limited to a final Order. Paragraph (11) is redundant to the rule on Independence and paragraph (12) is overly broad and lacks definitions. He says that paragraph (13) is overly broad and can not be defined and paragraph (14) is covered by other rules and sections of the Act, is difficult to define and could be abused. He also feels that paragraphs (15) and (16) are overly broad, can not be precisely defined, and will be impossible to enforce. He also states that paragraph (17) is a good concept but he doubts it occurs very often. RESPONSE: The revision to rule 501.41 is an effort by the Board to address complaints it has received which discredit the integrity of the accounting profession and are not detailed in current rules. The 17 paragraphs of this rule identifies to licensees the kind of activities the Board considers discreditable. With these examples licensees are better informed of the kind of behavior which may be sanctionable. The profession and the public will both benefit from rules that require a high standard of conduct by licensees. See response to Mr. Barr regarding redundancy. The Board agreed with the comment on finality and paragraph (10) has been amended to clarify that the order must be final. Fiscal dishonesty is certainly more precise than the current standard "discreditable acts". It places a licensee on notice that if in the course of dealing with someone else's assets they intentionally misrepresent the value or misappropriate the assets they are in violation of a Board rule and subject to disciplinary action. Paragraph (11) provides the licensee with notice that he or she must be independent when providing an opinion. In response to the concern expressed, paragraph (12) has been amended to read "repeated failure". Paragraph (13) is not overly broad. The Board, through this paragraph, places licensees on notice that deceit in the practice of public accountancy is sanctionable. See response to Mr. Barr regarding his comments on paragraphs (14), (15) and (16). Brochstein, Richard N. Mr. Brochstein said "fiduciary" in paragraph (9) should be limited to the relationship a CPA has with a trustee/executor client other than the usual accountant-client relationship. He stated that paragraph (10) should be limited to only those failures which relate to the practice of public accountancy and that paragraph (11) is redundant to the Act. He suggested that "repeatedly" be inserted in paragraph (12). He asks why paragraph (15) is limited to clients and whether it would apply to employees. He stated that "public" is not defined in paragraph (16) and that more specificity is needed. RESPONSE: The Board believes that all CPA clients should be able to expect a "trust" relationship with their CPA. The Board does not wish to limit non-compliance with a final order to only those situations where the final order involves the practice of public accountancy. The Board wants to know when judicial and administrative orders are not being complied with by its licensees. See response to Mr. Barr regarding redundancy. The Board agrees with the comment on "repeatedly" and has inserted "repeatedly" in paragraph (12). Paragraph (15) is limited to clients because the Board believes its primary responsibility is in protecting the public that engages a CPA. If inappropriate behavior occurs with persons other than clients then those persons may seek redress through the court system. If the courts conclude inappropriate behavior occurred, the Board would have an order under which it could take disciplinary action against the licensee. The courts have interpreted "public" in numerous cases which can provide the general guidance the Board needs in protecting the public. Durio, Patrick L. Mr. Durio expressed concern with what he referred to as the "laundry list," and prefers expanding the definition of discreditable acts. He expressed concern that too often people tend to look at the items listed and ignore the phrase that says the list is not all-inclusive. He questions why the actions described in paragraphs (11) and (12) are being singled out. He commented that "intentionally" should be added to paragraph (13) and that threats of bodily harm and allegations of a lack of mental capacity in paragraphs (15) and (16) should not be in the rules. He also stated that breaching the examination security is so obviously a discreditable act that it should not be in the rules. RESPONSE: The listed "discreditable acts" is not all inclusive and the Board reserves the right on a "case by case" basis, to determine that other acts violate rule 501.41. The large volume of complaints that the Board has received concerning independence in the practice of public accountancy and the failure of licensees to respond to clients, necessitates the emphasis of paragraph (11) and (12). Adding "intentional" as Mr. Durio suggests to paragraph (13) would be unnecessarily repetitious. See response to Mr. Barr on Mr. Durio's comments on paragraphs (15) and (16) . As to Mr. Durio's comments on paragraph (17), what is obvious to one person may not be obvious to another. The principal purpose of publishing rules is to give notice of prohibited conduct. Without such notice the courts will not allow the Board to take disciplinary action. Ferguson, Patrick Mr. Ferguson comments that the Board's reasoning for paragraph (10) is child support enforcement. He states that paragraph (12) should define reasonable time and good cause and he asks if paragraph (15) on retribution includes suing a client for fees. He also asks if paragraph (16) applies to testimony given in court. RESPONSE: The Board has never taken action against a CPA to enforce child support. Paragraph (10) tracks the Public Accountancy Act and is reiterated in the Board's rules to enhance a licensee's awareness of disciplinary actions available to the Board. See response to Mr. Barr regarding Mr. Ferguson's comment on "reasonable length of time" and "good cause". Paragraph (15) would not apply to a CPA suing a client for fees when the fees are legitimate, owed and unpaid. Paragraph (16) would not apply to testimony given under oath in administrative or judicial proceedings. Parmet, Michael S. Mr. Parmet comments that paragraphs (1)-(8) are already covered in the Act. He expresses concern that paragraph (4) allows the Board to use deferred adjudication and Driving While Intoxicated convictions as a basis for disciplinary action. He feels that since these areas are not related to the practice of public accountancy they, in his opinion, should not justify disciplinary action. Paragraph (6), he states, is too broad and could include voluntarily revocation. Paragraph (8) he feels is unnecessary because it might lead to increased litigation against CPAs. Paragraph (9) should be restricted to named fiduciaries to avoid litigation against CPAs. RESPONSE: See response to Mr. Barr regarding his comments on paragraps (1)-(8). His concern regarding the Board taking disciplinary action against a licensee for a D.W.I. conviction or deferred adjudication is a decision that was made by the Texas Legislature and not the Board. Its provided for in the Public Accountancy Act and the Board has an obligation to carry out the provisions of the Act. This comment highlights the Board's belief that most licensees are unfamiliar with the Act and that repeating important sections of the Act in the rules may be the best way for the Board to inform licensees of prohibited conduct. Regarding his comments on paragraphs (6) and (8), they track the Act and the Board is not able to revise its enabling legislation. Only the Legislature may modify the Board's responsibilities. See response to Mr. Brochstein regarding fiduciary. To maintain the current integrity of the CPA profession the Board must do all it can to prevent fiscal dishonesty or the breach of fiduciary responsibility by a licensee to his client. Paragraph (9) places licensees on notice and emphasizes the Board's intent to demand a licensee's fiscal honesty and fiduciary responsibility. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6, which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to carry in effect the purposes of the law; and Section 21, which authorizes the Board to take corrective or disciplinary action for violation of a rules of professional conduct. sec.501.41. Discreditable Acts. A certificate or registration holder shall not commit any act that reflects adversely on his fitness to engage in the practice of public accountancy. A discreditable act includes but is not limited to: (1) fraud or deceit in obtaining a certificate as a certified public accountant or in obtaining registration under the Act or in obtaining a license to practice public accounting; (2) dishonesty, fraud or gross negligence in the practice of public accountancy; (3) violation of any of the provisions of Section 8 or 20A of the Act applicable to a person certified or registered by the board; (4) final conviction of a felony or imposition of deferred adjudication in connection with a criminal prosecution of a felony under the laws of any state or the United States; (5) final conviction of any crime or imposition of deferred adjudication in connection with a criminal prosecution, an element of which is dishonesty or fraud under the laws of any state or the United States; (6) cancellation, revocation, suspension or refusal to renew authority to practice as a certified public accountant or a public accountant by any other state for any cause other than failure to pay the appropriate registration fee in such other state; (7) suspension or revocation of or a voluntary consent decree concerning the right to practice before any state or federal agency for a cause which in the opinion of the board warrants its action; (8) knowingly participating in the preparation of a false or misleading financial statement or tax return; (9) fiscal dishonesty or breach of fiduciary responsibility of any type; (10) failure to comply with a final order of any state or federal court; (11) failure to comply with any board rule on independence; (12) repeated failure to respond to a client's inquiry within a reasonable time without good cause; (13) misrepresenting facts or making a misleading or deceitful statement to a client; (14) false swearing or perjury in any communication to the board; (15) threats of bodily harm or retribution to a client; (16) public allegations of a lack of mental capacity of a client which can not be supported in fact; and (17) causing a breach in the security of the CPA examination. 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 June 5, 1995. TRD-9506705 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: June 26, 1995 Proposal publication date: March 17, 1995 For further information, please call: (512) 505-5566 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 29. Purchased Health Services Subchapter AA. School Health and Related Services 25 TAC sec.29.2603 On behalf of the State Medicaid Director, the Texas Department of Health (department) submits a proposed amendment to sec.29.2603, concerning reimbursement for School Health and Related Services (SHARS). Specifically, the amendment covers SHARS reimbursement methods and procedures which will apply to the rate setting process. The purpose of this amendment is to modify the sampling methodology and reduce the reporting burden previously imposed on the school districts. Gary Bego, health care financing budget director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Bego also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to reduce the reporting burden on school districts. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. There is no anticipated impact on local employment. Comments on the proposal may be submitted to Ray Gudur, Health Care Financing, Texas Department of Health, 1100 West 49th Street, Austin Texas 78756-3168, (512) 338-6469. Comments will be accepted for 30 days following publication of this proposal in the Texas Register. The amendment is proposed under the Human Resources Code, sec.32.021; and Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and is submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). The amendment affects the Human Resources Code, Chapter 32. sec.29.2603. Reimbursement. (a) The Texas Department of Health (department) will reimburse enrolled providers such as Texas school districts and school district cooperatives providing school health and related services to Medicaid eligible children [students] with disabilities. The department [Board of Human Services] determines reimbursement rates at least once every five years [annually] for school health and related services. However, adjustments will be made for inflation annually as provided in subsection (b) (5) of this section. These rates are: (1)-(3) (No change.) (b) Basis for rate analysis. (1) (No change.) (2) For subsequent periods, the department will collect cost data from a representative sample of [potential] providers. This data will contain the direct costs associated with delivery of school health and related services, the indirect program costs associated with service delivery, and general and administrative costs associated with the management of the facility and program. These cost reports will be subject to the general guidelines for review and edit outlined in 40 TAC sec.24.102 and sec.24.201 (concerning Methodology and Basic Objectives and Criteria for Desk Review of Cost Reports). (3) Concomitant with the cost data collection, a time study will be conducted to capture the distribution of service provider staff time in delivery of each of the services covered under school health and related services. This will include direct face-to-face contact with the client, indirect time spent in relation to a direct service delivery, and time spent on administrative/ educational/supervisory activities. Updates of time study will coincide with the cost report process. (4)-(8) (No change.) (c)-(e) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 2, 1995. TRD-9506691 Susan K. Steeg General Counsel Texas Department of Health Earliest possible date of adoption: July 10, 1995 For further information, please call: (512) 458-7236 Chapter 157. Emergency Medical Care The Texas Department of Health (department) adopts amendments to sec.sec.157. 2, 157.12-157.14, 157.16, 157.18, 157.21, 157.32-157.35, 157.42, 157.46, 157. 51, and 157.61-157.63; the repeal of sec.sec.157.11, 157.52, and 157.64; and new sec.sec.157.11, 157.47, and 157.64, concerning EMS provider licensure and certification. Sections 157.11-157.14, 157.16, 157.21, 157.32-157.35, 157.42, 157.46, 157.47, 157.51, and 157.61-157.64 are adopted with changes to the proposed text as published in the December 23, 1994, issue of the Texas Register (19 TexReg 10171) and the January 6, 1995, issue of the Texas Register (20 TexReg 60). The amendments to sec.157.2 and sec.157.18 and the repeal of sec.sec.157.11, 157.52, and 157.64 are adopted without change and will not be republished. The proposed amendment to sec.157.41 is being withdrawn in this issue of the Texas Register. The amendments, repeals, and new sections cover EMS provider licenses; EMS training and course approval; EMS personnel certification; and EMS course coordinator, program instructor, and examiner certification. The sections are needed to clarify existing certification and licensing requirements and to address current educational standards. Sixty individuals made the following comments concerning the proposed amendments and new sections. COMMENT: Concerning sec.157.2, one commenter stated that the definition for abandonment is too restrictive and removes scene management flexibility; another complained that it is too long. RESPONSE: The department disagrees. The definition gives flexibility by virtue of including physician directives. The length is necessary to qualify varying situations. COMMENT: Concerning sec.157.2, one commenter stated that the definition for standard of care references national curricula which are ten years old. The commenter expressed concern that the curricula might not reflect generally accepted practice and stated that standard of care should be resolved through consultation with recognized experts in prehospital care and through reference to the current literature. RESPONSE: The department disagrees. While current trends would undoubtedly be considered in any resolution, the term "current literature" is vague and nonstandard. EMS personnel will be held to standards based on protocols and their training. The department's rules reference the Department of Transportation (DOT) curricula, which are the standard in this state; even though some students are exposed to current discussions and trends in their training. COMMENT: Concerning sec.157.11(a)(1)(H), one commenter asked the department to consider including a rule that allows providers and officials to use resources from other states in mutual aid and disaster situations without the need for Texas certification or licensure. RESPONSE: The department believes that the capability to rely on assistance from other states is already authorized in the Health and Safety Code, Chapter 773. COMMENT: Concerning sec.157.11(a)(1)(F), staff commented that the reference was incorrect. RESPONSE: The department agrees and a revision has been made. COMMENT: Concerning sec.157.11(b)(1), comments were made that the department should spell out what the sanctions might be if a provider were to continue to operate after the expiration of a provider license. RESPONSE: The department agrees and that explanation has been added. COMMENT: Concerning sec.157.11(d)(1)(A), a commenter stated that all BLS ambulances should have at least one EMT or an ECA with equivalent field experience. RESPONSE: The department agrees, but present legislation mandates two ECAs as a minimum staffing requirement. No change was made as a result of the comment. COMMENT: Concerning sec.157.11(d)(2)(B) and (3)(B), a commenter suggested that only one section of the variance procedure should be by-passed rather than the entire variance procedure. RESPONSE: The department agrees and has changed the reference accordingly. COMMENT: Concerning sec.157.11(g)(1)(E), sec.157.12(c), sec.157.13(c), and sec.157.14(c), several commenters felt that it would be sufficient to say that equipment had to be available to meet the size and physical needs of the patient. To spell out the aging cycles of potential patients is redundant and is not a qualifier of size and need. RESPONSE: The department agrees and has removed the redundant language. COMMENT: Concerning sec.157.11(g)(1)(E)(i) and sec.157.12(c)(1), commenters stated that all cervical immobilization devices are not collars. RESPONSE: The department agrees and the wording has been changed. COMMENT: Concerning sec.157.11(j)(1), several commenters were concerned that limiting the wording on provider licenses to one of three levels of care would restrict providers from offering a higher level of care when the personnel and equipment were available to them. Further they anticipate that this change has the potential of interfering with their ability to bill Medicare for advanced services, if the license is given only for basic life support. RESPONSE: The department agrees that the wording in this section could be misleading, and has revised the paragraph to allow further clarification on provider licenses. COMMENT: Concerning sec.157.11(j)(2), several commenters were concerned that the wording regarding staffing and equipment 100% of the time, does not allow for reserve vehicles or give consideration to those providers who operate a tiered system or practice status system management. RESPONSE: The department agrees and has removed this language from the rule. COMMENT: Concerning sec.157.11(m)(2), a commenter made the observation that when a vehicle is substituted, it is usually for longer than 15 days and may be necessary for longer than the allotted 90 days. RESPONSE: The department disagrees. Fifteen to 90 days seems to be an adequate timeframe. An historical perspective has not determined this to be true. COMMENT: Concerning sec.157.11(m)(4), comments were made that the requirement of submitting run response data to the department every six months is incompatible with the requirement in the trauma rules which requires submission of the data on a quarterly basis. It was pointed out that the process of submitting the data electronically becomes more stable when the procedure is completed more frequently. RESPONSE: The department agrees and has changed the requirement to coincide with existing requirements. COMMENT: Concerning sec.157.11(m)(5), two commenters expressed objection to the requirement that patient run reports are to be left at the receiving hospital. One concern is that sometimes reports are completed electronically when the field crew returns to their station. RESPONSE: The department disagrees because prehospital care is part of the continuum of care and needs to be so documented in the patient's record. COMMENT: Concerning sec.157.11(m)(5), two commenters applauded this addition to the rule indicating that the pre-hospital documentation form is a vitally important part of the patient's medical record often effecting critical decisions that are made in the hospital setting. RESPONSE: The department agrees. COMMENT: Concerning sec.157.11(m)(13), commenters indicated that it was a provider's responsibility to assure that vehicles were staffed and equipped in readiness for a call, prior to being "in service." RESPONSE: The department agrees and has changed the language accordingly. COMMENT: Concerning sec.157.11(m)(15), commenters felt that submitting personnel information to the department within 30 days of personnel actions, would be too burdensome for most small or volunteer agencies. RESPONSE: The department agrees and has changed the requirement from 30 days to six months. COMMENT: Concerning sec.157.12(b), sec.157.13(b), and sec.157.14(b), commenters pointed out that instead of an arrangement with a hospital for disposal of special waste, a provider could have an arrangement with a licensed private entity which would comply with the intent of these rules. RESPONSE: The department agrees and has revised these sections to allow this option. COMMENT: Concerning sec.157.14(c)(3), commenters pointed out that drugs on the required list for Advanced Life Support Vehicles would not be inclusive of those required for Mobile Intensive Care Units. Therefore, sec.157.14(c)(2) which shows to be deleted in the proposed rules, should be put back in the rule and the reference to the advanced list should be deleted. RESPONSE: The department agrees and the revision has been made. COMMENT: Concerning sec.157.12 and sec.157.13, a commenter stated that all EMS vehicles should be equipped with automated external defibrillator. RESPONSE: The department agrees, but believes that this cannot now be made a mandatory requirement because of a paucity of available resources. COMMENT: Concerning sec.157.12, a commenter stated that every BLS service should have a medical director. RESPONSE: The department agrees, but believes the resources are not now available to mandate such. COMMENT: Concerning sec.157.14(c), one commenter stated that all ALS vehicles should be required to carry pulse oximeters. RESPONSE: The department recognizes the value of pulse oximeters, but disagrees that they should be mandated. COMMENT: Concerning sec.157.16(j), a commenter said that the names and subscribers would be of no use to the department unless the provider were to default on the subscription program. The commenter asked if information could be kept on disc in some place that would be retrievable to the department only when needed. RESPONSE: The department agrees that information would be needed only in case of provider default. Names and addresses can be submitted on disc. Special circumstances can be addressed on a case-by-case basis. COMMENT: Concerning sec.157.16(j), a commenter pointed out that a subscription program may not have just one annual enrollment period. RESPONSE: The department agrees and the language has been revised. COMMENT: Concerning sec.157.21(a)(3), a commenter pointed out that a service that uses an automated external defibrillator also needs a medical director. RESPONSE: The department agrees and the wording has been added to the rule. COMMENT: Concerning sec.157.21(a)(4), several commenters have asked that the requirement for an agreement between the first responder organization and the transporting provider be left in place. RESPONSE: The department agrees and that language has been reinstated in the rule. COMMENT: Concerning sec.157.21(a)(5), a commenter felt that this requirement would be burdensome to certain locales within the state. RESPONSE: The department disagrees. Some assurance needs to be maintained that if advanced care is initiated, the patient will be monitored by advanced personnel until they arrive at the hospital. COMMENT: Concerning sec.157.32(a)(2)(F)(iii), sec.157.33(a)(1)(B)(iii), sec.157.34(a)(1)(B)(iii), and sec.157.35(a)(1)(B)(iii), one commenter stated that CPR cards should be accepted if issued within 24 months of course application rather than 12 months which is arbitrary. The commenter indicated that AHA cards are valid for 24 months. As a third alternative, the commenter offered that cards could be accepted within 24 months and the student tested for CPR proficiency sometime before course completion. RESPONSE: The department agrees with adding a third option and the section has been revised to explain this alternative. COMMENT: Concerning sec.157.32(c)(2)(A), sec.157.33(C)(2)(A), sec.157.34(e)(2) (A), and sec.157.35(e)(2)(A), one commenter asked if the course processing fee would be assessed to nationally accredited schools as well, since they pay an annual fee to the accrediting organization. RESPONSE: Accredited programs will send in only a quarterly or semester listing of scheduled courses accompanied by a fee appropriate to the number of courses starting during that time frame. While accredited schools are exempt from the formal course approval process, department staff is still responsible for reviewing paperwork and monitoring classes. The small fee does not cover the cost of this activity. COMMENT: Concerning sec.157.35(e)(2)(D), a commenter asked whether or not a nationally accredited program was exempt from submitting a letter of agreement with a medical director since demonstration of adequate medical direction is an essential part of accreditation. RESPONSE: They are exempt and the department has added clarifying language to make the exemption evident. COMMENT: Concerning sec.sec.157.32-157.35, a letter was received from 19 colleges and universities around the state asking that public post-secondary institutions of higher education be exempted from paying course approval application processing fees. They explained that existing legislation does not provide for the collection of such a fee from each student entering college. RESPONSE: The department disagrees and points out that the course approval fee is not assessed on a per student basis. The fee is per course only and is assessed on each course approval application regardless of the number of students anticipated for admission. COMMENT: Concerning sec.157.32 and sec.157.33, a commenter made the observation that three ambulance runs is not a sufficient requirement for internship when developing a professional who is proficient in accomplishing patient care. RESPONSE: The department agrees, but points out that department rules set minimum requirements only. Coordinators and medical directors are permitted to set additional requirements as they see fit. COMMENT: Concerning sec.157.33(a)(7) and sec.157.33(e)(8), a commenter disagrees with the definition of an ambulance run, and does not believe that the course coordinator should be given the latitude of deciding when a run can count toward student experience in cases where the student does not accompany the patient to the hospital. RESPONSE: The department disagrees. The course coordinator has ultimate responsibility for student experiences within the course and is in the best position to evaluate the degree of experience offered during ambulance internship. This latitude is particularly important in the rural and frontier areas of the state. COMMENT: Concerning sec.157.33(e)(11), a commenter asks "why must the student pass the state skills exams with a state-certified skills examiner before they graduate from a program and then turn around and pass a skills examination again?" RESPONSE: There is no state skills examination. Skills proficiency verification is the responsibility of the course coordinator in initial classes. COMMENT: Concerning sec.157.32(a)(2)(F)(i), sec.157.33(a)(1)(B)(i), sec.157. 34(a)(1)(B)(i), and sec.157.35(a)(1)(B)(i), a commenter explained that the American Heart Association and American Red Cross have CPR guidelines as opposed to standards. RESPONSE: The department agrees and has changed the wording. COMMENT: Concerning sec.157.32(d)(1)(C), sec.157.33(d)(1)(C), sec.157.34(f)(1) (C), and sec.157.35(f)(1)(C), commenters pointed out that a history of a 20% failure rate needed a qualifying word to broaden the implication. RESPONSE: The department agrees and wording has been added for clarification. COMMENT: Concerning sec.157.32(d)(1)(D), sec.157.33(d)(1)(D), sec.157.34(f)(1) (D), and sec.157.35(f)(1)(D), commenters pointed out that a critical evaluation could be positive as well as negative. RESPONSE: The department agrees and the wording has been changed for clarification. COMMENT: Concerning sec.157.33(a)(7), (e)(8), sec.157.34(a)(8), sec.157.35(a) (5), and sec.157.35(g)(2)(F), a commenter explained that federally owned vehicles are not licensed by the department but in some cases may be appropriate for student training. RESPONSE: The department agrees and has added wording giving the bureau chief the authority to approve such internships if appropriate. COMMENT: Concerning sec.157.35, one commenter states that when comparing paramedic training in Texas to other states, and notes that standards need to be severely upgraded in Texas. The commenter feels Texas should be equal or superior to all states in the United States. RESPONSE: The department agrees that this is a laudable goal and that improvements can always be made in any system, and encourages all certificants and providers to work with the department in promoting such improvements. COMMENT: Concerning sec.157.35(d)(2), one commenter objected to the fact that the rule requires a course coordinator to have successfully coordinated at least two basic courses prior to coordinating a paramedic program for the first time. RESPONSE: The department disagrees. Coordinating advanced classes calls for increased instructional and coordination skills. Paramedic courses need to be carefully monitored beyond the capability of most novice coordinators. COMMENT: Concerning sec.157.41(a)(4)(D), a commenter disagrees with the special processing fee and is not certain it will accomplish what it was intended to. RESPONSE: The department agrees and is withdrawing the proposed amendment. COMMENT: Concerning sec.157.42, a commenter does not believe that the possession of a knowledge base equal to or superior to a paramedic's is sufficient to qualify a person to be awarded the professional recognition of paramedic. RESPONSE: The department agrees, therefore the rule includes evaluation of work experience and skill level to determine whether or not an RN must take the complete paramedic course prior to testing for certification. COMMENT: Concerningsec.157.42(b) and sec.157.47(b), several commenters pointed out that present rules require two certified persons to be on every ambulance run. Therefore, while RNs and PAs may become certified EMS personnel, there should be no mandate that they do so unless they will be staffing an ambulance as one of the two certified personnel. RESPONSE: The department agrees and has changed the language accordingly. COMMENT: Concerning sec.157.42, several commenters were concerned about the certification of RNs in relation to air ambulances. RESPONSE: Staffing requirements in the proposed rules do not impact the air ambulance provider. COMMENT: Concerning sec.156.46(b)(3), several commenters stated that they felt that $200 was too high a fee for a reciprocity application. RESPONSE: The department agrees and has lowered the application fee to $100. COMMENT: Concerning sec.157.46(d)(1), commenters indicated that the option of completing a refresher course should be left in. RESPONSE: The department agrees and has changed the language accordingly. COMMENT: Concerning sec.157.51(a)(1)(C), commenters were concerned that this section might in some way lead to discrimination. RESPONSE: The department agrees and has removed this sentence. COMMENT: Concerning sec.157.51(b)(28), commenters stated that the word "intemperately" could be open to misunderstanding. RESPONSE: The department agrees and has changed the wording. COMMENT: Concerning sec.157.61(b)(2)(A), one commenter stated that the mean score requirement should be removed from course coordinator requirements. RESPONSE: The department agrees. The proposed rules removed this requirement. COMMENT: Concerning sec.157.61(f)(1)(E), sec.157.62(f)(1)(D), and sec.157.63(f) (1)(E), staff commented that the timeline for submission of a recertification application is not in concert with recertification for EMS personnel. RESPONSE: The department agrees and has changed the wording for consistency. COMMENT: Concerning sec.157.61(f)(1)(H), (g)(1)(D), and (2)(E), commenters stated that while they agreed that a coordinator needs to be a certified skills examiner to qualify as a coordinator, they do not believe that it is necessary for the coordinator to maintain certification as an examiner. RESPONSE: The department agrees and has deleted this requirement. COMMENT: Concerning sec.157.61(d)(1)(A)-(B), a commenter asked if a nationally accredited program was exempt from the self study and site visit fees? RESPONSE: Yes, they are exempt since their self studies and site reviews are accomplished through another process. COMMENT: Concerning sec.157.62, one commenter asked why physicians and nurses should have to be certified as instructors. RESPONSE: Physicians and nurses may be guest lecturers without obtaining state certification. However, if they are to be a program instructor, certification is required. Medical and nursing education does not necessarily include instructional technology. COMMENT: Concerning sec.157.62(b)(2), commenters disagree that an instructor must have maintained EMS personnel certification for two years prior to becoming eligible for certification. RESPONSE: The department agrees and has deleted this requirement. COMMENT: Concerning sec.157.62(b)(3)(B), one commenter asks, "Is it not appropriately the responsibility of the course coordinators and the EMS providers or academic institutions with whom they are affiliated to define the instructional capabilities and work experience required of their instructors?" The commenter suggested that adding this language to the rule has no meaning and serves no purpose. RESPONSE: While agreeing with the assignment of responsibility, the department disagrees that this addition to the rule has no meaning, and has asked that only coordinators who are familiar with the experience and capabilities of an instructor, vouch for their competency. This addition will serve to remind coordinators of the seriousness of the support letter. COMMENT: Concerning sec.157.62(f)(1)(E)-(F), one commenter stated that these two sentences say the same thing. The commenter asked, " If subparagraph (F) states that instructor evaluation is based on student performance during skills proficiency and written exams, what other measure of teaching effectiveness can be used to evaluate the instructor in subparagraph (E)?" RESPONSE: There are other measures to be used such as criterion referenced direct observation, student surveys, and peer review surveys to name a few. COMMENT: Concerning sec.157.62(f)(1)(G), a commenter questioned why the department continues to reference DOT curricula when it is obsolete and why the department does not develop a minimum set of competencies for each level of certification and require coordinators to teach the most current information pertaining to these competencies? RESPONSE: The DOT continues to be a national standard and the department is involved in assisting in the updating of the curricula used. COMMENT: Concerning sec.157.63(b)(2), one commenter points out that there is no criteria for examiners in terms of a minimum time period for active certification as was proposed for program instructors. RESPONSE: The department agrees. That time period has been omitted in the instructor rule. COMMENT: Concerning sec.157.62(f)(1)(H), a commenter stated that not teaching on a regular basis would make it difficult to obtain 40 hours of teaching every two years for recertification as an instructor; and believes that the present requirement for 16 hours is sufficient. RESPONSE: The department disagrees. Twenty hours of instructing annually is not overwhelming when there has been no restriction placed on the type of instruction that qualifies. Teaching skills can be counted in the 20 hours. COMMENT: Concerning sec.157.63(f)(1)(C), commenters stated that it is unnecessary and may be burdensome for some rural examiners, to have to verify skills for 20 candidates in order to recertify. RESPONSE: The department agrees and has changed the wording to make the requirement less restrictive. COMMENT: Concerning the 90-day grace period which is allowed for completion of recertification processing in several of the rules, one commenter states that he disagrees and strongly recommends that the grace periods be eliminated. RESPONSE: The department disagrees because the grace period provides for accommodation of unusual or extenuating circumstances. COMMENT: Concerning sec.157.64(a)(2)(D), commenters stated that this statement is not complete enough since there are other course documents that can be falsified. RESPONSE: The department agrees and has added additional wording to address this concern. Editorial changes were made for clarification purposes. All the commenters were individuals. The commenters were generally in favor of the rules; however, they expressed concerns and questions relating to the changes. Emergency Medical Services-Part A 25 TAC sec.157.2 The amendment is adopted under the Health and Safety Code, Chapter 773, which provides the Board of Health with the authority to adopt rules to implement the Emergency Medical Services Act; and sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the Commissioner of Health. 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 30, 1995. TRD-9506727 Susan K. Steeg General Counsel Texas Department of Health Effective date: June 22, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 458-7236 Emergency Medical Services Provider Licenses 25 TAC sec.157.11 The repeal is adopted under Health and Safety Code, Chapter 773, which provides the Board of Health with the authority to adopt rules to implement the Emergency Medical Services Act; and sec.12.001, which provides the Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Board of Health, the Department of Health, and the Commissioner of Health. 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 30, 1995. TRD-9506623 Susan K. Steeg General Counsel Texas Department of Health Effective date: June 22, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 458-7236 25 TAC sec.sec.157.11-157.14, 157.16, 157.18, 157.21 The amendments and new section are adopted under Health and Safety Code, Chapter 773, which provides the Board of Health with the authority to adopt rules to implement the Emergency Medical Services Act; and sec.12.001, which provides the Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Board of Health, the Department of Health, and the Commissioner of Health. sec.157.11. Requirements for An EMS Provider License. (a) License application process. (1) Initial applicants shall: (A) request an application form from the Texas Department of Health (department); (B) submit the completed, signed, and dated application and the nonrefundable license fee, if fee is applicable, as provided in subsection (c) of this section; (C) submit a notarized document which records the name of the business and a statement of disclosure of ownership; (D) submit names of all personnel and indicate whether they are paid or volunteer, their level of certification, and their individual identification number; (E) submit written or documented evidence of: (i) a staffing plan in compliance with subsection (d) of this section; (ii) treatment and transport protocols and/or standing orders for each level of care rendered which have been reviewed, dated, and signed within 12 months prior to the license period by: (I) the director or medical director of a basic life support provider (BLS); (II) the medical director of an advanced life support provider (ALS) or mobile intensive care provider (MICU); or (III) the medical director of a BLS service providing automatic external defibrillation (AED); (iii) a sample patient run report form; and (iv) a plan for the assessment of the quality of patient care delivered by EMS personnel and a mechanism by which this assessment is used to further improve upon the delivery of such care. This plan shall contain the following elements: (I) a description of the service area; (II) a delineation of the desired objectives for the plan; (III) identification of those factors which are necessary for the delivery of good patient care in the field; (IV) a description of the process by which those factors so identified can be monitored and evaluated either directly or indirectly; (V) a description of the process by which the information gained in monitoring and evaluating, shall be assimilated and then used to improve upon the delivery of patient care; (VI) a description of the method by which the overall process of the plan can be evaluated with regard to its effectiveness in improving the delivery of patient care; and (VII) an evaluation of all aspects of medical and operational services provided, which shall include at a minimum: (-a-) medical protocols/standing orders; (-b-) operating procedures; (-c-) administrative procedures; (-d-) response data; (-e-) adherence to standards of care; (-f-) complaint management; and (-g-) proof of preventive and routine maintenance of vehicle(s) and equipment; (F) submit evidence of financial responsibility as in Texas Civil Statutes, Article 6675a-2a. If using standard liability coverage, a certificate of insurance shall be filed with the department; (G) submit a list of all vehicles including reserve vehicles with the vehicle identification number (VIN); and (H) submit a copy of a plan which is coordinated with the local emergency management director or coordinator and which specifically addresses prehospital response to multiple casualty, or catastrophic events. (2) Applicants who intend to operate at an advanced level either on a full- time or part-time basis shall submit a copy of the contract and/or letter of agreement with the medical director. (3) Applicants who are applying for a Basic Life Support (BLS) EMS provider license and who provide care at a level above BLS on a part-time basis when advanced level personnel are available shall be responsible for having the equipment and medical director necessary for the specific level of patient care delivered while in service at an advanced level in accordance with paragraph (2) of this subsection. (4) Applicants claiming volunteer status in accordance with subsection (c)(1)(A) of this section shall submit a letter of governmental sponsorship or recognition. (5) Applicants who receive and maintain certification from a national accrediting organization approved by the department shall be considered to have met the requirements of this section. They shall submit to the department a copy of the self-study for accreditation and a copy of the formal accreditation approval. Copies of any updates submitted to the accrediting organization as well as any correspondence from the organization affecting the provider's accreditation should also be submitted to the department. (b) License renewal process. The renewal process shall be complete prior to the expiration of the current license. (1) The department shall notify the EMS provider before the expiration date of the provider license. If a provider does not receive notice of expiration from the department, it is the responsibility of the provider to notify the department and request a license renewal application. Failure to apply for renewal shall result in expiration of the license. Continuing to operate without a license may result in administrative penalties up to $250 a day, revocation of license or other sanctions as set out in sec.157.19 of this title (relating to Emergency Suspension, Suspension, Probation, Revocation of a License, and Administrative Penalty). A completed application shall be submitted at least 60 days before the expiration date of the current license. (2) The license renewal applicant shall submit: (A) the completed application and the nonrefundable license fee, if fee is applicable, as provided in subsection (c) of this section; and (B) evidence of compliance with requirements for a provider license as delineated in subsection (a)(1)(C)-(H) and (2)-(4) of this section. (3) Vehicle inspections for renewal of a license as described in subsection (e) of this section may be waived if the renewal applicant: (A) provides evidence of compliance with requirements in subsection (e) of this section; and (B) has not been found in violation of requirements of this section or sec.157.12 of this title (relating to Basic Life Support Level Requirements), sec.157.13 of this title (relating to Advanced Life Support Level Requirements), sec.157.14 of this title (relating to Mobile Intensive Care Level Requirements), or sec.157.15 of this title (relating to Requirements for a Specialized Vehicle License) during scheduled or unscheduled spot inspections conducted by the department during the previous license period; or (C) has not been found in violation of the Health and Safety Code, Chapter 773 or rules promulgated thereunder during the previous license period. (c) License fees. (1) Nonrefundable fees shall be $100 for each EMS patient transport vehicle, not including reserve vehicles, or a maximum of $2,000 during the two-year registration period; unless: (A) the applicant is exempt from fees because the applicant staffs or intends to staff with personnel of which 75% of the total are volunteers; and (B) the applicant has no more than five full-time staff or their equivalent to provide emergency prehospital care. (2) If a license is issued for less than a two-year period under subsection (h) of this section, the following nonrefundable fees per vehicle shall apply: (A) $100 if the license is valid for 13-24 months; or (B) $50 if the license is valid for less than 13 months. (3) If the EMS provider has met the maximum $2,000 fee during a license period, no fee shall be required for additional vehicles added during the license period. (4) A provider who has a check returned to the department for "insufficient funds" shall be subject to revocation of the EMS provider license and this may be used as grounds for nonrenewal of the EMS provider license. (d) Provider license requirements. (1) Basic life support (BLS) staffing requirements. (A) A BLS provider shall staff BLS vehicle(s), when in service, with at least two emergency care attendants who have active status certification, 24 hours per day, seven days per week. (B) A BLS provider who does not provide service 24 hours per day, seven days per week, shall notify the department and publish notice of the hours of operation in the local media; and all advertising shall contain the hours of operation. (C) A BLS provider shall make available records or information as requested by the department to confirm the availability of certified EMS personnel to provide BLS level of care. (2) Advanced Life Support (ALS) staffing requirements. (A) An ALS provider shall staff ALS vehicle(s), when in service, with at least one EMT and one EMT-I who have active status certification, 24 hours per day, seven days per week. (B) If a BLS provider operates at the advanced level on a part-time basis and is operating in a rural service area, the BLS provider may petition the department to by-pass sec.157.20(c) of this title (relating to Request for Variance from Minimum Standards). The provider shall demonstrate that a staffing deficit exists and that responding with an ECA and EMT-I in lieu of the EMT and EMT-I is in the best interest of the community. If granted the variance, evidence of upgrade attempts will be reviewed annually. (C) The provider shall make available records or information as requested by the department to confirm the availability of certified EMS personnel to provide ALS level of care. (D) An ALS provider is required to have a medical director. (3) Mobile intensive care unit (MICU) staffing requirements. (A) An MICU provider shall staff MICU vehicle(s), when in service, with at least one EMT and one EMT-P who have active status certification, 24 hours per day, seven days per week. (B) If a BLS provider operates at the MICU level on a part-time basis and is operating in a rural service area, the provider may petition the department to by-pass sec.157.20(c) of this title. The provider shall demonstrate that a staffing deficit exists and that responding with an ECA and EMT-P in lieu of the EMT and EMT-P is in the best interest of the community. If granted the variance, evidence of upgrade attempts will be reviewed annually. (C) The provider shall make available records or information as requested by the department to confirm the availability of certified EMS personnel to provide MICU level of care. (D) An MICU provider is required to have a medical director. (e) Vehicle inspection. (1) Before the issuance of a license to an initial applicant, the applicant's vehicle(s) shall be inspected by the department. Each vehicle shall have: (A) an air conditioner and heater in working order for the patient and passenger compartment; (B) emergency lights and siren in working order; and (C) the name of the service prominently displayed on the sides of the vehicle. (2) The inspection shall include: (A) visual and physical inspection of each vehicle and of the equipment on each vehicle for the purpose of determining compliance with the vehicle and equipment specifications as described in this section, sec.157.12 of this title, sec.157.13 of this title, sec.157.14 of this title, or sec.157.15 of this title; and (B) visual inspection of safety equipment as follows: (i) one fire extinguisher securely mounted and readily accessible; (ii) two "No Smoking" signs, one mounted in patient compartment and one in the cab; (iii) a minimum of three visible warning devices on the vehicle, i. e. reflective triangles, etc. which are safe and effective and visible for at least 500 feet; and (iv) one functional portable flashlight (excluding penlight). (f) Failure of inspection. A vehicle shall fail the inspection if the requirements in subsection (e) of this section are not met and an EMS provider license shall not be issued. The department shall give the EMS provider a written report at the time of the inspection indicating the deficiencies. (g) Provisional license. (1) The department may issue a 60-day provisional license if any part of the application process is incomplete; and (A) it finds that the public interest and the community needs would be served; (B) staffing requirements are met; (C) vehicle specifications are met; (D) the required nonrefundable fee is received; and (E) the following equipment is present, clean and in working order and shall meet the size and physical needs of the patient: (i) rigid cervical immobilization devices of types that limit forward, backward, lateral movement or rotation of the head and cervical spine during movement of a patient; (ii) one portable suction unit with connecting tubing and suction tips (bulb syringes, syringes, or foot pump not acceptable); (iii) bag valve mask units which can be used with an external oxygen supply; (iv) nonmetallic oropharyngeal airways; (v) oxygen tubing and semi-open valveless, low, moderate, and high concentration, transparent oxygen delivery devices such as masks and cannulas; (vi) rigid, flexible, air, or vacuum extremity splints, in sufficient sizes for all extremities, of the type that limit movement of extremities during patient movement, and which may be, but are not limited to, any of the following types of splints: (I) padded aluminum, board, or cardboard splints; (II) inflatable or vacuum splints; (III) foam-type rapid splints; (IV) wire ladder splints or flexible metal splints; (V) commercial splints; (vii) long and short spine boards and straps to include: (I) one long six-foot board or commercial device; and (II) one short spine board or commercial device; or (III) commercial device which serves the purpose of both spine boards described in subclauses (I) and (II) of this clause; (viii) sphygmomanometers; (ix) stethoscope; (x) one multilevel stretcher capable of being secured to the vehicle and with two clean sheets and two clean blankets; (xi) dressing and bandaging materials; and (xii) two portable cylinders with a minimum capacity of 12 cubic feet in each cylinder with one regulator and piped-in medical grade oxygen in a cylinder with at least 107 cubic foot capacity in working order with current inspection stamps or equivalent. (2) A second 60-day provisional license may be issued if: (A) written documentation is submitted showing that equipment repair and/or part is back ordered; or (B) written documentation is submitted showing that equipment was ordered but not received. (h) License periods. An initial applicant or a renewal applicant for an EMS provider license who meets the requirements of this section shall be issued a license valid for a period of two years, except that the department may issue an initial license for less than two years in order to conform expiration dates to existing schedules for a locality. (1) An initial license shall be valid upon the date of issuance. (2) A renewed license shall be valid on the day after the expiration of the previous license. (3) A copy of the provider license that is provided by the department shall be prominently displayed in the patient compartment. (i) Expiration of license. A provider may not operate if there is a lapse in time between license expiration and licensure renewal without specific approval from the department. Approval shall be dependent upon: (1) documentation of circumstances beyond the control of the service; or (2) documentation of extenuating circumstances such as organizational restructuring; and (3) the impact the cessation of service would have on community. (j) Levels of care. (1) Licenses may be issued by the department for the following levels of care to an applicant who meets the requirements of this section: (A) BLS; (B) BLS with ALS capability; (C) BLS with MICU capability; (D) ALS; (E) ALS with MICU capability; and/or (F) MICU. (2) Use of the pneumatic antishock garment may be utilized at the basic level only under medical direction/supervision. (k) Advertisements. (1) A provider shall only advertise that level of care which can be provided in the service area 24 hours a day, seven days a week. (2) A provider shall not advertise as a volunteer provider unless at least 75% of all personnel are volunteer. (l) Transfer of license. A license is not transferable from one EMS provider to another. Continuing to operate an EMS service as defined in subsection (m)(10) of this section is not considered a transfer of license. (m) Responsibilities of the EMS provider. During the license period the provider's responsibility shall include: (1) notification of the department if a vehicle is added with submission of the nonrefundable prorated license fee, if applicable. The added vehicle shall be in compliance with sec.157.12 of this title, sec.157. 13 of this title, sec.157.14 of this title, or sec.157.15 of this title; (2) notification of the department if a vehicle is substituted for 15 days or longer. No vehicle shall be substituted longer than 90 days; (3) notification of the department if a vehicle is replaced. A fee is not required; (4) completion of the annual run response summary or participation in the Texas Department of Health EMS/Trauma data collection system. After August 31, 1996, all providers shall submit run response/patient data to the department as required in sec.157.129 of this title (relating to State Trauma Registry); (5) assuring that copies of patient run reports are left at the receiving hospital; (6) written notification of the department within 30 days of a change in the provider name or ownership. If ownership changes, a new application and nonrefundable prorated fee is required for an EMS provider license even if the name of the service remains the same; (7) written notification of the department within 30 days when a partner is added or has left an unincorporated partnership. A new application and nonrefundable prorated fee is required for an EMS provider license even if the name of the service remains the same; (8) written notification of the department within 30 days if 10% or more of the financial interest changes hands. A new application and nonrefundable prorated fee is required for an EMS provider license even if the name of the service remains the same; (9) written notification of the department within 30 days if the officers of the corporation change. A new application is not required; (10) when a new application and nonrefundable fee is required, as in paragraphs (6), (7), (8), and (9) of this subsection, the involved parties shall have 90 days to operate while the application is being processed; (11) notification of the department within one working day of any change in medical director and written notification within 30 days of the change in medical director and submission of a copy of the contract and/or letter of agreement with the new medical director listing specific equipment and drugs to be carried; (12) notification of department within 48 hours of any permanent or long term change in level of service provided. A new application and nonrefundable prorated license fee, if applicable shall be submitted; (13) assuring that a vehicle, when response ready is staffed and equipped in accordance with the Health and Safety Code, Chapter 773, and this section for each level of care provided; (14) maintaining confidentiality of medical records according to the Health and Safety Code, Chapter 773, Subchapter D, sec.sec.773.091-773.096; (15) submitting names of any employees who leave or any person who is hired within six months of personnel action; (16) maintaining compliance with all state motor vehicle laws and regulations; and (17) written notification of the department within 30 days of change in official business address. sec.157.12. Basic Life Support Level Requirements. (a) Vehicle specifications. All vehicles shall meet the size and shape requirements of Type I, II, or III described in the, document entitled "Federal Specification, Ambulance, Emergency Medical Care Vehicle" as published by the Federal General Services Administration 1990 A vehicle not meeting these specifications may be licensed only if it has been continuously authorized by the Texas Department of Health (department) under current ownership. A new vehicle which exceeds the size specification may be licensed if the department reviews the manufacturer's specifications and approves the vehicle. (b) Special waste. The EMS provider shall have puncture resistant containers on all vehicles for the disposal of sharps and shall have an arrangement with a hospital or licensed private entity for the exchange of full for empty containers or shall comply with the department rules regarding special waste in sec.sec.1.131-1.137 of this title (relating to Definition, Treatment, and Disposition of Special Waste from Health Care-Related Facilities) (c) Required equipment. The following Basic Life Support (BLS) required equipment must be clean, in working order and shall meet the size, and physical needs of the patient: (1) rigid cervical immobilization devices of types that limit forward, backward, lateral movement or rotation of the head and cervical spine during movement of a patient; (2) (No change.) (3) bag valve mask units which can be used with an external oxygen supply; (4) nonmetallic oropharyngeal airways; (5) oxygen tubing and semi-open valveless, low, moderate, and high concentration, transparent oxygen delivery devices such as masks and cannulas; (6)-(11) (No change.) (12) traction splints; (13) rigid, flexible, air, or vacuum extremity splints, in sufficient sizes for all extremities, of the type that limit movement of extremities during patient movement, and which may be, but are not limited to, any of the following types of splints: (A) padded aluminum, board, or cardboard splints; (B) inflatable or vacuum splints; (C) foam-type rapid splints; (D) wire ladder splints or flexible metal splints; or (E) commercial splints; (14) long and short spine boards with straps to include: (A)-(C) (No change.) (15)-(16) (No change.) (17) sealed obstetrics kit. A sterile commercial kit is acceptable. A non- commercial kit shall be autoclaved or otherwise suitably sterile with the expiration date attached and shall be labeled and include the following: (A)-(L) (No change.) (18) (No change.) (19) sphygmomanometers; (20)-(21) (No change.) (22) one multilevel stretcher capable of being secured to the vehicle and with two clean sheets and two clean blankets; (23) (No change.) (24) two pair protective goggles that offer protection from forward or lateral splashes and sprays; (25) one box latex or rubber gloves, or equivalent; (26) one current copy of the DOT document titled "Emergency Response Guide Book"; (27) a copy of the treatment and transport protocols that were provided in the provider licensing application packet; (28) two portable cylinders with a minimum capacity of 12 cubic feet in each cylinder with one regulator and piped-in medical grade oxygen in a cylinder with at least 107 cubic foot capacity in working order with current inspection stamps or equivalent; and (29) a red biohazardous waste bag or equivalent which is clearly labeled. sec.157.13. Advanced Life Support Level Requirements. (a) Vehicle specifications. All vehicles shall meet the size and shape requirements of Type I, II, or III described in the document entitled "Federal Specification Ambulance Emergency Medical Care Vehicle" as published by the Federal General Services Administration, 1990. A vehicle not meeting these specifications may only be licensed if it has been continuously authorized by the Texas Department of Health (department) under current ownership. A new vehicle which exceeds the size specifications may be licensed if the department reviews the manufacturer's specifications and approves the vehicle. (b) Special waste. The EMS provider shall have puncture resistant containers on all vehicles for the disposal of sharps and shall have an arrangement with a hospital or licensed private entity for the exchange of full for empty containers or shall comply with the department rules regarding special waste in sec.sec.1.131-1.137 of this title (relating to Definition, Treatment, and Disposition of Special Waste from Health Care-Related Facilities). (c) Required equipment. Advanced life support (ALS) required equipment shall include all Basic Life Support (BLS) equipment as provided in sec.157.12 of this title (relating to Basic Life Support Level Requirements) and the following which shall be in sufficient quantities, clean, in working order, and shall meet the size, and physical needs of the patient including: (1) intravenous fluids with administration sets for volume replacement or to keep vein open in quantities and types as in EMS provider's medical treatment protocols/standing orders; (2) 50% Dextrose; (3) advanced airway devices and/or endotracheal tubes in sizes specified by the medical director with laryngoscope and blades; (4) intravenous catheters and/or butterflies; (5) one copy of the Medical Treatment Protocols/Standing Orders that were provided in the provider licensing application packet; and (6) a list signed by the medical director which contains the following items as identified in the medical treatment protocols/standing orders: (A) types and quantities of intravenous solutions; (B) quantities and sizes of intravenous catheters and butterflies; (C) quantities and sizes of endotracheal tubes and/or advanced airway devices; and (D) any specialized equipment required in medical treatment protocols/standing orders. sec.157.14. Mobile Intensive Care Level Requirements. (a) Vehicle specifications. All vehicles shall meet the size and shape requirements of Type I, II, or III described in the document entitled "Federal Specification Ambulance Emergency Medical Care Vehicle" as published by the Federal General Services Administration, 1990 or as in sec.157.15 of this title (relating to Requirements for a Specialized Vehicle License). A vehicle not meeting these specifications may be licensed only if it has continuously been authorized by the Texas Department of Health (department) under current ownership. A new vehicle which exceeds the size specifications may be licensed if the department reviews the manufacturer's specifications and approves the vehicle. (b) Special waste. The EMS provider shall have puncture resistant containers on all vehicles for the disposal of sharps and shall have an arrangement with a hospital or licensed private entity for the exchange of full for empty containers or shall comply with the department rules regarding special waste in sec.sec.1.131-1.137 of this title (relating to Definition, Treatment, and Disposition of Special Waste from Health Care-Related Facilities). (c) Required equipment. Mobile intensive care unit (MICU) required equipment shall include all equipment as provided in sec.157.12 of this title (relating to Basic Life Support Level Requirements) and sec.157.13 of this title (relating to Advanced Life Support Level Requirements) and the following which shall be in sufficient quantities, clean, in working order, and shall meet the age, size, and physical needs of the patient: (1) cardiac monitor with defibrillator and electrodes; (2) drugs as prescribed by the service's medical director's; and (3) one copy of the Medical Treatment Protocols/Standing Orders that was provided in the provider licensing application packet. sec.157.16. Subscription Program. (a) An emergency medical service (EMS) provider who operates or intends to operate a subscription program for the provision of emergency medical services within the provider service area shall meet all the requirements for an EMS provider license as established by the Health and Safety Code, Chapter 773, and rules adopted thereunder. In addition, the EMS provider shall have a written authorization from the governmental entity for the provision of emergency prehospital care within that governmental service area. (b)-(d) (No change.) (e) The EMS provider shall secure a surety bond in the amount equal to the funds to be subscribed. The surety bond must be issued by a company licensed by or eligible to do business in the State of Texas. (f) The requirement for the surety bond may be waived if the provider submits satisfactory evidence of self insurance or the provider has a contract for service with a governmental entity which insures the contract. (g) An EMS provider who provides subscription service shall not deny emergency medical services to nonsubscribers or subscribers of noncurrent status. (h) After verification by the department of compliance with the requirements in this section, the provider shall be sent a letter approving the subscription program. A provider shall not advertise or sell subscriptions until formal approval from the department has been received. (i) The subscription program may be reviewed by the department during spot inspections and shall be reviewed at least every two years when the provider license is renewed. (j) The provider shall submit the names and addresses of subscribers to the department within 30 days after the close of their annual enrollment period or by August 31st each year if the provider does not have an established enrollment period. (k) Failure to comply with the requirements in this section may result in disciplinary action as in sec.157.19 of this title (relating to Emergency Suspension, Suspension, Probation, Revocation of a License, and Administrative Penalty). sec.157.21. First Responder Organization Registry. (a) Application process. (1) An individual or a first responder organization (first responder) as defined in Health and Safety Code, Chapter 773, sec.773.003(16), shall request an application from the Bureau of Emergency Management (bureau) if: (A)-(B) (No change.) (C) the first responder does not transport patients. (2) The first responder shall submit a letter from a governmental agency acknowledging that the organization provides first response in that jurisdiction. (3) The first responder shall submit the completed application signed by the person responsible for the organization and the signature of the medical director if the first responder provides advanced life support (ALS) and/or uses an automated external defibrillator. The medical director shall be the same medical director as the transporting EMS provider; or there shall be a written agreement between medical directors of the first responder and the EMS provider. (4) The first responder shall submit a letter outlining the cooperative relationship with a licensed EMS provider. The letter shall be signed by the responsible persons for the first responder and the licensed EMS provider unless both belong to the same organization. In cases where the first responders and EMS provider are all responsible to the same governing body, the letter may be signed by the person with signature authority for that governing body. (5) An ALS first responder shall have a written agreement if responding with a Basic Life Support (BLS) transporter that stipulates that the first responder ALS personnel shall accompany the patient in the transporter's vehicle when deemed necessary by the ALS first responder personnel or BLS transporter personnel. If there is no written agreement, first responders shall provide BLS care only. (b) (No change.) 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 30, 1995. TRD-9506625 Susan K. Steeg General Counsel Texas Department of Health Effective date: June 22, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 458-7236 EMS Training and Course Approval 25 TAC sec.sec.157.32-157.35 The amendments are adopted under the Health and Safety Code, Chapter 773, which provides the Board of Health with the authority to adopt rules to implement the Emergency Medical Services Act; and sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the Commissioner of Health. sec.157.32. Emergency Care Attendant Training. (a) Course curricula. (1) The minimum curricula shall be the Department of Transportation (DOT) Emergency Medical Services (EMS) First Responder Training Course and the current Federal Emergency Management Agency document entitled "Recognizing and Identifying Hazardous Materials", 1993 which are adopted by reference. Copies may be reviewed during normal working hours in the library of the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (2) In addition to the minimum curricula in paragraph (1) of this subsection, the course shall include curricula on the following subjects: (A)-(E) (No change.) (F) adult, child, and infant cardiopulmonary resuscitation. At the option of the coordinator, cardiopulmonary resuscitation (CPR) curriculum requirements may be met by: (i) including the American Heart Association(AHA) Basic Life Support for Health Care Providers course or its equivalent in the training course and testing each student for CPR proficiency using AHA or American Red Cross (ARC) guidelines; (ii) requiring each student to show CPR proficiency as evidenced by AHA or ARC proof of completion of an AHA Basic Life Support for Health Care Providers course or its equivalent within 12 months of the course application; and/or (iii) requiring each student to show CPR proficiency as evidenced by AHA or ARC proof of completion of an AHA Basic Life Support for Health Care Providers course or its equivalent within 24 months of the course application and testing the student for CPR proficiency using AHA or ARC guidelines sometime prior to course completion. (3)-(4) (No change.) (5) A student shall successfully complete all course requirements as defined by the course coordinator including at a minimum course written examinations and skills proficiency verification before receiving a course completion certificate and becoming eligible to take the state certification examination. The skills verification process shall be supervised by a state certified course coordinator and shall be administered by state certified examiners using state approved skills criteria. (b) Application procedures. The application procedures are outlined in the EMS Education and Training Manual which is adopted by reference. The manual is available for review during normal working hours in the library of the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (c) Course approval criteria. (1) (No change.) (2) Approval of an emergency care attendant training course application shall be dependent upon: (A) submitting a nonrefundable $25 processing fee. A coordinator who receives no remuneration for providing the course shall be exempt from the fee; (B) meeting the requirements in subsections (a) and (b) of this section; (C) meeting all the requirements in the EMS Education and Training Manual relating to ECA training courses; and (D) maintaining a minimum of one instructor to ten students for skills instruction. (3) (No change.) (d) Criteria for course denial. (1) A course may be denied for, but not limited to, the following reasons. If the applicant: (A)-(B) (No change.) (C) has a history of a 20% or higher failure rate on certification examinations by students from previous courses; (D) has a history of consistently negative course evaluations from students in previous courses; (E) fails to meet standards for training facilities as defined in the EMS Education and Training Manual based on a site evaluation; (F) submits names of instructors and/or examiners who are not certified to the appropriate level for the training course as required in sec.157.62 of this title (relating to Program Instructor Certification and sec.157.63 of this title (relating to Examiner Certification) and who are not listed as guest lecturers; and/or (G) starts course without prior approval from the department. (2) (No change.) sec.157.33. Emergency Medical Technician Training. (a) Course curricula. (1) The minimum curricula for the Emergency Medical Technician (EMT) training course shall be the 1984 Department of Transportation (DOT) Basic Training program for EMT-Ambulance and the current Federal Emergency Management Agency document titled "Recognizing and Identifying Hazardous Materials" (HazMat), 1993, which are adopted by reference. (A) Copies of the DOT curriculum and the HazMat document may be reviewed during normal working hours in the library of the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (B) At the option of the coordinator, cardiopulmonary resuscitation (CPR) curriculum requirements may be met by: (i) including the American Heart Association (AHA) Basic Life Support Health Care Provider Course or its equivalent in the training course and testing each student for CPR proficiency using AHA or American Red Cross (ARC) guidelines; (ii) requiring each student to show CPR proficiency as evidenced by AHA or ARC proof of completion of an AHA Basic Life Support Health Care Provider Course or its equivalent within 12 months of the course application; and/or (iii) requiring each student to show CPR proficiency as evidenced by AHA or ARC proof of completion of an AHA Basic Life Support Health Care Provider Course or its equivalent within 24 months of the course application and testing the student for CPR proficiency using AHA or ARC guidelines sometime prior to course completion. (2)-(5) (No change.) (6) Twelve hours of clinical in-hospital training may be completed in a primary care facility which is accredited by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) or the Accreditation Association of Ambulatory Health Care (AAAHC), such as a minor emergency health care facility, if an exception to paragraph (5) of this subsection is requested from and approved by the department. (7) The student shall be required to complete a minimum of three supervised ambulance runs with a licensed provider. The bureau chief may authorize ambulance runs to be completed on federally owned vehicles which are not licensed if evidence is presented that the quality of the experience would be compatible with training criteria and standards. The supervision of ambulance runs shall be provided by an individual certified as at least an EMT or by an appropriately qualified program instructor as determined by the course coordinator. An ambulance run is one in which a patient is transported from the scene to a primary care facility because the patient's condition requires care or one in which the student observes or assists with care at the scene, but the patient is transported by a helicopter, advanced life support (ALS), or mobile intensive care unit (MICU) vehicle. The approval of any other run will be left to the course coordinator who will weigh the educational merits. (8) A student shall successfully complete all course requirements as defined by the course coordinator including at a minimum course written examinations, skills proficiency verification, clinical training, and EMS field internship before receiving a Course Completion Certificate and becoming eligible to take the state certification examination. The skills verification process shall be supervised by a state certified course coordinator and shall be administered by state certified examiners using state approved skills criteria. (b) Application procedures. Procedures are outlined in the EMS Education and Training Manual which is adopted by reference. The manual is available for review during normal working hours in the library of the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (c) Course approval criteria. (1) Criteria for course approval shall be outlined in the EMS Education and Training Manual which is adopted by reference in subsection (b) of this section. (2) Approval of an EMT training course application shall be dependent upon: (A) submitting a nonrefundable $25 processing fee. A coordinator who receives no remuneration for providing the course shall be exempt from the fee; (B) meeting the requirements in subsections (a)-(b) of this section; (C) meeting all the requirements in the EMS Education and Training Manual relating to basic emergency medical technician training courses; and (D) maintaining a minimum of one instructor to ten students for skills instruction. (3) (No change.) (d) Criteria for course denial. (1) A course may be denied for, but not limited to, the following reasons. If the applicant: (A)-(B) (No change.) (C) has a history of a 20% or higher failure rate on certification examinations by students from previous courses; (D) has a history of consistently negative course evaluations from students in previous courses; (E)-(F) (No change.) (G) fails to meet standards for EMS field internship as defined in the EMS Education and Training Manual based on a site evaluation; (H) submits names of instructors or examiners who are not certified to the appropriate level for the training course as required in sec.157.62 of this title (relating to Program Instructor Certification) and sec.157.63 of this title (relating to Examiner Certification); and/or (I) starts the course without prior approval from the department. (2) (No change. ) (e) EMT completion course. (1) (No change.) (2) The minimum curriculum for the EMT Completion Training Course shall be the Texas Department of Health EMT Completion Training Course, 1991, which is adopted by reference. Copies of this curricula may be reviewed during normal working hours in the library of the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (3) (No change.) (4) The AED curriculum as adopted by reference in sec.157.31 of this title is optional and shall be taught only with the approval of an EMS medical director or course medical director and shall be in addition to the 60 hours of instruction in paragraph (5) of this subsection and in addition to the clinical and field internship requirements in paragraphs (6) and (7) of this subsection. (5) -(6) (No change.) (7) Twelve hours of clinical in-hospital training may be completed in a JCAHO or AAAHC accredited primary care facility, such as a minor emergency health care facility, if an exception to paragraph (5) of this subsection is requested from and approved by the department. (8) The student shall be required to complete a minimum of three supervised ambulance runs with a licensed EMS provider. The bureau chief may authorize ambulance runs to be completed on federally owned vehicles which are not licensed if evidence is presented that the quality of the experience would be compatible with training criteria and standards. The supervision of ambulance runs shall be provided by an individual certified as at least an EMT or by an appropriately qualified program instructor as determined by the course coordinator. An ambulance run is one in which a patient is transported from the scene to a primary care facility because the patient's condition requires care or one in which the student observes or assists with care at the scene, but the patient is transported by a helicopter, ALS, or MICU vehicle. The approval of any other run will be left to the course coordinator who will weigh the educational merits. (9)-(10) (No change.) (11) A student shall successfully complete all course requirements as defined by the course coordinator including at a minimum course written examinations, skills proficiency verification, clinical training, and EMS field internship before receiving a Course Completion Certificate and becoming eligible to take the state certification examination. The skills verification process shall be supervised by a state certified course coordinator and shall be administered by state certified examiners using state approved skills criteria. (12) A coordinator may waive clinical and/or ambulance internship for an ECA with three years of verifiable EMS experience with a licensed EMS provider or registered first responder organization. Approval of the waiver will be dependent upon substantiation of qualifying experience including, but not limited to: (A) at least five documented run critiques; and (B) at least three written case studies on medical and trauma patients. (13) All approved waivers and qualifying documentation shall be audited during site visit evaluations. All documentation shall be dated and signed by the director of the EMS provider or first responder to include a letter verifying work experience. sec.157.34. EMT-Intermediate Training. (a) Course curricula. (1) The minimum curricula for the Emergency Medical Technician-Intermediate (EMT-I) training course shall be the Department of Transportation (DOT) EMT-I training curriculum, 1985, adopted by reference. (A) Copies of the DOT curriculum may be reviewed during normal working hours in the library of the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (B) At the option of the coordinator, cardiopulmonary resuscitation (CPR) curriculum requirements may be met by: (i) including the American Heart Association (AHA) Basic Life Support Health Care Provider Course or its equivalent in the training course and testing each student for CPR proficiency using AHA or American Red Cross (ARC) guidelines; (ii) requiring each student to show CPR proficiency as evidenced by AHA or ARC proof of completion of an AHA Basic Life Support Health Care Provider Course or its equivalent within 12 months of the course application; and/or (iii) requiring each student to show CPR proficiency as evidenced by AHA or ARC proof of completion of an AHA Basic Life Support Health Care Provider Course or its equivalent within 24 months of the course application and testing the student for CPR proficiency using AHA or ARC guidelines sometime prior to course completion. (2)-(7) (No change.) (8) The student shall be required to complete a minimum of 50 hours of supervised experience with a licensed EMS provider operating as at least an advanced life support vehicle. The bureau chief may authorize ambulance runs to be completed on federally owned vehicles which are not licensed if evidence is presented that the quality of the experience would be compatible with training criteria and standards. (9)-(10) (No change.) (11) A student shall successfully complete all course requirements as defined by the course coordinator including at a minimum course written examinations, skills proficiency verification, clinical training, and EMS field internship before receiving a Course Completion Certificate and becoming eligible to take the state certification examination. The skills verification process shall be supervised by a state certified course coordinator and shall be administered by state certified examiners using state approved skills criteria. (b) Enrollment. (1)-(3) (No change.) (4) An EMT who is enrolled in an EMT-I course and whose certification expires before the end of the course shall continue to be certified for a period not to exceed 90 days past the expiration date if, before the expiration date of the EMT certificate; (A) a letter of intent to apply for the higher level certification, and evidence of course enrollment is submitted; or (B) an application and nonrefundable fee for EMT recertification is received. (c) Application procedures. Procedures are outlined in the EMS Education and Training Manual, 1993, which is adopted by reference. The manual is available for review during normal working hours in the library of the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (d) Course coordinator qualifications. The course coordinator shall have the following qualifications in order to submit an EMT-I course application: (1) be currently certified as at least an active status EMT-I; (2) have successfully coordinated at least two basic courses, if applying for EMT-I course for the first time. Exceptions to the basic courses may be granted to new coordinators in a college setting who have demonstrated teaching ability; (3) have successfully completed a self study/site visit evaluation for an EMT- I course; and (4) have experience teaching advanced classes. (e) Course approval criteria. (1) Criteria for course approval shall be outlined in the EMS Education and Training Manual which is adopted by reference in subsection (c) of this section. (2) Approval of an EMT-I training course application shall be dependent upon: (A) submitting a nonrefundable $50 processing fee. A coordinator who receives no remuneration for providing the course, shall be exempt from the fee; (B) meeting the requirements in subsections (a)-(c) of this section; (C) a letter of agreement with a course medical director; (D) meeting all the requirements in the EMS Education and Training Manual relating to emergency medical technician-intermediate training courses; and (E) maintaining a minimum of one instructor to ten students for the skills instruction. (3) If the application meets the criteria in this section, the training program shall receive a letter of approval from the department with an assigned course number. (f) Criteria for course denial. (1) A course may be denied for, but not limited to, the following reasons. If the applicant: (A) submits an incomplete application; (B) fails to submit an application in accordance with requirement in subsection (c) of this section; (C) has a history of a 20% or higher failure rate on certification examinations by students from previous courses; (D) has a history of consistently negative course evaluations from students in previous courses; (E) fails to meet standards for training facilities as defined in the EMS Education and Training Manual based on a site evaluation; (F) fails to meet standards for clinical training as defined in the EMS Education and Training Manual based on a site evaluation; (G) fails to meet standards for EMS field internship as defined in the EMS Education and Training Manual based on a site evaluation; and/or (H) submits names of instructors or examiners who are not certified to the appropriate level for the training course as required in sec.157.62 of this title (relating to Program Instructor Certification and sec.157.63 of this title (relating to Examiner Certification); and/or (I) starts the course without prior approval from the department. (2) If an application is denied, a letter will be forwarded to the applicant detailing specific reasons for the denial. sec.157.35. EMT-Paramedic Training. (a) Course Curricula. (1) The minimum curricula for the Emergency Medical Technician-Paramedic (EMT- P) training course shall be the Department of Transportation (DOT) EMT-P, 1983, which the Texas Department of Health adopts by reference in this section. (A) Copies of the DOT curriculum may be reviewed during normal working hours in the library of the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (B) At the option of the coordinator, cardiopulmonary resuscitation (CPR) curriculum requirements may be met by: (i) including the American Heart Association (AHA) Basic Life Support Health Care Provider Course or its equivalent in the training course and testing each student for CPR proficiency using AHA or American Red Cross (ARC) guidelines; (ii) requiring each student to show CPR proficiency as evidenced by AHA or ARC proof of completion of an AHA Basic Life Support Health Care Provider Course or its equivalent within 12 months of the course application, and/or (iii) requiring each student to show CPR proficiency as evidenced by AHA or ARC proof of completion of an AHA Basic Life Support Health Care Provider Course or its equivalent within 24 months of the course application and testing the student for CPR proficiency using AHA or ARC guidelines sometime prior to course completion. (2)-(4) (No change.) (5) The student shall be required to complete a minimum of 100 hours of supervised experience with a licensed emergency medical services (EMS) provider operating as an mobile intensive care unit (MICU) which has capabilities of voice telecommunication with on-line medical direction. The bureau chief may authorize ambulance runs to be completed on federally owned vehicles which are not licensed if evidence is presented that the quality of the experience would be compatible with training criteria and standards. (6)-(7) (No change.) (8) A student shall successfully complete all course requirements as defined by the course coordinator including at a minimum course written examinations, skills proficiency verification, clinical training, and EMS field internship before receiving a Course Completion Certificate and becoming eligible to take the state certification examination. The skills verification process shall be supervised by a state certified course coordinator and shall be administered by state certified examiners using state approved skills criteria. (b) Enrollment. (1)-(2) (No change.) (3) An EMT or EMT-I whose certification expires while enrolled in an EMT-P course is not certified at any level until: (A) successfully completing the recertification requirements for EMT or EMT-I certification as appropriate; or (B) (No change.) (4) An EMT or EMT-I who is enrolled in an EMT-P course and whose certification expires before the end of the course shall continue to be certified for a period not to exceed 90 days past the expiration date if before the expiration date of the EMT or EMT-I certificate: (A) a letter of intent to apply for the higher level certification and evidence of course enrollment is submitted; or (B) an application and nonrefundable fee for EMT or EMT-I recertification as appropriate. (c) Application procedures. Procedures are outlined in the EMS Education and Training Manual, 1993, which is adopted by reference. The manual is available for review during normal working hours in the library of the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (1) Non-accredited EMS training entities may obtain an application for course approval from the Texas Department of Health (department). (2) (No change.) (3) An EMS training entity which has been recognized by the department as accredited by a national accrediting organization shall submit to the department a copy of the self-study for accreditation and a copy of the formal accreditation approval. The EMS training entity shall submit to the department: (A) copies of updates submitted to the national accrediting organization as well as any correspondence from the organization affecting the EMS training entity's accreditation; and (B) (No change.) (d) Course coordinator qualifications. The course coordinator shall have the following qualifications in order to submit an EMT-P course application: (1) be currently certified as at least an active status EMT-P; (2) have successfully coordinated at least two basic courses if applying for EMT-P course for the first time. Exceptions to the basic courses may be granted to new coordinators in a college setting who have demonstrated teaching ability; (3) have successfully completed a self study/site visit evaluation for an EMT- P course; and (4) have experience teaching advanced classes. (e) Course approval criteria. (1) Criteria for course approval shall be outlined in the EMS Education and Training Manual which is adopted by reference in subsection (c) of this section. (2) Approval of an EMT-P training course application shall be dependent upon: (A) submitting a nonrefundable $50 processing fee. A coordinator who receives no remuneration for providing the course, shall be exempt from the fee; (B) meeting the requirements in subsections (a)-(c) of this section; and (C) meeting all the requirements in the EMS Education and Training Manual relating to EMT-P training courses and/or the national accrediting organization; (D) submitting a letter of agreement with a course medical director as well as the course medical director's plan and protocols for comprehensive advanced skills (megacode) testing of each student to evaluate paramedic competency unless the program has received accreditation from a national accrediting organization; and (E) maintaining a minimum of one instructor to ten students for skills instruction. (3) If the application meets the criteria in this subsection, the training program shall receive a letter of approval from the department with an assigned course number. (f) Criteria for course denial. (1) A course may be denied for, but not limited to, the following reasons. If the applicant: (A) submits an incomplete application; (B) fails to submit an application in accordance with requirement in subsection (c) of this section; (C) has a history of a 20% or higher failure rate on certification examinations by students from previous courses; (D) has a history of consistently negative course evaluations from students in previous courses; (E) fails to meet standards for training facilities as defined in the EMS Education and Training Manual based on a site evaluation; (F) fails to meet standards for clinical training as defined in the EMS Education and Training Manual based on a site evaluation; (G) fails to meet standards for EMS field internship as defined in the EMS Education and Training Manual based on a site evaluation; (H) submits names of instructors or examiners who are not certified to the appropriate level for the training course as required in sec.157.62 of this title (relating to Program Instructor Certification and sec.157.63 of this title (relating to Examiner Certification) and who are not listed as guest lecturers; and/or (I) starts the course without prior approval from the department. (2) If an application is denied, a letter will be forwarded to the applicant detailing specific reasons for the denial. (g) EMT-P completion course. (1) Enrollment. (A) Students enrolling in an EMT-P completion course shall be currently certified as an EMT-I; or may be enrolled in an EMT-I training course and shall have completed the classroom portion of the course. (B) The student shall successfully complete the EMT-I training course before certification at the EMT-P level. (C) An EMT-I whose certification expires while enrolled in an EMT-P completion course is not certified at any level until: (i) successfully completing the recertification requirements for EMT-I certification; or (ii) successfully completing the certification requirements for EMT-P certification. (D) An EMT-I who is enrolled in an EMT-P course and whose EMT-I certification expires before the end of the course shall continue to be certified for a period not to exceed 90 days past the expiration date if a letter of intent to apply for the higher level certification and evidence of course enrollment or an application and nonrefundable fee for EMT-I recertification is submitted before the expiration date of the EMT-I certificate. (2) Course curricula. (A) The minimum curriculum for the EMT-P completion course shall be the department EMT-P Completion Training Course which is adopted by reference. Copies may be reviewed during normal working hours in the library of the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (B) Objectives pertaining to the use of rotating tourniquets may be included at the discretion of the course medical director, but if taught shall be in addition to the 100 hours in subparagraph (C) of this paragraph. (C) The course shall include a minimum of 100 hours of didactic instruction on the approved curriculum. (D) The student shall be required to complete a minimum of 90 hours of clinical in-hospital training. (E) A minimum of 24 hours shall be required in the emergency department. (F) The student shall be required to complete a minimum of 50 hours of supervised experience with a licensed EMS provider operating as an MICU which has capabilities of voice telecommunication with on-line medical direction. The bureau chief may authorize ambulance runs to be completed on federally owned vehicles which are not licensed if evidence is presented that the quality of the experience would be compatible with training criteria and standards. (G) At least five runs shall be completed during which the patient receives ALS care. The supervision of this experience shall be provided by an individual certified as an EMT-P or by an appropriately qualified program instructor as determined by the course coordinator. (H) During the clinical and/or EMS field internship, the student shall be required to successfully demonstrate proficiency in endotracheal intubations, peripheral intravenous needle or catheter insertions, and patient assessments, including cardiac monitoring, to the satisfaction of the course medical director and course coordinator. (I) A student shall successfully complete all course requirements as defined by the course coordinator including at a minimum course written examinations, skills proficiency verification, clinical training, and EMS field internship before receiving a course completion certificate and becoming eligible to take the state certification examination. The skills verification process shall be supervised by a state certified course coordinator and shall be administered by state certified examiners using state approved skills criteria. (3) Application procedure for an EMT-P completion course shall be as outlined in subsection (c) of this section. (4) Approval or denial of an EMT-P completion course shall be as outlined in this subsection and in subsections (d) and (e) 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 May 30, 1995. TRD-9506624 Susan K. Steeg General Counsel Texas Department of Health Effective date: June 22, 1995 Proposal publication date: January 6, 1995 For further information, please call: (512) 458-7236 EMS Personnel Certification 25 TAC sec.sec.157.42, 157.46, 157.47, 157.51 The amendments and new sections are adopted under the Health and Safety Code, Chapter 773, which provides the Board of Health with the authority to adopt rules to implement the Emergency Medical Services Act; and sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the Commissioner of Health. sec.157.42. Emergency Medical Services Certification for the Registered Nurse (a) (No change.) (b) Registered nurses covered. Registered nurses licensed to practice in the State of Texas may apply for EMS certification under this section. (c) Levels of EMS personnel certification authorized. An RN may be certified for any level of EMS personnel as described in sec.157.2 of this title (relating to Definitions). Emergency medical technician (EMT) certification shall be required for RNs requesting emergency medical technician-intermediate (EMT-I) or emergency medical technician-paramedic (EMT-P) certification unless special circumstances, such as previous certification as an intermediate or paramedic, exist. Special circumstances shall be reviewed on a case-by-case basis with the final decision being made by the Texas Department of Health's (department) Bureau of Emergency Management bureau chief. (d) Certification requirements. The RN shall: (1) complete an application for certification; (2)-(3) (No change.) (4) submit a copy of an American Heart Association (AHA) or American Red Cross (ARC) cardiopulmonary resuscitation (CPR) successful course completion as follows: (A) for ECA and EMT certification, the "AHA Course: Basic Life Support for Healthcare Providers" or the "ARC CPR Basic Life Support for the Professional Rescuer" course; and (B) (No change.) (5) submit a copy of work history for the 36 months preceding the date of application, including positions held and place of employment and evidence of proficiency in endotracheal intubation; (6) complete extrication, clinical in-hospital, and EMS vehicle requirements for EMT certification; or complete clinical in-hospital, and EMS vehicle requirements for EMT-I or EMT-P certification as required in sec.sec.157.33- 157.35 of this title (relating to EMS Training and Course Approval): (A)-(B) (No change.) (7) meet the requirements for certification as described in sec.157.41(a)(6) of this title; and (8) have verification of skills proficiency as described in sec.157.41(a)(5)(A)-(C) of this title as applicable. However, if the RN has completed a department approved training course, the RN shall be considered as any other applicant for EMS certification and shall meet the requirements in sec.157.41 of this title. (e) Examination scheduling. The department has final authority for scheduling all written and skills certification examination sessions. The department shall administer examinations at regularly scheduled times. It is the responsibility of the RN to make arrangements that are necessary to complete the examination requirements. The department is not required to set special examination schedules for those requesting examination or re-examination. (f) Examination failure. The RN shall take the examination for certification no later than 180 days after the acceptance of the application or course completion date, if applicable. However, the RN who fails the certification examination may retest one time provided a nonrefundable fee of $25 accompanies the request for a retest. All retests shall be completed within the 180-day period. The RN who fails the retest shall successfully complete the EMS training course as required in sec.sec.157.33-157.35 of this title prior to being eligible for EMS certification. (g) Certification period. After verification by the department of the information submitted , the RN who meets the requirements in these sections shall be certified for four years commencing on the date of issuance of a certificate and a wallet-size certificate signed by department officials. A certificate is not transferable. The wallet-size certificate shall be carried by the RN while on duty with an EMS provider. A duplicate certificate may be issued following the submission of a request for duplicate certificate form and a nonrefundable fee of $5.00. (h) Recertification requirements. The RN who receives EMS personnel certification shall comply with the requirements of sec.157.45 of this title (relating to Recertification). (i) Other requirements. The following sections shall be applicable to this section: sec.157.51 of this title (relating to Criteria for Emergency Suspension, Suspension, Probation, and Decertification of an EMS Certificate); and sec.157.44 of this title (relating to Certification of Persons With Criminal Backgrounds to be Emergency Medical Services Personnel). sec.157.46. Certification by Reciprocity for EMS Personnel. (a) An out-of-state certified emergency medical services (EMS) person or a national registry certified EMS person may apply for Texas certification by reciprocity. (b) The candidate shall: (1)-(2) (No change.) (3) submit to the Texas Department of Health (department) the completed application and a nonrefundable administrative fee of $100 which includes a prorated certification fee of: (A) $20 for an emergency medical technician-intermediate (EMT-I) or an emergency medical technician-paramedic (EMT-P); and (B) $13 for an EMT. (c) (No change.) (d) Prior to or within 90 days of the expiration of the one year certificate, the certificant shall be required to: (1) complete 25% of the continuing education hours required in sec.157.38 of this title (relating to Continuing Education) for the certification level, or complete a department approved refresher course; (2) complete the skills proficiency verification as described in sec.157.41(a)(5) of this title (relating to Certification); (3) submit a completed personnel certification application and nonrefundable fee required in sec.157.41(a)(4) of this title; and (4) achieve a passing grade of 70 on the department's certification examination, and in addition, achieve a passing grade of 70 on the critical components of the examination. (e) A candidate who fails the certification examination may retest on the examination one time provided a nonrefundable fee of $25, if applicable, accompanies the request for the retest and that the retest be completed no later than 90 days after the expiration of the certificate. (f) (No change.) (g) After verification by the department of the information submitted, a candidate who meets the requirements in subsection (d) of this section shall be certified for four years commencing on the date of issuance of a certificate and a wallet-size certificate signed by department officials. (h) A certificate is not transferable. The walletsize certificate shall be carried by personnel while on duty. A duplicate certificate may be issued following the submission of the request for a duplicate certificate form and a nonrefundable fee of $5.00. (i) A candidate who does not complete the requirements for certification within 90 days after the expiration date of the one-year certificate shall meet the requirements of sec.157.45(d) of this title (relating to Recertification) and shall meet the requirements of sec.157.41(a) (5) and (6) of this title. (j) A candidate from outside the United States may become certified in Texas by: (1) submitting a personnel application and nonrefundable administrative fee of $200 which includes the certification fee as in sec.157.41(a)(4) of this title; (2) submitting a copy of the curriculum for the EMS course taken by the applicant; (3) submitting evidence of successful course completion and certification or licensure; (4) making up deficiencies identified during curriculum review or successfully completing a department-approved refresher course if indicated; (5) completing skills proficiency verification as required in sec.157.41(a)(5) of this title; and (6) passing the certification examination as required in sec.157.41(a)(6) of this title. (k) A candidate from outside the United States may not be certified or be identified as an EMS certificant until completing requirements in subsection (j) of this section. sec.157.47. Emergency Medical Services Personnel Certification for the Physician Assistant. (a) Purpose. The purpose of this section is to establish the requirements for the emergency medical services (EMS) personnel certification of the physician assistant (PA) licensed to practice in the State of Texas. (b) PAs covered. PAs who are licensed to practice in the State of Texas may obtain EMS personnel certification. (c) Levels of EMS personnel certification authorized. A PA may be certified for any level of EMS personnel as described in sec.157.2 of this title (relating to Definitions). Emergency medical technician (EMT) certification shall be required for PAs requesting emergency medical technician-intermediate (EMT-I) or emergency medical technician-paramedic (EMT-P) certification unless special circumstances such as previous certification as an intermediate or paramedic exist. Special circumstances shall be reviewed on a case-by-case basis with the final decision being made by the bureau chief. (d) Certification requirements. The PA shall: (1) complete the application for certification; (2) submit to the Texas Department of Health (department) the application and the applicable nonrefundable fee as set out in sec.157.41(a)(4) of this title (relating to Certification); (3) submit a copy of their current PA license; (4) submit a copy of an American Heart Association (AHA) or American Red Cross (ARC) cardiopulmonary resuscitation (CPR) successful course completion as follows: (A) for emergency care attendant (ECA) and EMT certification the "AHA Course Basic Life Support for Healthcare Providers" or the "ARC CPR Basic Life Support for the Professional Rescuer" course; and (B) for EMT-I or EMT-P certification, the "AHA Advanced Cardiac Life Support (ACLS)" course; (5) submit a copy of work history for the 36 months preceding the date of application, including positions held and place of employment and evidence of proficiency in endotracheal intubation; (6) complete extrication, clinical, in-hospital, and EMS vehicle requirements for EMT certification; or complete clinical, in-hospital, and EMS vehicle requirements for EMT-I or EMT-P certification as required in sec.sec.157.33- 157.35 of this title (relating to EMS Training and Course Approval); and/or (A) the clinical, in-hospital, and/or EMS vehicle requirements may be waived after evaluation by the department of the 36-month work history; or (B) the PA who has 12 months combined experience in an emergency department, operating/recovery department, other critical care unit(s), or EMS vehicle experience may have requirements for clinical experience waived for the level of certification requested; and (7) meet the requirements for certification as described in sec.157.41(a)(6) of this title and have verification of skills proficiency as described in sec.157.41(a)(5)(A)-(C) of this title, as applicable. However, if the PA has completed a department-approved training course, the PA shall be considered as any other applicant for EMS certification and shall meet the requirements of sec.157.41 of this title. (e) Examination scheduling. The department has final authority for scheduling all written examination sessions. The department shall administer examinations at regularly scheduled times. It is the responsibility of the PA to make arrangements that are necessary to complete the examination requirements. The department is not required to set special examination schedules for those who request examination or reexamination. (f) Examination failure. The PA shall take the examination for certification no later than 180 days after the acceptance of the application or course completion date, if applicable. However, the PA who fails the examination may retest on the examination one time provided a nonrefundable fee of $25 accompanies the request for retest. The retest shall be completed within the 180-day period. The PA who fails the retest shall complete the EMS training course as required in sec.sec.157.32-157.35 of this title prior to being eligible for EMS certification. (g) Certification period. After verification by the department of the information submitted, the PA who meets the requirements in this section shall be certified for four years commencing on the date of issuance of a certificate and a wallet-size certificate signed by department officials. A certificate is not transferable. The wallet-size certificate shall be carried by personnel while on duty with an EMS provider. A duplicate certificate may be issued following the submission of a request for duplicate certificate form and a nonrefundable fee of $5.00. (h) Recertification requirements. The PA who receives EMS personnel certification shall comply with the requirements of sec.157.45 of this title (relating to Recertification). (i) Other requirements. The following sections shall be applicable to this section: sec.157.51 of this title (relating to Criteria for Emergency Suspension, Suspension, Probation, and Decertification of an EMS Certificate); and sec.157.44 of this title (relating to Certification of Persons With Criminal Backgrounds to be Emergency Medical Services Personnel). sec.157.51. Criteria for Emergency Suspension, Suspension, Probation, and Decertification of an EMS Certificate. (a) Emergency suspension. Emergency medical services (EMS) personnel certified by the Texas Department of Health (department) may be subject to, but not limited to, the following disciplinary action. (1) The department's Bureau of Emergency Management bureau chief shall issue an emergency order to suspend any certificate issued under the Emergency Medical Services Act if the bureau chief has: (A) reasonable cause to believe that the conduct of any certificate holder creates an imminent danger to the public health or safety; or (B) evidence that a certificant has failed to complete biennial continuing education (CE) requirements as stated in sec.157.38 of this title (relating to Continuing Education). (2) An emergency suspension shall be effective immediately without a hearing upon notice to the certificate holder. Notice must also be given to the sponsoring governmental entity if the holder is exempt from the payment of fees under the Health and Safety Code, Chapter 773, sec.773.0581, or to the EMS provider if not exempt from the payment of fees. (3) On written request of the certificate holder, the department shall conduct a hearing not earlier than the tenth day nor later than the 30th day after the date on which a hearing request is received to determine if the emergency suspension is to be continued, modified, or rescinded. The hearing and appeal from a disciplinary action related to the hearing shall be in accordance with sec.sec.1.21-1.34 of this title (relating to Formal Hearing Procedures) and the Administrative Procedure Act, Government Code, Chapter 2001. (b) Nonemergency suspension and decertification. The department may suspend or decertify an EMS personnel certificate for, but not limited to, the following reasons. If the certificant: (1) fails to follow the EMS standards of care in the management of a patient; (2) fails to administer medications and/or treatments in a responsible manner in accordance with the medical director's orders or protocols; (3) fails to maintain confidentiality of patient information obtained in the course of professional work; (4) performs advanced level treatment without medical direction or supervision; (5) fails to comply with the terms of a probation or suspension; (6) issues a check for application for examination for recertification which has been returned to the department or its agent for insufficient funds; (7) discriminates in the provision of services based on national origin, race, color, creed, religion, sex, sexual preference, age, physical or mental disability, or economic status; (8) is under the influence of alcohol or is using a controlled substance, as defined by the Health and Safety Code, Chapter 481, and/or Chapter 483, which affects the certificant's ability to render aid according to accepted procedures or protocol; (9) represents that he or she is qualified at any level other than his or her current certification; (10) abandons a patient; (11) appropriates and/or possesses without authorization medications, supplies, equipment, or personal items inappropriately acquired in the course of duty; (12) materially alters any department EMS certificate, or uses and/or possesses any such altered certificate; (13) repeats an offense which resulted in suspension and/or probation of the certificate or has a history of two or more offenses within a two-year period; (14) cheats and/or assists another to cheat on the department's examinations for certification or recertification; (15) attempts to obtain or obtains certification or recertification by fraud, forgery, deception, misrepresentation, or subterfuge; and/or assists or attempts to assist another to obtain certification by fraud, forgery, deception, misrepresentation, or subterfuge; (16) has been convicted of a misdemeanor or felony in accordance with the provisions of sec.157.44 of this title (relating to Certification of Persons with Criminal Backgrounds to Be Emergency Medical Services Personnel); (17) practices beyond the scope of certification without medical direction; (18) illegally dispenses, administers, or distributes controlled substances as defined by the Health and Safety Code, Chapter 481 and/or Chapter 483; (19) performs medical acts beyond those permitted by the medical director; (20) intentionally falsifies a patient record; (21) has an EMS certificate or license suspended or revoked in another state, or has another health provider certificate/license suspended or revoked while holding a Texas EMS certificate; (22) obtains or attempts to obtain any benefit to which not otherwise entitled by duress, coercion, fraud, or misrepresentation while in the course of duties as an EMS certificant; (23) fails to comply with Health and Safety Code, Chapter 773 and rules adopted thereunder; (24) fails to give the department or its authorized representative full and complete information, upon request, regarding an alleged or confirmed violation of Health and Safety Code, Chapter 773 or rules adopted thereunder; (25) violates any rule or standard that would jeopardize the health or safety of a patient, the public, or other EMS personnel, or that has a potential negative affect on the health or safety of a patient; (26) falsifies an application for certification or recertification; (27) fails to complete continuing education requirements as described in sec.157.38 of this title; or (28) abuses alcohol or drugs that, in the opinion of the bureau chief, could endanger the lives of patients. (c) Probation. For just and sufficient reasons presented by the certificant, the department may probate the suspension and may specify the terms of the probation which may include: (1) decertification if the individual violates a standard or provision of the Health and Safety Code, Chapter 773 or rules adopted thereunder during the probation period; (2) any terms or conditions that the certificant maintain certification or recertification requirements during the probation; and (3) the length of time of the probation. (d) Notification. If the department proposes to suspend, revoke, or probate a certificate, the department shall notify the certificant by registered or certified mail and it shall be sufficient if sent to the certificant's last known address as shown in the department's records. The notice must state the alleged facts or conduct to warrant the action and state that the certificant has an opportunity to request a hearing in accordance with sec.sec.1.21-1.34 of this title. (e) Hearing request. (1) The certificant may request a hearing within 15 days after the date of the notice. This request shall be in writing and submitted to the bureau chief. If a hearing is requested, the hearing shall be conducted pursuant to the Administrative Procedure Act, Government Code, Chapter 2001, and sec.sec.1.21- 1.34 of this title. (2) If the certificant does not request a hearing in writing, after being sent the notice of opportunity, the certificant is deemed to have waived the opportunity for a hearing and the certificant shall be decertified, suspended, or placed on probation. (f) Reapplication. Two years after the decertification, an individual may petition the department in writing for reapplication for certification. The department shall evaluate the petition and may allow an application for certification to be submitted. However, the department may deny the application if the reason for decertification continues to exist. If the application is allowed, the individual shall be required to meet the requirements for certification as described in sec.157.41 of this title (relating to Certification). (g) Expiration of a certificate during suspension. An individual whose certificate expires during the period of suspension may apply for recertification on the day following the expiration of the suspension. The individual shall meet the requirements for late recertification as described in sec.157.45 of this title (relating to Recertification). 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 30, 1995. TRD-9506627 Susan K. Steeg General Counsel Texas Department of Health Effective date: June 22, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 458-7236 25 TAC sec.157.52 The repeal is adopted under Health and Safety Code, Chapter 773, which provides the Board of Health with the authority to adopt rules to implement the Emergency Medical Services Act; and sec.12.001, which provides the Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Board of Health, the Department of Health, and the Commissioner of Health. 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 30, 1995. TRD-9506630 Susan K. Steeg General Counsel Texas Department of Health Effective date: June 22, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 458-7236 Emergency Medical Services Course Coordinator, Program Instructor, and Examiner Certification 25 TAC sec.sec.157.61-157.64 The amendments and new section are adopted under the Health and Safety Code, Chapter 773, which provides the Board of Health with the authority to adopt rules to implement the Emergency Medical Services Act; and sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the Commissioner of Health. sec.157.61. Course Coordinator Certification. (a) (No change.) (b) Certification. A course coordinator candidate shall: (1) (No change.) (2) have active status EMS personnel certification as follows: (A) be currently certified as at least an EMT; (B) in lieu of EMS personnel certification, be a physician licensed to practice in the State of Texas or a registered nurse (RN) licensed to practice in the State of Texas; and (C) be currently certified as a program instructor for at least two years which shall include at least 40 hours of documented EMS teaching experience within two years prior to the coordinator application; and (D) be currently certified as a state skills examiner; (3) complete the application for course coordinator certification and include the following: (A) a nonrefundable fee of $25; except a fee shall not be required if compensation is not received for coordinating training courses or programs; (B) (No change.) (C) letters of intent from potential providers of clinical and EMS vehicle experience based on the requirements of the national DOT curricula standards as adopted by reference in sec.sec.157.32-157.35 of this title (relating to EMS Training and Course Approval) or a written statement from the candidate attesting to the fact that they will coordinate only ECA classes Copies of the DOT curriculum may be reviewed during normal working hours in the library of the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756; (4) complete the department-approved EMS course coordinator training program; and (5) achieve a passing grade which shall be determined by the department for the course coordinator certification examination and retest, if necessary. The retest shall be taken within 180 days of completion of the coordinator training course (c) Period of certification. After verification by the department of the information submitted by the candidate, the candidate who meets the requirements of subsection (b) of this section shall be certified as a course coordinator for two years commencing on the date of issuance of the certificate, except that the department may issue an initial certificate for less than two years in order to conform to two-year continuing education reporting and personnel certification expiration dates. The fee for this first certification period will be $12.50 per year. Any portion of a year will be counted as a full year. (d) Responsibilities. A course coordinator shall have the following responsibilities: (1) successfully complete the self study/site visit process as outlined in the EMS Education and Training Manual adopted by reference in sec.157.33 of this title (relating to Emergency Medical Technician Training, to include the following nonrefundable fees for coordinators who receive remuneration for providing courses: (A) $100 basic, and $250 advanced, for a complete self-study/site visit process; and (B) $25 basic, and $50 advanced, for a review of a self-study when no site visit is required. (2) plan for and evaluate the overall operation of the course which includes personal interaction with and supervision of all courses for which he or she is responsible; (3) select the classroom, clinical, and EMS provider training facilities conducive to meeting the Department of Transportation (DOT) curricula requirements for the level of course to be conducted; (4) forward course approval documents and fees, if applicable, to the department within established timeframes; (5) process student applications and select students; (6) maintain an adequate inventory of training equipment including audio- visual resources; (7) schedule classes and assign program instructors and guest lecturers. A guest lecturer is an individual who, upon the request of the course coordinator, conducts specific classroom lectures based upon expertise in a given subject area; (8) assure that training equipment is available and operational for each practice session; (9) coordinate course written examinations, skills proficiency verification and evaluate students; (10) evaluate the effectiveness of the program instructors and guest lecturers; (11) act as liaison between the students, program instructors, the EMS entity, and the department; (12) supervise and evaluate the effectiveness of the clinical and EMS vehicle training; (13) verify the instructional hours for each certified program instructor; (14) arrange for and supervise verification of skills proficiency of each student by a state certified skills examiner; (15) keep skills verification on file for five years or delegate skills record retention to skills examiner; and (16) attest to the successful course completion of each student. (e) Exception. If an urgent situation for an EMS training program exists and cannot be met by the area's training resources, an individual may request the department's Bureau of Emergency Management (bureau) to grant an exception for course coordinator certification. (1) The request shall be in writing and shall include the following: (A)-(B) (No change.) (C) letters of intent from providers of clinical and EMS vehicle experience based on the requirements of the training curricula standards as described in sec.sec.157. 32-157.35 of this title. A letter of intent from the potential course medical director shall be required for advanced level course coordinator applicants. (2) The request shall be reviewed and the evaluation shall be based on, but not limited to, the following: (A)-(D) (No change.) (3) (No change.) (4) An individual who is approved shall be considered a temporary course coordinator and shall meet the requirements of subsection (d) of this section. The individual has one year from the time of the temporary approval to complete the requirements for course coordinator certification. If all requirements are not met, temporary status shall cease and the individual shall meet the requirements in subsection (b) of this section prior to certification as a course coordinator. (f) Recertification. (1) To be eligible for recertification the course coordinator shall: (A) maintain EMS certification or professional licensure as required in subsection (b) of this section; (B) (No change.) (C) attend regional EMS updates for course coordinators as required by the department; (D) coordinate a minimum of one department-approved course as described in sec.sec.157.32-157.35 of this title or conduct one department-approved refresher course per two years or conduct an ongoing continuing education program as described in sec.157.38 of this title (relating to Continuing Education); (E) submit the application for recertification and a nonrefundable fee of $25; except a fee shall not be required if compensation is not received for coordinating a training course or program; (F) maintain a rate of 80% of all students passing the department's certification examination during the two-year course coordinator certification period. However, an exception to this requirement may be granted for extenuating circumstances; and (G) maintain adherence to standards for course content as required in sec.sec.157. 32-157.35 of this title as evidenced by site visit evaluation of training courses. (2) (No change.) (g) Late recertification. (1) If the application and nonrefundable fee for recertification are postmarked within 90 days following the expiration date, and the applicant met the requirements of subsection (f)(1) of this section, the applicant shall: (A) remain certified through the 90 days; (B) have no new courses approved until the recertification process has been completed; and (C) submit an additional nonrefundable $25 late fee. (2) If the application and nonrefundable fee for recertification are postmarked after 90 days beyond the expiration date but within one year of the expiration date, and the applicant met the requirements of subsection (f)(1) of this section during the most recent coordinator certification period, the applicant shall: (A) not be certified until the recertification process is complete; (B) complete a regional coordinator information update; (C) successfully complete the course coordinator certification examination; and (D) submit an additional nonrefundable $25 late fee. (3) If the application and nonrefundable fee for recertification are postmarked after one year beyond the expiration date, and the applicant met the requirements of subsection (f)(1) of this section during the most recent coordinator certification period, the applicant shall: (A) complete a course coordinator course; (B) successfully complete the course coordinator certification examination; and (C) be currently certified as a state skills examiner. sec.157.62. Program Instructor Certification. (a) (No change.) (b) Certification. A program instructor candidate shall: (1) (No change.) (2) have active status EMS personnel certification as follows: (A) be currently certified as at least an EMT to be a basic program instructor; (B) be currently certified as at least an EMT-I to be an intermediate program instructor; (C) be currently certified as an EMT-P to be an advanced program instructor; or (D) (No change.) (3) complete the application for program instructor certification and include the following: (A) (No change.) (B) a letter of endorsement by a course coordinator who is familiar with instructional capabilities and work experience of the candidate; (4) complete the Texas Department of Health (department) approved EMS instructor training program; and (5) achieve a passing grade which shall be determined by the department for the written program instructor certification examination and retest, if necessary. The retest shall be taken within 180 days of completion of program instructor course. (c) Period of certification. After verification by the department of the information submitted by the candidate, the candidate who meets the requirements of subsection (b) of this section shall be certified as a course coordinator for two years commencing on the date of issuance of the certificate, except that the department may issue an initial certificate for less than two years in order to conform to two-year continuing education reporting and personnel certification expiration dates. The fee for this first certification period will be $12.50 per year. Any portion of a year will be counted as a full year. (d) Responsibility. A program instructor shall have the following responsibilities: (1) prepare and present the lecture/demonstration lessons assigned in accordance with the lesson objectives as required in the EMS training curricula as required in sec.sec.157. 32-157.35 of this title (relating to EMS Training and Course Approval) ; and (2) (No change.) (e) Exception. If an urgent situation for an EMS training program exists and cannot be met by the area's training resources, a course coordinator may request the department's Bureau of Emergency Management (bureau) to grant an exception for program instructor certification. (1)-(3) (No change.) (4) An individual who is approved shall be considered a temporary program instructor and shall meet the requirement of subsection (d) of this section. The individual has one year from the time of the temporary approval to complete the requirements for program instructor certification. (f) Recertification. (1) To be eligible for recertification, the program instructor shall: (A) maintain active status EMS certification or professional licensure as required in subsection (b) of this section; (B)-(C) (No change.) (D) submit the application for recertification and a nonrefundable fee of $25, except a fee shall not be required if compensation is not received for instructing in the training course or program; (E) be evaluated on teaching effectiveness by a course coordinator and be recommended for recertification by a course coordinator who completed an evaluation; (F) be evaluated on performance of students during the skills proficiency verification process and/or written examination dependent on the program instructor's teaching responsibility as defined by the course coordinator; (G) maintain adherence to standards for course content as required in sec.sec.157.32-157.35 of this title; and as evidenced by site visit evaluation of the teaching sessions; and (H) instruct a minimum of 40 hours per two years. (2) After verification by the department of the information submitted by the certified program instructor, the program instructor who meets the requirements of paragraph (1) of this subsection shall be recertified for two years commencing on the day following the expiration of the current certificate. (g) Late recertification. If an application and nonrefundable fee is received within 90 days following the expiration date, and the applicant met the requirements of subsection (f)(1) of this section during the most recent instructor certification period, the applicant shall: (1) continue to be certified through the 90 days; and (2) submit an additional nonrefundable $25 late fee. (h) Re-entry. If the recertification process is not complete within the 90-day period the applicant is not certified and will need to meet the requirements in subsection (b)(1)-(3) of this section to qualify for recertification. A nonrefundable late fee of $25 shall accompany any application for recertification that is received within one year of the expiration date. sec.157.63. Examiner Certification. (a) General. An examiner is an individual who conducts the skills proficiency verification required for emergency medical services (EMS) personnel certification and recertification under the direction of a course coordinator. An examiner may be certified as a basic examiner, as an intermediate examiner, or as an advanced examiner. (1) A basic examiner shall conduct the basic skills proficiency verification for the emergency care attendant (ECA) and the emergency medical technician (EMT) level of certification and may conduct the basic skills proficiency verification for the emergency medical technician-intermediate (EMT-I) and the emergency medical technician-paramedic (EMT-P) level of certification. (2) An intermediate examiner shall conduct the advanced skills proficiency verification required for EMT-I level of certification but may conduct the basic skills proficiency verification for the ECA or EMT level of certification. An intermediate examiner may conduct the basic and intermediate skills proficiency verification for the EMT-P level of certification. (3) An advanced examiner shall conduct the advanced skills proficiency verification required for EMT-P level of certification and may conduct the advanced and basic skills proficiency verification required for EMT-I, ECA or EMT levels of certification. (b) Certification. An examiner candidate shall: (1) (No change.) (2) have active status EMS personnel certification as follows: (A)-(D) (No change.) (3) (No change.) (4) submit a letter of endorsement from a course coordinator who is familiar with capabilities and work experience of the candidate; (5) complete the Texas Department of Health (department) examiner training program; (6) achieve a passing grade on the department's examiner examination, retest and evaluation as in paragraph (7) of this subsection which shall be completed within 180 days of completion of examiner training program; and (7) conduct a minimum of one proficiency verification session under the supervision of the department's designated evaluator at which time the candidate will be evaluated on his or her ability to administer and verify skills proficiency. (c) Period of certification. After verification by the department of the information submitted by the candidate, the candidate who meets the requirements of subsection (b) of this section shall be certified as an examiner for two years commencing on the date of issuance of the certificate, except that the department may issue an initial certificate for less than two years in order to conform to two-year continuing education reporting and personnel certification expiration dates. The fee for this first certification period will be $12.50 per year. Any portion of a year will be counted as a full year. (d) Independent examiners. An examiner wishing to verify skills proficiency for recertifying persons not associated with a course coordinator shall have prior approval from the department. If skills proficiency verification is conducted before such approval, the verification process shall be considered invalid and the examiner shall be subject to disciplinary action as described in sec.157.64 of this title (relating to Criteria for Suspension, Probation, and Decertification of Course Coordinator, Program Instructor, and/or Examiner Certification). Individuals meeting approval shall: (1) have access to a complete set of skills equipment for the applicable level of certification; (2) have been certified as an examiner for at least three years; (3) have a department-approved plan and protocols for comprehensive advanced skills (megacode) testing of candidates when evaluating paramedic competency; (4) have documented evidence of outstanding performance as a skills examiner as in positive evaluations and no substantiated complaints; and (5) maintain documentation of all skills proficiency verification which shall be subject to audit for up to five years following the date of the verification process. (e) Responsibilities. An examiner shall have the following responsibilities: (1) conduct the proficiency verification in an objective manner according to the criteria and standards established by the department for each skill examined; (2) validate the proficiency verification results on form(s) prescribed by the department; and (3) at the coordinator's discretion, maintain documentation of all skills proficiency verification which shall be subject to audit for up to five years following the date of the verification process. (f) Recertification. (1) To be eligible for recertification the examiner shall: (A) maintain EMS certification as required in subsection (b) of this section or professional licensure; (B) attend seminars and regional EMS updates as required for examiners; (C) verify proficiency in at least 20 skill performances per two years; (D) have a satisfactory evaluation of the proficiency verification session(s) by a department designated evaluator; (E) submit the application for recertification and a nonrefundable fee of $25 except a fee shall not be required if compensation is not received for proficiency verification sessions; and (F) maintain adherence to criteria and standards for objectively conducting the department's skills proficiency verification process required in sec.157.41 of this title (relating to Certification) and sec.157.45 of this title (relating to Recertification). (2) After verification by the department of the information submitted by the examiner certificant, the examiner who meets the requirements of paragraph (1) of this subsection shall be recertified for two years commencing on the day following the expiration of the certificate. (g) Late recertification. If an application and nonrefundable fee for recertification is received within 90 days following the expiration date and the applicant met the requirements of subsection (f)(1) of this section during the most recent examiner certification period, the certification will continue for the 90-day period. The applicant shall qualify for recertification by submitting an additional nonrefundable $25 late fee. (h) Late application with expired certification. If the application and nonrefundable fee is submitted more than 90 days after the expiration date but within one year of the expiration date, the applicant is not certified. The applicant shall qualify for recertification by: (1) submitting an additional nonrefundable $25 late fee; and (2) completing a regional information update for examiners. (i) Re-entry. If an application and nonrefundable fee is received more than one year after the expiration date, the applicant will need to meet the requirements of subsection (b) of this section prior to becoming eligible for certification. sec.157.64. Criteria for Emergency Suspension, Suspension, Probation, and Decertification of Course Coordinator, Program Instructor, and/or Examiner Certification. (a) Emergency medical services (EMS) course coordinators, program instructors, and/or examiners certified by the Texas Department of Health (department) may be subject to, but not limited to, the following disciplinary action. (1) Emergency suspension. The department's Bureau of Emergency Management bureau chief shall issue an emergency order to suspend a course coordinator, program instructor, and/or examiner's certificate, if the individual's EMS active status personnel certification lapses, or if the individual is decertified. (2) Suspension or decertification. The department may suspend or decertify a course coordinator, program instructor, and/or examiner certificate for, but not limited to, the following reasons. If the certificant: (A) fails to maintain active status EMS personnel certification at the appropriate level or professional licensure; (B) fails to maintain recertification requirements as described in sec.157.61(f) of this title (relating to Course Coordinator Certification), sec.157.62 of this title (relating to Program Instructor Certification), and sec.157.63 of this title (relating to Examiner Certification); (C) falsifies the application for course coordinator, program instructor, and/or examiner certification; (D) falsifies the course completion certificate or any other document that records or verifies course activity and/or is a part of the course record; (E) repeats an offense or commits an offense of a different nature within 12 months of a previous suspension or probation; (F) cheats on the department's course coordinator, program instructor, and/or examiner examination; (G) compromises the department approved course examination process; (H) fails to maintain the integrity of the course; (I) falsifies the course approval or continuing education (CE) application; (J) fails to maintain sponsorship with an EMS provider or EMS training entity; (K) compromises the safety of students and class participants; (L) allows the recurrent use of inadequate, inoperable, or malfunctioning equipment; (M) repeatedly allows inadequate class presentations; (N) demonstrates a lack of supervision of program instructors, guest instructors, and/or examiners; (O) fails to complete and submit the course and/or CE application and student documents within the time frames established in sec.sec.157.32-157.35 of this title (relating to EMS Training and Course Approval) or sec.157.38 of this title (relating to Continuing Education); (P) fails to maintain professionalism in the department approved course; (Q) issues a check with a course coordinator, program instructor, or examiner application which has been returned to the department or its agent for insufficient funds; (R) fails to comply with responsibilities of a course coordinator, program instructor, or examiner as specified in sec.sec.157.61-157.63 of this title (relating to Emergency Medical Services Course Coordinator, Program Instructor, and Examiner Certification. (S) compromises or falsifies the department's skills verification process and/or standards; or (T) fails to maintain records as specified in sec. sec.157.61-157.63 and 157.38 of this title. (b) Probation. For just and sufficient reasons presented by a course coordinator, program instructor, and/or examiner, the department may probate the suspension. (c) Notification. If the department proposes to suspend, decertify, or probate a course coordinator, program instructor and/or examiner certificate, the department shall notify the certificant by registered or certified mail at the certificant's last known address as shown in the department's records. The notice must state the alleged facts or conduct to warrant the action and state that the certificant has an opportunity to request a hearing in accordance with sec.sec.1.21-1.34 of this title (relating to Formal Hearing Procedures). (1) The certificant may request a hearing within 15 days after the date of the notice. This request shall be in writing and submitted to the bureau chief. If a hearing is requested, the hearing shall be conducted pursuant to the Administrative Procedure Act, Government Code, Chapter 2001, and sec.sec.1.21- 1.34 of this title. (2) If the certificant does not request a hearing in writing, after being sent the notice of opportunity, the certificant waives the opportunity for a hearing and the certificant shall be decertified, suspended, or placed on probation. (d) Reapplication. Two years after the decertification, an individual may petition the department, in writing for reapplication for certification. The department shall evaluate the petition and may allow an application for certification to be submitted. However, the department may deny the application if the reason for decertification continues to exist. (e) Expiration of a certificate during suspension. An individual whose certificate expires during the period of suspension may apply for certification in accordance with sec.sec.157.61-157.63 of this title as applicable. 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 30, 1995. TRD-9506629 Susan K. Steeg General Counsel Texas Department of Health Effective date: June 22, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 458-7236 25 TAC sec.157.64 The repeal is adopted under the Health and Safety Code, Chapter 773, which provides the Board of Health with the authority to adopt rules to implement the Emergency Medical Services Act; and sec.12.001, which provides the Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Board of Health, the Department of Health, and the Commissioner of Health. 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 30, 1995. TRD-9506628 Susan K. Steeg General Counsel Texas Department of Health Effective date: June 22, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 458-7236 Chapter 295. Occupational Health Hazard Communication 25 TAC sec.295.10 The Texas Department of Health (department) adopts new sec.295.10, concerning the Hazard Communication Act Advisory Committee, with changes to the proposed text as published in the December 27, 1994, issue of the Texas Register (19 TexReg 10302). Senate Bill 383 of the 73rd Legislature requires that the department adopt rules that state the purpose of the committee and describe the task of the committee and the manner in which the committee will report to the department. The new section establishes procedural requirements for the committee. One comment was received regarding proposed new sec.295.10, and the department's response to that comment is as follows. Comment: One commenter suggested that sec.295.10(f) be modified to require "two members of the general public and eight members of the regulated community" as representatives on the advisory committee. The commenter was opposed to the proposed language which would require "two consumer and eight nonconsumer representatives" on the committee, since the terms "consumer" and "nonconsumer" are not defined in the Health and Safety Code, Chapter 502, and since this statute requires that the committee be composed primarily of representatives from regulated entities. Response: The department has used the terms "consumer" and "nonconsumer" to achieve consistency with other advisory committees established by the board. No change was made as a result of the comment. The department has made minor editorial changes for clarification purposes. The commenter was a representative from the University of Texas System, who was opposed to subsection (f) as previously discussed. The new section is adopted under Texas Civil Statutes, Article 6252-33, which set standards for the evaluation of advisory committees by the agencies for which they function; under Health and Safety Code, sec.12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the Commissioner of Health; and Health and Safety Code, sec.11.016, which allows the Board of Health to establish advisory committees. sec.295.10. Hazard Communication Act Advisory Committee. (a) The committee. An advisory committee shall be appointed under and governed by this section. (1) The name of the committee shall be the Hazard Communication Act Advisory Committee (committee). (2) The committee is required to be established by the Texas Board of Health (board) by Health and Safety Code, sec.502.013. (b) Applicable law. The committee is subject to Texas Civil Statutes, Article 6252-33 relating to state agency advisory committees. (c) Purpose. The purpose of the committee is to provide advice to the board in the area of hazard communication and to provide guidance on rules, program policies and outreach documents pertaining to the Texas Hazard Communication Act. (d) Tasks. (1) The committee shall advise the board concerning rules relating to the providing of information by employers regarding hazardous chemicals in the work place to employees who may be exposed to those chemicals in their work place. (2) The committee shall assist the department in reviewing any procedures necessary to implement Health and Safety Code, Chapter 502. (3) The committee shall carry out any other tasks given to the committee by the board. (e) Review and duration. By September 1, 1999, the board will initiate and complete a review of the committee to determine whether the committee should be continued, consolidated with another committee, or abolished. If the committee is not continued or consolidated, the committee shall be abolished on that date. (f) Composition. The committee shall be composed of ten members appointed by the board. The composition of the committee shall include: (1) two consumer representatives; and (2) eight nonconsumer representatives. (g) Terms of office. The term of office of each member shall be 6 years. (1) Members shall be appointed for staggered terms so that the terms of a substantial equivalent number of members will expire on December 31st of each odd-numbered year. (2) If a vacancy occurs, a person shall be appointed to serve the unexpired portion of that term. (h) Officers. The committee shall elect a presiding officer and an assistant presiding officer at its first meeting after August 31st of each year. (1) Each officer shall serve until the next regular election of officers. (2) The presiding officer shall preside at all committee meetings at which he or she is in attendance, call meetings in accordance with this section, appoint subcommittees of the committee as necessary, and cause proper reports to be made to the board. The presiding officer may serve as an ex-officio member of any subcommittee of the committee. (3) The assistant presiding officer shall perform the duties of the presiding officer in case of the absence or disability of the presiding officer. In case the office of presiding officer becomes vacant, the assistant presiding officer will serve until a successor is elected to complete the unexpired portion of the term of the office of presiding officer. (4) A vacancy which occurs in the offices of presiding officer or assistant presiding officer may be filled at the next committee meeting. (5) A member shall serve no more than two consecutive terms as presiding officer and/or assistant presiding officer. (6) The committee may reference its officers by other terms, such as chairperson and vice-chairperson. (i) Meetings. The committee shall meet only as necessary to conduct committee business. (1) A meeting may be called by agreement of department staff and either the presiding officer or at least three members of the committee. (2) Meeting arrangements shall be made by department staff. Department staff shall contact committee members to determine availability for a meeting date and place. (3) Each meeting of the committee shall be announced and conducted in accordance with the Open Meetings Act, Texas Government Code, Chapter 551. (4) Each member of the committee shall be informed of a committee meeting at least five working days before the meeting. (5) A simple majority of the members of the committee shall constitute a quorum for the purpose of transacting official business. (6) The committee is authorized to transact official business only when in a legally constituted meeting with quorum present. (7) The agenda for each committee meeting shall include an item entitled public comment under which any person will be allowed to address the committee on matters relating to committee business. The presiding officer may establish procedures for public comment, including a time limit on each comment. (j) Attendance. Members shall attend committee meetings as scheduled. Members shall attend meetings of subcommittees to which the member is assigned. (1) A member shall notify the presiding officer or appropriate department staff if he or she is unable to attend a scheduled meeting. (2) It is grounds for removal from the committee if a member cannot discharge the member's duties for a substantial part of the term for which the member is appointed because of illness or disability, is absent from more than half of the committee and subcommittee meetings during a calendar year, or is absent from at least three consecutive committee meetings. (3) The validity of an action of the committee is not affected by the fact that it is taken when a ground for removal of a member exists. (4) The attendance records of the members shall be reported to the board. The report shall include attendance at committee and subcommittee meetings. (k) Staff. Staff support for the committee shall be provided by the department. (l) Procedures. Roberts Rules of Order, Newly Revised, shall be the basis of parliamentary decisions except where otherwise provided by law or rule. (1) Any action taken by the committee must be approved by a majority vote of the members present once quorum is established. (2) Each member shall have one vote. (3) A member may not authorize another individual to represent the member by proxy. (4) The committee shall make decisions in the discharge of its duties without discrimination based on any person's race, creed, gender, religion, national origin, age, physical condition, or economic status. (5) Minutes of each committee meeting shall be taken by department staff. (A) A draft of the minutes approved by the presiding officer shall be provided to the board and each member of the committee within 30 days of each meeting. (B) After approval by the committee, the minutes shall be signed by the presiding officer. (m) Subcommittees. The committee may establish subcommittees as necessary to assist the committee in carrying out its duties. (1) The presiding officer shall appoint members of the committee to serve on subcommittees and to act as subcommittee chairpersons. The presiding officer may also appoint nonmembers of the committee to serve on subcommittees. (2) Subcommittees shall meet when called by the subcommittee chairperson or when so directed by the committee. (3) A subcommittee chairperson shall make regular reports to the advisory committee at each committee meeting or in interim written reports as needed. The reports shall include any executive summary or minutes of each subcommittee meeting. (n) Statement by members. The board, the department, and the committee shall not be bound in anyway by any statement or action on the part of any committee member except when a statement or action is in pursuit of specific instructions from the board, department, or committee. (o) Reports to board. The committee shall file an annual written report with the board. (1) The report shall list the meeting dates of the committee and any subcommittees, the attendance records of its members, a brief description of actions taken by the committee, a description of how the committee has accomplished the tasks given to the committee by the board, the status of any rules which were recommended by the committee to the board, anticipated activities of the committee for the next year, and any amendments to this section requested by the committee. (2) The report shall identify the costs related to the committee's existence, including the cost of agency staff time spent in support of the committee's activities. (3) The report shall cover the meetings and activities in the immediate preceding 12 months and shall be filed with the board each August. It shall be signed by the presiding officer and appropriate department staff. (p) Reimbursement for expenses. In accordance with the requirements set forth in Texas Civil Statutes, Article 6252-33, a committee member may receive reimbursement for the member's expenses incurred for each day the member engages in official committee business. (1) No compensatory per diem shall be paid to committee members unless required by law. (2) A committee member who is an employee of a state agency, other than the department, may not receive reimbursement for expenses from the department. (3) A nonmember of the committee who is appointed to serve on a subcommittee may not receive reimbursement for expenses from the department. (4) Each member who is to be reimbursed for expenses shall submit to staff the member's receipts for expenses and any required official forms no later than 14 days after each committee meeting. (5) Requests for reimbursement of expenses shall be made on official state travel vouchers prepared by department staff. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 31, 1995. TRD-9506595 Susan K. Steeg General Counsel Texas Department of Health Effective date: June 22, 1995 Proposal publication date: December 27, 1994 For further information, please call (512) 458-7236 Texas Asbestos Health Protection 25 TAC sec.295.73 The Texas Department of Health (department) adopts new sec.295.73, concerning the Asbestos Advisory Committee, without changes to the proposed text as published in the December 27, 1994, issue of the Texas Register (TexReg 10304). Senate Bill 383 of the 73rd Legislature requires that the department adopt rules that state the purpose of the committee and describe the task of the committee and the manner in which the committee will report to the department. The new section establishes procedural requirements for the committee. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 4477-3a, sec.12(a), which provide the department the authority to adopt rules necessary to carry out its powers, duties, and responsibilities relating to regulation of asbestos; and Health and Safety Code, sec.12.001(b)(1), which requires the Texas Board of Health, the Texas Department of Health, and the Commissioner of Health with the authority to adopt rules for the performance of each duty imposed upon it by law; and Health and Safety Code, sec.11.016, which allows the Board of Health to establish advisory committees. 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 31, 1995. TRD-9506596 Susan K. Steeg General Counsel Texas Department of Health Effective date: June 22, 1995 Proposal publication date: December 27, 1994 For further information, please call (512) 458-7236 Part VIII. Interagency Council on Early Childhood Intervention Services Chapter 621. Early Childhood Intervention Early Childhood Intervention Service Delivery for Milestones Services 25 TAC sec.sec.621.81-621.84 The Interagency Council on Early Childhood Intervention adopts new sec.sec.621.81-621.84, concerning Early Childhood Intervention, with changes to the proposed text as published in the December 23, 1994, issue of the Texas Register (19 TexReg 10188). The justification for the new sections is to ensure continuity of Milestones programs services throughout Texas. The new sections will function by creating rules on establishing and operating Milestones programs and reflect required language based on federal regulations. The Milestones programs are a child-find component of the comprehensive service delivery system for the state. It is designed for children who are not eligible for comprehensive services under legal, federal, and state citations, but who are at very high-risk of delayed development. The council received one verbal and 26 written comments from the nine existing Milestones programs and Cooks Medical Center, Tarrant Services for Visually Impaired Children, a pediatric nurse practitioners group, Silsbee ISD ECI program, The Arc of Wichita Falls, The University of Texas Medical Branch at Galveston, and a private physician's office. Comment: One commenter noted that the rules mention "The Administrator of the Hospital or his designee and that rules should be gender neutral." Response: The council agrees and has changed the phrase in sec.621.83(4)(H) (i)(VII). Comment: Concerning the definition of Community Advisory Board in sec.621.82, one commenter mentioned that the use of the term "consumers" was unnecessary as parents are already listed and children cannot participate on the Board. Response: The council agrees and has changed the definition. Comment: The same commenter suggested that it may be difficult to maintain racial and ethnic diversity, especially if each agency or institution chooses their own representative. Suggested wording for this section was, "make every reasonable effort to have the membership represent the racial and ethnic population of the community." Response: The rule will remain as posted, because the council believes that, although it may require some effort, this can be done. Comment: Concerning the Service Area Board (SAB), two commenters addressed physician participation and one suggested the following revision in sec.621. 83(4)(H)(i)(iii): "pediatricians, family practice, or other physicians, or their representatives serving children from birth to three years old." Two commenters made suggestions about the Service Area Board ensuring collaboration and communication across various local Community Boards. The commenters felt that the Service Area Board should maintain a global view of long range planning for the Milestones Program while integrating individual Community Board's input. They recommended that we change the name and redefine the role of the Service Area Board and reconstruct membership of the Service Area Board. Response: Service Area Boards will become the new name of the Community Boards for the nine existing programs. The purpose as written in the proposed rule is agreeable to the directors of the nine programs. Community Boards may be developed as the Service Area Boards feel necessary in planning the incorporation of new counties into existing programs. Policy will be required to address large service areas which may have individual needs. Comment: In sec.621.82, concerning the definition of medical home or primary health care provider (PHCP), one commenter felt nurses and nurse practitioners should be included in the definition since they provide care in many areas to these infants. Response: The council agrees and incorporated changes as follows: A private pediatrician, family practice physician, pediatric nurse practitioner or public health clinic staff who provides medical care, including but not limited to immunizations, well-baby check-ups, and acute and routine medical care for children eligible for Milestones services. Comment: Concerning sec.621.83(1)(B), program goals, one commenter suggested that this section read "promote early identification of children requiring further evaluation or services for possible developmental delays; and" Response: The reference to "service" refers to social services in general and to developmental evaluation or developmental services specifically. The rules will remain as written. Comment: Concerning sec.621.83(2)(D), program service area, five commenters commented that some hospitals choose not to be affiliated with the Milestones programs. Therefore, Milestones programs would not be able to meet the requirements for program service area. Response: Language has been changed to read, "All hospitals that serve eligible children in a service area shall be invited to participate in the development of the Milestones program and shall refer eligible infants and children for enrollment. An incremental schedule of hospitals' participation must be approved by the ECI state office when all hospitals are not enrolled at the same time." Comment: Concerning sec.621.83(4), program development and application process, two commenters questioned "representatives from all ECI comprehensive programs" and "school districts in the area" and expressed concern that steering committees could become too large and that these groups would be over- represented. Response: sec.621.83(4) has been rewritten in response to comments. No limit was placed on the number of representatives for the Steering Committee as it embodies in-put from all who wish to participate in the Milestones Program development. Comment: Concerning sec.621.83(4)(C), two or more community coordinating boards may be established under the SAB. Twelve commenters felt that the text relating to Community Coordinating Board could be deleted, since the Service Area Board is the planning and advisory board to the Milestones program. Milestones policies will identify the flexibility of the use of Community Boards in individual areas. Response: sec.621.83(4)(C) has been deleted. Comment: Concerning sec.621.83(4)(J)(i), continuation funding, 12 commenters indicated that the notice of funding should be listed first, application for continuation would be the next step in the process, and an explanation of the process would follow. Response: The council agrees with commenters and has rearranged the text. Comment: Concerning sec.621.83(4)(J)(ii)(III), expansion funding, 12 commenters indicated the proposed rules did not make expansion funding clear. Response: The council agrees and has added, " The ECI state office will send an application to all programs eligible for expansion funding." Comment: Concerning sec.621.83(J)(iii), new Milestones funding, 12 commenters indicated an application process was required within this funding item. Response: The council agrees and has added sec.621.83(J)(iii)(V) to read, "The SAB shall prepare and submit an application for funding to the Council." Comment: Concerning sec.621.83(5), client eligibility, 25 commenters indicated the 1,500 grams or less as the only criteria for client eligibility was too restrictive. Comments indicated it was discriminatory toward rural programs as those areas will not have adequate very low birthweight infants to maintain full-time staffing or a program. Response: All eligible children shall be identified and offered services according to these eligibility criteria before identifying any new criteria. (A) A child is eligible for the Milestones program if the child weighed 1, 500 grams or less at birth. (B) When a Milestones Program has identified and offered services to all eligible infants and children in its service area, according to Milestones eligibility criteria, the SAB may identify optional criteria which recognize biological risk factors. Changes to the rule will include a plan to be developed and submitted to the state office for approval which may include but is not limited to the following criteria: (i) Infants who remain hospitalized for two weeks or longer; (ii) Infants who reach 1,500 grams or less at any time during the neonatal period of the initial hospital stay; (iii) Infants with grade two or three Intra Ventricular Hemorrhage (IVH); (iv) Infants on a respirator for more that four days; or (v) Infants whose condition necessitates being on oxygen more than 28 days in NICU. Comment: Concerning sec.621.83(5)(A)(vi), 12 commenters asked that WIC and Champus be removed as these agencies do not provide case management. Response: The council agrees with commenters and has deleted WIC and Champus. Comment: Concerning sec.621.83(6), enrollment, 15 commenters indicated that a limitation of 45 days from the time the infant and family is referred to a comprehensive case management program until eligibility is confirmed is unrealistic. Several stated that Milestones programs are a connecting service and can help families remain in comprehensive case management services. Other commenters stated that "Safety Checks," a method to determine that the child and family remain connected to the comprehensive case management program and the physician and/or medical home, were mandatory for Milestones to be effective. Response: After discussion with the directors of the nine existing programs, the Inactive and the Limitation to Inactive sections were deleted. Infants and children will remain active until the file is closed. Comment: Concerning sec.621.83(C), discharges, 12 commenters indicated that "discharged" had a medical connotation and preferred "closed" in reference to the child who will no longer receive Milestones services. The directors of the existing milestones programs asked that the comment "is receiving comprehensive case management" be the last statement in the "closed" section. Response: The council agrees, and the final statement will read: "...is receiving comprehensive case management." Comment: Concerning sec.621.84(1), interagency agreements with hospitals and birthing centers, five commenters stated that interagency agreements as stated in the rule would cause a hardship for programs located in areas where many agencies and hospitals must collaborate. Response: The council recognized the magnitude of the interagency agreements which must be completed in metropolitan areas. However, for procedural safeguards relating to confidentiality and exchange of information to be effective, these are necessary to ensure that the family's rights are protected. The rule was modified to state, "Milestones programs must make a good faith effort to develop written agreements with all hospitals and birthing centers in their service area to ensure that a coordinated referral process exists." Additionally, future policy will direct the Milestones programs to collect aggregate data to determine the number of very low birthweight infants in the Milestones programs' service areas. Comment: Six commenters wanted Milestones programs to serve as central points of access for referrals from hospitals and referring agencies for ECI programs. Response: Discussion with the directors of existing programs indicated that this would not be productive or efficient for the ECI programs. The Milestones programs can be effective in the educational process for training physicians and other hospital personnel for referring to the ECI programs. The rule will remain as written. Comment: Concerning sec.621.84(4)(D), initial contact, 18 commenters indicated that limiting the identification of a PHCP to a specific zip code area of the family was unrealistic as the physicians often had referral agreements with other physician or public health clinics. They suggested policy read, " Milestones program staff will assist the family in identification of a medical home as required." Response: The council agrees. The rule will read, "If no PHCP is identified by the family upon infants discharged from the hospital, Milestones will assist in the identification of a PHCP and in setting an appointment as required." The council also made editorial changes and clarifications to other parts of the rules. The new sections are adopted under the Human Resources Code, sec.73.003, which authorizes the Interagency Council on Early Childhood Intervention to establish rules regarding services provided for children with developmental delays. The new sections implement the Human Resources Code, sec. sec.73.001-73.021. sec.621.81. Purpose-Milestones Services. Sections 621.81-621. 84 of this undesignated head (relating to Early Childhood Intervention Service Delivery for Milestones Services) describe the programmatic and fiscal requirements which govern Milestones services. These services are offered by the Interagency Council on Early Childhood Intervention as a component of the comprehensive child find system for the state for children who are not eligible for comprehensive services under legal, federal, and state citations. Milestones services assure that families are assisted in accessing services in a non- duplicative manner. sec.621.82. Definitions. The following words and terms, when used in this undesignated head, shall have the following meanings, unless the context clearly indicates otherwise. Community board -Optional advisory boards consisting of parents, advocates, consumers and community leaders with interest and expertise in identifying developmental delay in children from birth to age three. In large or diverse service areas, the Service Area Board (SAB) may establish a community board which will report to the SAB and will represent specific needs of the area. Each community board will include members who represent the racial and ethnic population of the service area that they cover. Direct services -Those services provided on an emergency basis which coordinate provision of services to meet the needs of infants and families, including but not limited to, food, shelter, and clothing. High priority infants-Infants whose birthweight is 1,500 grams or less, also identified as very low birthweight (VLBW). Medical home or primary health care provider (PHCP)-A private pediatrician, family practice physician, pediatric nurse practitioner, or public health clinic staff who provides medical care, including but not limited to, immunizations, well-baby check-ups, and acute and routine medical care for children eligible for Milestones services. Service Area Board (SAB)-A policymaking board required for all approved local programs which is responsible for coordinating and planning the Milestones activities in the service area. The SAB is responsible for resolving any conflicts which occur in a manner that ensures the best interests of the entire service area are represented. The SAB works collaboratively with the performing agency and the coordinator of the local Milestones program to plan, establish, and manage the Milestones program. The SAB represents all consumers within the area of service and must have designated representation from all racial and ethnic groups to ensure diversity. If the SAB determines the need to divide the area into smaller sections, community boards may be established which will report to the SAB. Steering committee -A group of community leaders with interest and knowledge in developmental delay in children birth to three years. Prior to submitting an application for funding, the steering committee shall work collaboratively to design a Milestones program, identify the fiscal agent to house and administer the program, and identify members of the Service Area Board. sec.621.83. Program Requirements. Programs that receive funds from the Interagency Council on Early Childhood Intervention (council) to operate a Milestones program shall implement the program according to the following requirements. (1) Program goals. All Milestones program activities shall be directed toward the accomplishment of the following: (A) helping parents maintain a linkage with their primary home care provider (PHCP); (B) promoting early identification of infants and children requiring further evaluation or services; (C) promoting early and appropriate referral of infants and children to Early Childhood Intervention (ECI) comprehensive services; and (D) advocating for families of eligible infants and children and assisting communities in implementing comprehensive health and human services which will benefit families with children under three. (2) Program service area. All Milestones programs must have a defined area which can be clearly identified by primary referral sources, health care providers, hospitals, community organizations and agencies, and families. (A) All service areas shall be approved by the ECI state office following priorities established by the council which identify areas of need in the state based on the number of births in the area. (B) Service areas shall be consistent with the boundaries of the 11 Health and Human Service Commission areas unless approved by the council. (C) Services shall be provided in the entire service area unless a schedule for an incremental coverage has been approved by the ECI state office. (D) All hospitals that serve eligible children in a service area shall be invited to participate in the development of the Milestones program and shall refer eligible infants and children for enrollment. An incremental schedule of hospital participation must be approved by the ECI state office when all hospitals are not enrolled at the same time. (3) Eligible individuals and organizations. Any individual or organization interested in a Milestones program may organize their community to develop and submit an application for funding on behalf of the community. The individual(s) or organization(s) interested in development of a Milestones program shall: (A) request information from the ECI state office about the application process; (B) request state representative participation in a local meeting with all interested community representatives who provide services to children who are under three; (C) plan a community meeting to discuss and decide whether an application to establish a Milestones program will be submitted by the community; (D) announce the date, time, and location of the community meeting; (E) invite community members and ensure that the opportunity to participate is available to all appropriate community and consumer representatives in the service area and that the ECI state representative is in attendance. Representatives of all racial and ethnic groups in the community shall be invited to attend; (F) conduct a meeting or series of meetings to determine if community interest and support is sufficient to pursue an application for the service area; and (G) if the community support is confirmed, form a steering committee. (4) Program development and application process. Any individual or organization interested in a Milestones program shall develop and submit an application for funding. The community shall identify the fiscal agent through a collaborative effort which will contract with the council. (A) A steering committee will be formed and the following people will be invited to participate: (i) at least three parents of children under the age of 12 who have been identified as developmentally delayed or who were at risk of delay, were graduates of a Neonatal Intensive Care Unit (NICU) or experienced birth trauma and represent the population diversity of the service area; (ii) representatives from ECI comprehensive programs; (iii) pediatricians, family practice and other physicians serving children from birth to three years old; (iv) representatives of all hospitals located in or serving the area; (v) representatives of all school districts in the area; and (vi) representatives of public or private providers of health and human services. (B) Steering committee members must represent the ethnic diversity of the community. (C) The steering committee shall examine the state requirements and reach a consensus on how to establish the Milestones program in their service area ensuring that all state requirements and all unique needs of their service area are met. (D) The steering committee will submit a letter of intent to establish a program to the council. (E) The steering committee shall ensure that the program equitably represents the entire service area and the diversity of the population. (F) Transition from steering committee to Service Area Board (SAB) shall occur when the community is prepared to collaborate on referrals through one service provider and to write their application for funding. (i) If the diversity or size of the service area warrants, more than one steering committee may be established to ensure that the proposal represents all of the service area appropriately. (ii) If two or more steering committees are established, they must work collaboratively on the proposal and program implementation. (G) The steering committees shall reach a consensus on: (i) the organizational structure which will appropriately and efficiently represent their service area; (ii) the performing agency which will be the fiscal agent for the Milestones program; and (iii) the SAB membership. (H) A single SAB shall be identified which will examine issues related to the entire service area and make recommendations to the performing agency. (i) The SAB shall invite and include the following organizations or individuals who will represent the interests and needs of the entire service area: (I) at least three parents, guardians, or caretakers of children under the age of 12 or one-third of the SAB composition, whichever is greater, who represent the cultural and ethnic diversity of the service area and whose children have been identified as developmentally delayed, NICU graduates, or who experienced birth trauma; (II) representatives from ECI comprehensive programs in the service area; (III) pediatricians, family practice, and other physicians, or their representatives serving children from birth to three years old; (IV) representatives of local or regional public health departments; (V) local social service agencies which provide services to children who are younger than three; (VI) school district representatives; (VII) hospital representatives, preferably the administrator; and (VIII) others as identified by the steering committee. (ii) The SAB shall adopt official bylaws to define their organizational structure, membership, and procedures according to Robert's Rules of Order. The SAB shall identify the performing agency and may establish standing committees or community boards as needed. The SAB shall ensure that diversity of the service area is represented on the SAB. (iii) The SAB shall develop a process to resolve conflicts and address barriers to accessing services. (I) A single performing agency must be identified for each service area by the SAB. The performing agency shall: (i) have a mission congruent with the council and the Milestones program; (ii) not have a conflict of interest or the appearance of a conflict of interest with the Milestones program; (iii) assume financial liability for the completion of all contractual requirements; and (iv) designate a supervisor who will keep the SAB advised of information pertinent to the management and direction of the Milestones program; (J) Funding includes continuation, expansion, and new Milestones programs funding. (i) Continuation funding. (I) Notice of available funding will be announced in the Texas Register. (II) An existing program must submit an application for continuation funding annually to the council prior to any allocation of funds. (III) Contingent on program accomplishments, progress toward goals, compliance with state regulations and contract requirements, demonstrated need, availability of funding, and consistency with state goals, a contract may be renewed or continued. (ii) Expansion funding. (I) Funding for expansion of existing programs shall be announced in the Texas Register when available. (II) The council will establish criteria for expansion that shall include but are not limited to: (-a-) inflation increases; (-b-) serving new children; or (-c-) serving new portions of the service area. (III) The ECI state office will send an application to all programs eligible for expansion funding. (iii) New Milestones programs funding. (I) The council shall announce the availability of funding for new Milestones programs and will solicit community letters of intent when funding is available. (II) The council shall prioritize service areas based on the number of very low birthweight (VLBW) infants born in the area. (III) Following approval by the council of the community's letter of intent, the ECI state office staff shall provide assistance to the community during the program development and application process. (IV) The council shall establish a funding level for new programs. (V) The SAB shall prepare and submit an application for funding to the Council. (VI) A community may receive approval and funding for a development period not to exceed six months prior to enrolling infants and children for service. (5) Client eligibility. Programs must offer services to all potentially eligible infants and children in their service area. All eligible children shall be identified and offered services according to the following eligibility criteria before identifying any new criteria. A child is eligible for Milestones services if the child: (A) weighed 1,500 grams or less at birth; (B) is under the age of three; (C) resides in Texas; (D) is not enrolled in ECI comprehensive services; or (E) is not receiving comprehensive case management from any other state, federal or public-supported program, including but not limited to, Children with Special Health Care Needs; Women and Children's Services; Women, Infants, and Children program; and Champus. When a Milestones program has identified and offered services to all eligible infants and children in its service area according to Milestones eligibility criteria, the SAB may identify optional criteria which recognize biological risk factors. A plan shall be developed and submitted to the state office for approval which may include but is not limited to the following criteria: (i) infants who remain hospitalized two weeks or longer; (ii) infants who reach 1,500 grams or less at any time during the neonatal period of the initial hospital stay; (iii) infants with grade two or three intraventricular hemorrhage (IVH); (iv) infants on a respirator for more that four days; or (v) infants whose condition necessitates being on oxygen more than 28 days in NICU. (6) Enrollment. All children identified as eligible for Milestones services within a service area shall be enrolled with parental consent. Active enrollment shall be defined as the status of the child from the time the parent or guardian consents to participate in the program, until the time the file is closed or the child is transferred. The file for a child will be closed under the following circumstances: (A) the child is three years old; (B) the family and child move out of the service area; (C) the family requests that the file for the child be closed; (D) the child dies; (E) the child and family cannot be located; (F) the child is enrolled in a comprehensive case management agency and is receiving comprehensive case management; or (G) the child is enrolled in an ECI program and is receiving services. (7) Available Services. Each program shall provide Milestones services based upon needs of the child and the resources, priorities, and concerns of the family as defined in the family needs assessment, and the enrollment status of the child. (A) Milestones services connect high priority infants and children and their families to a medical home and community services after hospital discharge and facilitate these connections between child, family, and community services. (B) Milestones services shall include, but are not limited to: (i) Child Find. Child find activities are designed to assist families of eligible children in establishing relationships with primary referral sources and PHCPs to ensure that children are referred for services as early as possible and activities are designed to educate the general public, referral sources, and community organizations about the importance of early intervention and how to make referrals. (ii) Intake. Intake activities are designed to help families make decisions to participate in the Milestones program through: (I) description of the program and its purpose; (II) completion of enrollment and consent forms; and (III) screening for potential eligibility for other health and human services programs. (iii) Information and referral. The program staff may interact with hospital personnel, review medical records, provide materials about available health and human service resources in the community, assist families in accessing resources, arrange transportation, and assist with preparing application materials. (iv) Family needs assessment. Family needs assessment activities are designed to help families identify concerns and priorities related to their infant and family members. Activities may include written and oral assessment methods. (v) Service coordination. In an emergency, direct services shall be provided until referral to an agency for direct provision of services is arranged. (vi) Tracking. Tracking activities are designed to ensure that children at risk of developmental delay are examined regularly by a qualified health care provider and referred for early intervention or other appropriate services as soon as possible. (vii) Developmental information. Developmental information activities and materials are designed to educate families on age-appropriate development and methods of assessing their child's development. (viii) Seek and Find. Seek and Find activities assist the PHCP to locate families who do not keep PHCP. Activities may include written, telephone, and face-to-face contact. (ix) Transportation. The program reimburses participants for travel costs (such as, mileage, or travel by taxi, common carrier, or other means) and related costs (such as, tolls and parking expenses) that are necessary to enable an eligible child and the child's family access to medical care. (x) Interagency coordination. Interagency coordination activities are planned or implemented by representatives from more than one community agency in order to coordinate or develop community resources and to advocate on behalf of infants. (xi) Emergency services. These coordinated services are arranged or provided to meet basic survival needs including food, clothing, and shelter. sec.621.84. Service Delivery. Milestones programs must coordinate service delivery with all primary home care providers (PHCPs), Early Childhood Intervention (ECI) comprehensive programs, and appropriate community organizations to ensure that infants and their families are aware of and receive all appropriate services to which they are eligible or entitled. All service delivery procedures must be approved by the Service Area Board (SAB) and delivered according to rules and policies adopted by the Interagency Council on Early Childhood Intervention (council). Written agreements between the Milestones program and hospitals, birthing centers and related community agencies shall be developed. (1) Interagency agreements with hospitals and birthing centers. Milestones programs must make a good faith effort to develop written agreements with all hospitals and birthing centers in their service area to ensure that a coordinated referral process exists. Each agreement shall: (A) ensure that confidential and personally identifying information is protected and that informed parental consent is obtained prior to referral or release of any personally identifiable information; (B) ensure that services are coordinated and not duplicated; (C) describe how referrals will be made to Milestones programs and how the Milestones programs will make referrals to health and human services agencies; (D) describe how the Milestones program will keep the referral sources informed about the children they referred; and (E) describe how the hospital discharge summary or other client information will be shared with the Milestones program. Information which should be shared includes, but is not limited to: (i) name of physician the infant will be seeing or their PHCP; (ii) name of all community services and agencies to which the family has been referred; and (iii) medical or health needs. (2) Notification of hospitals and birthing centers. Each Milestones program shall notify all hospitals and birthing centers of eligibility requirements and referral procedures for children who are potentially eligible for ECI comprehensive or Milestones services, including the requirement that potentially eligible children be referred within two days of identification. (3) Interagency agreements with related community agencies. (A) The Milestones program shall have a written agreement with all related community agencies which serve infants birth to three years of age. (B) Written agreements shall exist which include but are not limited to: (i) methods of information exchange including safeguards for confidential information; (ii) commitment to address barriers to services for infants, children, and families identified by the Milestones staff; and (iii) plans for referrals between agencies and Milestones programs. (4) Intake and initial contact. Written policy, approved through the SAB, shall describe when the initial contact shall be made with the family. Programs shall recognize that the needs and circumstances of each family will vary and that all contacts made by the Milestones program staff should ensure that family's rights are respected. Contacts made by the Milestones program with families shall not be intrusive or invasive. (A) Whenever possible, initial contact shall be made with the family prior to the discharge of the child from the hospital. (B) In those circumstances when it was not advisable or possible to contact the family prior to the child's discharge, local policy needs to describe procedures for scheduling and conducting a home visit, including a maximum time between referral and initial contact. (C) During the first contact with the family, the Milestones staff shall explain the goals of the Milestones program, the available services, ECI comprehensive services, confidentiality procedures, and parental rights. (D) If no physician or medical home is identified by the family when the child is ready for discharge from the hospital, Milestones staff will assist in identifying a PHCP and will assist in setting an appointment with the PHCP when needed; (E) Milestones staff will assist with the identification of barriers to the access of Milestones services. (5) Information and referral. (A) Each program shall have written procedures for providing information, determining potentially eligible children, and making referrals of eligible infants and families to all appropriate community services. (B) When Milestones staff make referrals to community agencies, they shall provide the family a written list including the agency name, telephone number, and address. (C) Milestones staff must keep information about resources current. (D) When resources are not available, Milestones staff should advocate for the development of services through their SAB. (6) Family needs assessment. Each program shall have an ongoing procedure to assist families to determine their concerns, priorities, and resources. (A) This procedure must be described in writing and must include, at a minimum, opportunities for the family to discuss their needs or questions in the following areas: (i) service coordination; (ii) child development; (iii) ECI comprehensive services; (iv) health or medical information; (v) referral to community agencies; (vi) making appointments; (vii) transportation; (viii) day care; (ix) respite; (x) nutrition and food; (xi) housing; (xii) employment and financial concerns; and (xiii) other services available to the child and/or family. (B) All needs assessment activities must be conducted in the family's native language or language of choice. (C) A variety of methods shall be available to help families identify their concerns, priorities, and resources. (D) The process of assessment of need should be an ongoing and continuous activity and program practices should encourage revisions and changes whenever family needs change. (E) The program shall document in writing the needs of the family and a copy of this information shall be maintained in the child's file and given to the family. The Milestones Service Request Form shall be used to ensure consistent information collection among programs. (F) Families will be asked to identify their concerns, priorities, and resources annually if ongoing assessment has not occurred. (7) Service coordination. Service coordination shall include making appropriate referrals to community agencies, removing barriers to services, and providing agency telephone numbers and addresses. Activities shall include, but are not limited to: (A) removing barriers; (B) monitoring the delivery of services; (C) identifying conflicts or gaps between service providers; and (D) advocating to eliminate gaps in services in the service area. (8) Tracking. Written procedures shall exist which establish and maintain ongoing communication with local PHCPs to ensure that regular health and developmental evaluations are conducted. The time frames for these procedures shall be established by the SAB using as a minimum those set by the periodicity schedule of the American Pediatric Association. Tracking procedures must include: (A) a system for mailing reminders to families of enrolled infants prior to their PHCP visit; (B) a procedure for collecting and reviewing PHCP tracking forms to document family contact; (C) a procedure for situations when tracking forms are not returned by the PHCP; (D) a procedure to determine that the PHCP saw the infant and family; (E) a mechanism to inform the referral source of the connections made in the community, particularly the medical home; (F) a calendar describing medical tracking intervals; and (G) a method to record that immunizations were given on the American Medical Association approved pediatric immunization schedule. (9) Seek and Find. Each program must have ongoing procedures identifying when seek and find activities will be initiated and how they will be conducted. Seek and Find services shall include, but are not limited to: (A) when a medical follow-up or developmental assessment is missed: (i) A phone call will be made to the family to identify barriers which prevented their visit to the PHCP and a referral to community agencies will be made when appropriate. (ii) If the family cannot be reached by phone, a letter will be sent to ask the family to contact the Milestones program. When contact is complete, barriers will be identified and appropriate referrals will be made. (iii) If a letter and a phone call fail to result in the family making contact with the Milestones program, a home visit will be made. (I) If the family has moved, attempts to identify the new residence will be made. The program will contact the people listed on the family's enrollment form to determine the family's new address. (II) If continued efforts to identify the new residence are unsuccessful, the child's file will be closed. (B) when a file is closed, a letter will be sent to the family at the last known address to indicate the status of their case and to indicate that additional services will be available when needed. A letter also will be sent to the PHCP to notify them that the family cannot be found. (10) Developmental information. Each program shall have a written procedure which describes how they help parents recognize age-appropriate behavior and activities. This information shall be disseminated through written materials which assist parents in the identification of appropriate development. These materials may include but are not limited to: (A) the Infant/Child Monitoring Questionnaire (ICMQ) or other checklists; (B) developmental information; and (C) ECI brochures which offer developmental information and explanation of services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 1, 1995. TRD-9506619 Nancy Murphy Section Manager, Media and Policy Services Interagency Council on Early Childhood Effective date: June 22, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 450-3765 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 3. Life, Accident, and Health Insurance and Accident and Health Insurance Annuities Subchapter Q. Acturial Opinion and Memorandum Regulation 28 TAC sec.sec.3.1605, 3.1607-3.1609 The Texas Department of Insurance adopts amendments to sec.sec.3.1605, and 3.1607-3.1609, without changes to the proposed text as published in the February 17, 1995, issue of the Texas Register (20 TexReg 1064). The amended sections concern the adoption by reference of the Actuarial Standards of Practice of the Actuarial Standards Board. Since the adoption by reference of the Actuarial Standards of Practice of the Actuarial Standards Board as of September 15, 1992, there have been five new Actuarial Standards of Practice and two revised Actuarial Standards of Practice adopted by the Actuarial Standards Board. The new standards to be incorporated by reference as a result of amending the sections are: Actuarial Standard of Practice Number 21- "The Actuary's Responsibility to the Auditor" (April 1993); Actuarial Standard of Practice Number 22-"Statutory Statements of Opinion Based on Asset Adequacy Analysis by Appointed Actuaries for Life or Health Insurers" (April 1993); Actuarial Standard of Practice Number 23-"Data Quality" (July 1993); Actuarial Compliance Guideline Number 3 -"For Statement of Financial Accounting Standards Number 106 Employers' Accounting for Postretirement Benefits Other Than Pensions" (October 1992); Actuarial Compliance Guideline Number 4-"Statutory Statements of Opinion Not Including an Asset Adequacy Analysis by Appointed Actuaries for Life or Health Insurers" (October 1993). The revised standards which will be incorporated by reference are Actuarial Standard of Practice Number 10-"Methods and Assumptions for Use in Stock Life Insurance Company Financial Statements Prepared in Accordance with GAAP" (October 1992) and Actuarial Standard of Practice Number 3-"Practices Relating to Continuing Care Retirement Communities" (July 1994). Additionally, Actuarial Standard of Practice Number 14-"When to do Cash Flow Testing for Life and Health Insurance Companies" (July 1990), was previously excluded from portions of this regulation and is now included. Due to the inclusion of Actuarial Standard of Practice Number 22 and Actuarial Compliance Guideline Number 4, the department believes that sufficient guidance is now provided to allow inclusion of this standard of practice. Insurance Code, Article 3.28, sec.2A(a) requires the actuary rendering the opinion on the reserves of a life insurance company to be a member of the American Academy of Actuaries. The Actuarial Standards Board is the rule making arm of the American Academy of Actuaries. All members of the Academy must comply with the standards adopted by the Actuarial Standards Board, therefore the actuary rendering an opinion under these sections must comply with these standards. Without this adoption by reference of these standards, the department would refer suspected violations to the American Academy of Actuaries for disciplinary action. By adopting the standards by reference the department is able to independently police compliance with these standards of the American Academy of Actuaries. The amendments update the adoption of these standards to October 1, 1994. One commenter suggested the department delete the adoption by reference as of a specific date and substitute a phrase such as "from time to time" to avoid amending the rule when the Actuarial Standards of Practice are amended or new standards are adopted. The department disagrees with the suggestion. State agencies cannot delegate their rule making authority to private bodies such as the Actuarial Standards Board, since that would be a delegation of legislative authority in contravention of the Texas Constitution, Article III, sec.1. Additionally, the adoption of standards by reference as they exist from time to time would allow the Actuarial Standards Board to change its standards which would deny the public notice of the proposed rule making and the right to comment which are required by the Administrative Procedures Act (Texas Government Code, sec.2001.023 and sec.2001.039). Another commenter recommended that sec.3.1607(b)(6) be changed by requiring the appropriate Compliance Guidelines be substituted for Standards of Practice. The department disagrees with the commenter because it understands the Standards of Practice adopted by reference include the Compliance Guidelines. The recommended change would narrow the applicable requirements which the department does not believe is appropriate. Comments were received from Actuarial and Computer Services, Plano, Texas, and Pima Life Insurance Company, Phoenix, Arizona. The amendments are adopted under Insurance Code, Articles 3.28 and 1.03A. The Insurance Code, Article 3.28, sec.2A, authorizes and requires the Commissioner of Insurance to define the specific requirements of actuarial opinions required under Article 3.28, including matters deemed to be necessary to the scope of such opinions. 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. 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 June 5, 1995. TRD-9506702 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Effective date: June 26, 1995 Proposal publication date: February 17, 1995 For further information, please call: (512) 463-6327 Subchapter GG. Minimum Reserve Standards for Individual and Group Accident and Health Insurance 28 TAC sec.3.7002 The Texas Department of Insurance adopts an amendment to sec.3.7002, without changes to the proposed text as published in the February 17, 1995, issue of the Texas Register (20 TexReg 1066). The amendment more efficiently regulates the minimum reserve standards for insurers that have significant amounts of group disability income insurance by authorizing an insurer to establish reserves for claims with a duration of disablement of three to five years based on its own experience. The amendment defines a credibility standard and requires prior approval of the plan by the commissioner. The amendment authorizes an insurer to elect a new method for calculating its group disability income reserves. For group disability claims with a duration of disablement of more than two years but less than five years, an insurer that meets the credibility standard can submit a plan of modification to the reserve basis as described in the amendment to the department, and such plan must receive the prior approval of the commissioner before it can be implemented. No comments were received regarding adoption of the amendment. The amendment is adopted under Insurance Code, Articles 1.03A and 3.28. Article 1.03A, authorizes the commissioner to adopt rules and regulations for the conduct and execution of the duties and functions by the department. Article 3.28, sec.2A authorizes the commissioner to state the requirement, substance and scope of actuarial opinions in order to make sure reserves are computed appropriately and are based on assumptions which satisfy contractual provisions. 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 June 5, 1995. TRD-9506701 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Effective date: June 26, 1995 Proposal publication date: February 17, 1995 For further information, please call: (512) 463-6327 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part XVII. Texas State Soil and Water Conservation Board Chapter 523. Agricultural and Silvicultural Water Quality Management 31 TAC sec.523.3, sec.523.6 The Texas State Soil and Water Conservation Board adopts amendments to sec.523.3 and sec.523.6, without changes to the proposed text as published in the Texas Register December 2, 1994, (19 TexReg 9434). The purpose of the amendments are to correct program deficiencies discovered during the first year of operation. The amendments clarify that a water quality management plan must be implemented to achieve expected benefits; clarify that a water quality management plan must cover an operating unit to meet certification requirement; incorporates procedures for maxification of a water quality management plan; provides for withdrawal of certification; adds a requirement for notification of the local soil and water conservation district in the event of deviation from the implementation schedule; and modifies the conditions placed upon the receipt of state cost share funds. Adoption of the amendments allows for a more effective program and makes more efficient use of state funds. Comments on the proposed amendments were received from the Texas Agricultural Extension Service, the Lubbock County Soil and Water Conservation District, the Tom Green Soil and Water Conservation District, and the Concho Soil and Water Conservation District. Only two comments were received that requested changes. One commenter proposed that the word "completely" be deleted from the requirements in the proposed wording in the maintenance agreement under sec.523. 6(b) and sec.523.6(f)(5) because the requirement could be too stringent under some conditions. The decision was made not to remove the word, because it correctly depicts the desired commitment for the receipt of state cost share funds. Two commenters requested the requirement that a water quality management plan cover an operating unit be dropped from sec.523.3(a). The decision was made to retain the requirement since it is believed that it is necessary to assure program credibility. The amendments are adopted under the Agricultural Code, Title 7, Chapter 201, sec.201.020, which authorizes the State Soil and Water Conservation Board to adopt rules as necessary for the performance of its functions; and sec.201. 026, which provides authorization for the Board to establish nonpoint source pollution abatement programs. 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 Temple, Texas, on May 31, 1995. TRD-9506633 Robert G. Buckley Executive Director Texas State Soil and Water Conservation Board Effective date: June 22, 1995 Proposal publication date: December 2, 1994 For further information, please call: (512) 773-2250 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 81. Administrative Provisions General 37 TAC sec.81.20, sec.81.21 The Texas Youth Commission (TYC) adopts new sec.81.20 and sec.81.21, concerning open records requests and copying costs, without changes to the proposed text as published in the May 2, 1995, issue of the Texas Register (20 TexReg 3238). The justification for the new sections is to have a more efficient system of charging for copying records for the public and for complying with the Open Records Acts. The new rules will provide guidelines for complying with the Open Records Acts, and under which circumstances charges will be made for producing documents. No comments were received regarding adoption of the new rules. The new rules are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. 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 June 2, 1995. TRD-9506720 Steve Robinson Executive Director Texas Youth Commission Effective date: June 26, 1995 Proposal publication date: May 2, 1995 For further information, please call: (512) 483-5244 Part XI. Texas Juvenile Probation Commission Chapter 341. Texas Juvenile Probation Standards 37 TAC sec.sec.341.1-341.12 The Texas Juvenile Probation Commission adopts new sec. sec.341.1-341.12, concerning standards for juvenile probation boards and departments, without changes to the proposed text as published in the March 3, 1995 issue of the Texas Register (20 TexReg 1513). The new sections are being adopted to provide minimum standards for juvenile boards that are necessary to provide adequate and effective probation services. These sections will provide the Texas Juvenile Probation Commission with the authority to adopt reasonable rules that provide minimum standards for juvenile boards that are necessary to provide adequate and effective probation services. Comments were received from Elly Del Prado Dietz, Assistant Attorney General, Crime Victim's Compensation Division, requesting that sec.341.3(c) be amended to apprise victims of juvenile crime of court procedures, programs, and the conditions of probation. David Wigley, Crosby County Chief Juvenile Probation Officer, supported sec.341.4(d) Juvenile Probation Departments Personnel/Salaries, designation as a mandatory standard instead of recommended. Teresa V. Ramirez, Harris County Chief Juvenile Probation Officer, recommended semantical wording changes for 341.1(a)(1)(D) and 341.1(a)(2)(B). Ms. Ramirez also recommended that sec.341.2(1) limit the Commission's access to local department's records. Comments were received from the Texas Attorney General's Office, Crosby County Juvenile Probation Department and the Harris County Juvenile Probation Department. All comments supported the Juvenile Probation Standards. The Texas Juvenile Probation Commission neither agrees or disagrees with the comments received. The new sections are adopted under Texas Human Resources Code, sec.141.042, which provides the Texas Juvenile Probation Commission with the authority to adopt reasonable rules that provide minimum standards for juvenile boards that are necessary to provide adequate and effective probation services. sec.341.1. Establishing Code of Ethics for Juvenile Probation Services Personnel and Providing for Enforcement of Code. sec.341.2. Local Juvenile Board Administration. sec.341.3. Juvenile Probation Services. sec.341.4. Juvenile Probation Personnel. sec.341.5. Local Juvenile Boards-Advisory Councils. sec.341.6. State Administration. sec.341.7. Waiver to Standards. sec.341.8 Vehicle Exemption. sec.341.9. Guidelines for Informal Adjustment Fees. sec.341.10. Complaints Against Juvenile Boards. sec.341.11. Coordinated Services for Multiproblem Children and Youth. sec.341.12. Participation in Community Resource Coordination Groups. sec.341.1. Establishing Code of Ethics for Juvenile Probation Services Personnel and Providing for Enforcement of Code (a) Code of ethics. The people of Texas expect of juvenile probation personnel unfailing honesty, respect for the dignity and individuality of human beings, and a commitment to professional and compassionate service. To this end the Texas Juvenile Probation Commission subscribes to the following principles. This standard is mandatory. 1) Probation personnel shall endeavor to: (A) respect the authority and follow the directives of the court, recognizing at all times that they are an extension of the court; (B) respect and protect the civil and legal rights of all children and their parents; (C) serve each case with concern for the child's welfare and with no purpose of personal gain; (D) encourage relationships with colleagues of such character to promote mutual respect within the profession and improvement of its quality of service; (E) respect the significance of all elements of the justice and human services systems and cultivate a professional cooperation with each segment; (F) respect and consider the right of the public to be safeguarded from juvenile delinquency; (G) be diligent in their responsibility to record and make available for review any and all case information which could contribute to sound decisions affecting a client or the public safety; (H) report without reservation any corrupt or unethical behavior which could affect either a child or the integrity of the department; (I) maintain the integrity of private information and not seek personal data beyond that needed to perform their responsibilities, nor reveal case information to anyone not having proper professional use for such; (K) not discriminate against any employee, prospective employee, child, child care provider, or parent on the basis of age, race, sex, creed, disability, or national origin; (L) respect, serve and empathize with the victims of law violations allegedly committed by children. (M) Abide by all federal, state, and local laws. (2) Probation personnel shall not: (A) use official position to secure privileges or advantages; (B) make statements critical of colleagues or their departments unless these are verifiable and constructive in purpose; (C) permit personal interest to impair in the least degree the objectivity which is to be maintained in their official capacity; (D) use official position to promote any partisan political purposes; or (E) accept any gift or favor of a nature to imply an obligation that is inconsistent with the free and objective exercise of professional responsibilities. (3) Probation officers who are responsible for agency personnel actions shall make all appointments, promotions, or dismissals only on the basis of merit and not in furtherance of partisan political interest. (b) Code of ethics for Texas juvenile probation officers--enforcement procedures. This standard is mandatory. (1) Definitions. The following words and terms, when used in this subsection, shall have the following meanings, unless the context clearly indicates otherwise. (A) Board - The juvenile board. (B) Chair - The juvenile board chair. (C) Chief - The chief administrative officer. (D) Commission - The Texas Juvenile Probation Commission. (E) Officer - The certified juvenile probation officer or certified detention officer. (2) The local hearing. The chief will investigate each report of a violation of the code of ethics. If the allegation is against the chief, the board shall appoint another person to perform the duties of the chief under this section. (A) If the chief finds reasonable cause to believe an officer has violated the code of ethics the chief shall give the officer written notice of the section or sections of the code allegedly violated, a statement of the evidence relied upon, and the chief's recommendation to the board for action. If the chief recommends that the board ask the commission to revoke an officer's certification, the officer has 10 days after receiving the notice to make a written request for a hearing before the board. If the officer fails to request a hearing, the board shall take such action as it deems lawful and appropriate and shall notify the officer of its recommendation in writing within 15 days of the expiration of the 10-day period for requesting a hearing. (B) The board shall hold a hearing within 15 days after receiving written notice from the officer requesting the hearing, unless the board, the chief, and the officer all agree to a delay. The officer shall be given notice of the hearing date as soon as it is set. (C) The hearing shall be conducted in executive session with only the members of the board, a court reporter, the officer, the chief, their representatives, and such witnesses as may be called in attendance, unless the officer requests that it be open. Witnesses may be excluded from the hearing until it is their turn to present evidence. The officer and the chief may each be represented by a person designated in writing to act for him. Notice at least five days in advance of the hearing shall be given by each party intending to be represented, including the name of the representative. Failure to give such notice may result in postponement of the hearing. (D) The conduct of the hearing shall be under the chairman's control, and in general, shall follow the steps listed in clauses (i) - (vi) of this subparagraph. (i) The hearing shall begin with the chief's presentation, supported by such proof as is deemed necessary. (ii) The officer may cross-examine any witnesses for the chief. (iii) The officer may then present such testimonial or documentary proof as desired in rebuttal or in support of the contention that the code of ethics has not been violated. (iv) The chief may cross-examine any witnesses for the officer and offer rebuttal to the testimony of the officer's witnesses. (v) Closing arguments may be made by each party. (vi) A record of the hearing shall be made so that a certified transcript can be prepared if required. (E) The board may consider only such evidence as is presented at the hearing. If the board feels or determines that the evidence presented is insufficient, the board may ask for information from the chief or appellant or ask questions on their own motion. After all the evidence has been presented, the board must determine whether the allegation against the officer is supported by substantial evidence and notify the officer in writing within 10 days of the hearing. The notice must include: (i) which acts or omissions by the officer, if any, violated the code of ethics; (ii) a statement of the evidence relied upon; (iii) a statement of which section or sections of the code of ethics, if any, were violated by the acts or omissions of the officer; (iv) the recommendation of the board to the commission concerning revocation of the officer's certificate; and (v) the officer's right to appeal the board's recommendation to the commission by giving the board written notice of his intent to appeal its recommendation within 10 days of his receipt of the board's recommendation. (F) Computation of Time. In computing any period of time prescribed or allowed by these rules, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday. (3) Acceptance and revocation. The commission shall follow the recommendation of the board concerning the revocation of an officer's certification at its next regularly scheduled meeting, unless the officer appeals the board's recommendation to the commission. The commission shall notify the board and the officer of its decision. (4) Appeal to the commission. If the officer is aggrieved by the recommendation of the board, he/she may appeal to the commission by giving the board written notice of his/her intent to appeal its recommendation within 10 days of his/her receipt of the board's recommendation. The commission shall hear the appeal at its next regularly scheduled meeting after the record of appeal has been filed and all questions about its accuracy have been resolved. The appellant may request the hearing to be held in executive session. The commission may not substitute its judgment for that of the board, unless it finds the recommendation of the board was arbitrary, capricious, unlawful, or not supported by substantial evidence. (A) All allegations by an officer that the recommendation of the board was arbitrary, capricious, unlawful, or not supported by substantial evidence shall be resolved by a review of the record of appeal; however, on the motion of either the officer or the board, the commission may order that additional evidence be taken to supplement the transcript if it appears that the officer or board has evidence to offer which is material, relevant, and not unduly repetitious, which that party, for good cause, was unable to adduce at the local hearing. (B) Within 30 days of the date on which it is notified, the officer wishes to appeal, the board must file the record of appeal with the commission. The record must include: (i) the chief's notification to the officer of the allegation that the code of ethics has been violated; (ii) the chief's recommendations to the board concerning certificate revocation; (iii) the officer's request for a hearing before the board; (iv) the board's notification to the officer that the code of ethics was violated, including: (I) a statement of the evidence received or considered; (II) a statement of matters officially noticed; and (III) all documents and exhibits found in the board hearing; (v) the recommendation of the board; and (vi) a certified transcription of the hearing before the board. (C) The board shall provide the officer with written notice when the record of appeal is prepared and shall make the record available to the officer for inspection. The board shall provide the officer with copies of all items in the record of appeal other than the transcript. A copy of the transcript shall be provided to the officer for a reasonable charge upon request. (D) The record of appeal filed by the board shall be considered to be complete and accurate and shall be admitted into evidence before the commission for all purposes, unless the officer files objections to the record, which set forth specifically those items which are relevant and material and which have been erroneously omitted from the record or those portions of the record which are relevant and material but which have been inaccurately transcribed, within 30 days of the date of the filing record. The commission shall conduct a proceeding for the purpose of receiving evidence relevant to any such challenge to the record if it appears that the matter in dispute is material to the outcome of the appeal. (E) Allegations by the officer that the recommendation of the board was arbitrary, capricious, or unlawful must allege sufficient facts which would support a holding that the board's recommendation was not supported by substantial evidence. If such allegations are not made, no cause of action will be stated with regard to these claims. (F) Upon either party's request, the commission shall afford both parties with the opportunity to present oral argument concerning the merits of the appeal. (G) The commission may substitute its judgment for that of the board when the board's recommendation was arbitrary, capricious, unlawful, or not supported by substantial evidence. (H) The commission may remand any appeal to the board for further proceedings if the interests of justice so require. (I) The commission shall notify the officer of its decision in writing within 30 days after it has reached a decision. sec. 341.2. Local Juvenile Board Administration. (a) Local juvenile probation service system. This standard is mandatory. The juvenile board of the county is the statutory administrative authority and shall evaluate, monitor, and, when necessary, recommend modification of all functions of juvenile probation services, in accordance with the commission standards. (b) Juvenile service organization. This standard is mandatory. The juvenile board shall ensure that each autonomous juvenile probation department is headed by a single administrative officer, who shall be responsible to the board. (c) Joint service organization. This standard is mandatory. The juvenile board, when probation services for adult and juvenile offenders are provided by a single probation office, shall ensure that the juvenile department policies, programs, and procedures are clearly differentiated. (d) Local juvenile probation services administration. This standard is mandatory. The juvenile board shall specify the responsibilities and functions of the juvenile probation department as well as the authority, responsibility, and function of the position of the chief administrative officer. The chief administrative officer shall possess qualifications for certification as a juvenile probation officer. (e) Local management. This standard is mandatory. The juvenile board shall ensure that the chief administrative officer develops and maintains an administrative manual which includes policies, procedures, and regulations of the juvenile probation department as well as a current organizational chart depicting structure, lines of authority, and responsibility. (f) Fiscal policy. This standard is mandatory. The juvenile board shall adopt written fiscal policies and procedures to be followed by the designated fiscal officer. They shall include, at a minimum: internal controls, petty cash, bonding, signature control of checks, and employee expense reimbursement. (g) Standards compliance. This standard is mandatory. The juvenile board's acceptance of state aid represents its agreement to comply with the minimum standards and rules as formulated and adopted by the commission. Noncompliance with minimum standards may be enforced by withholding of state funds. (h) Accounting responsibility. This standard is mandatory. The juvenile board shall assign accounting responsibility for fiscal affairs to an appropriate county or district fiscal officer. An annual operating budget shall be prepared and maintained in a manner consistent with standard accounting procedures and shall be submitted to the commission. (i) Fiscal responsibility. This standard is mandatory. The juvenile board shall ensure that commission funds are retained in a special fund in the designated county depository, or in instances of multi-county jurisdictions, in the deposit of the most populated county, to ensure security and separate accountability. The juvenile board shall furnish annual fiscal audits of local funds and state aid funds to the commission. (j) Surety bond. This standard is mandatory. The juvenile boards shall ensure that all public monies are protected by requiring that all employees with access to monies are covered by surety bonds. (k) Independent audits. This standard is mandatory. The juvenile board shall provide and submit a fiscal audit of program expenditures to the commission following completion of the contract period. (l) Financial and statistical records. This standard is mandatory. The juvenile board shall ensure that juvenile probation departments retain, submit, and make available for inspection such information, records and reports as may be required by the commission. (m) Minimum facilities. This standard is recommended. The juvenile board shall ensure that adequate office space is provided for all juvenile probation personnel. There should be a private office or a place for interviewing and counseling clients privately. Each office should have the necessary lighting, air conditioning, heating, telephones, furniture, equipment, and square footage to ensure effective delivery of services. The location of the juvenile probation facility and other field offices should be reasonably accessible to children, families, and the general community. (n) Contracts for services to juveniles. This standard is recommended. The juvenile board shall encourage agreements with private agencies for community residential services and community nonresidential services. The juvenile board shall encourage the development of additional community facilities and community service resources. (o) Victims rights. This standard is mandatory. The juvenile board shall insure that guidelines and procedures are established to afford victims their rights under Chapter 57 of the Texas Family Code. sec. 341.3 Juvenile Probation Services (a) Juvenile probation process. This standard is mandatory. The chief administrative officer shall ensure that policy and procedure guidelines for services identified by statute and the juvenile board are maintained and will minimally include: (1) process for detention (2) informal adjustment (3) conditions of probation (4) violation of probation (5) court appearances (6) intake/preliminary investigation (7) discharge; and (8) consideration of victim's impact statements under Chapter 57 of the Texas Family Code. (b) Public protection. This standard is mandatory. The chief administrative officer shall ensure that juvenile probation personnel are cognizant of their responsibility to the community and will initiate reasonable procedures to protect the community from youthful offenders within the scope of legal mandates and available resources. (c) Juvenile probation services for probationers. This standard is mandatory. The chief administrative officer shall ensure that both the juvenile probationer and parents or guardians are apprised of the court procedures as well as programs and conditions of probation. (d) Written reports. This standard is mandatory. The chief administrative officer ensures that juvenile probation officers follow established procedures and formats for written reports to be submitted to the court and to the Texas Youth Commission. (e) Case record management. This standard is mandatory. The chief administrative officer shall maintain and update all written policies, procedures, and rules as promulgated by the juvenile board and/or the commission. (f) Agency cooperation. This standard is recommended. The chief administrative officer shall cooperate with all community interest groups and service agencies which enhance juvenile justice programs. (g) Community involvement. This standard is recommended. The chief administrative officer should encourage community education and public involvement in the juvenile justice system process. (h) Volunteers. This standard is recommended. The chief administrative officer should encourage the use of volunteers and provide orientation and training for all citizens involved. (i) Courtesy supervision. This standard is mandatory. The chief administrative officer, with juvenile board approval, shall adopt policies and procedures for the transfer of juvenile probation supervision to or from other departments in regard to properly requested courtesy supervision. (j) Monetary restitution. This standard is mandatory. The chief administrative officer, with juvenile board approval, shall establish guidelines for the receipt, accounting, and disbursement of restitution monies. (k) Research and management systems. This standard is recommended. The chief administrative officer shall develop an organized system of information and data gathering on juvenile probation activity that can be used for research and management purposes. sec. 341.4 Juvenile Probation Personnel (a) Probation department personnel employment, promotion, and discharge. This standard is mandatory. The juvenile board shall ensure that juvenile probation officer qualifications for employment adhere to the Texas Human Resources Code, sec.141.061(a), and any additional standards promulgated by the commission. The juvenile board should ensure that the selection, retention, and promotion of all probation department personnel are on the basis of merit, performance, and specific qualifications. (b) Employment requirements/exceptions. This standard is mandatory. Juvenile probation officers must meet the statutory requirements relating to employment eligibility. The juvenile probation department may apply to the commission for exemption of the requirements of one year of experience or graduate study. The application should document that reasonable efforts were made to employ a probation officer with one year of experience or graduate study and state why, in their opinion, the efforts were unsuccessful. Internship may be considered as experience, where the duties are those of a probation officer and the intern is supervised by a probation officer. (c) Employment requirements for juvenile probation officer one year graduate study defined. This standard is mandatory. The phrase "one year of graduate study," Texas Human Resources Code 141.061(a)(3)(A), is interpreted to mean at least 24 post- graduate credit hours earned in the behavioral science field with certification from the school of enrollment attesting that the student has an acceptable scholastic standing. The following fields of graduate study presently approved by the commission are: criminology, corrections, counseling, law, social work, psychology, sociology, cultural anthropology, business management, public administration, and education. (d) Juvenile probation departments personnel/salaries. This standard is mandatory. The juvenile board shall ensure that all salary levels of juvenile probation department personnel are reasonable and comparable with prevailing salaries of the public and private sectors. The salary scale for juvenile probation officers shall be no less than the salary scale for adult probation officers. All fringe benefits and allowances provided local county employees shall also be included for juvenile probation services personnel. All comparisons are made in the respective county or multi-county jurisdiction. (e) Personnel policies. This standard is mandatory. Written personnel policies shall be adopted by the board and the chief administrative officer shall ensure that all employees are provided with a copy and maintain compliance with such policies and update them as necessary. (1) Evaluation. This standard is mandatory. The chief administrative officer shall ensure that personnel policy requires an annual review of each employee's performance in departments with employees in addition to the chief. The evaluation will be in writing and discussed with the employee. (2) Grievance procedures. This standard is mandatory. The chief administrative officer shall ensure that a written grievance procedure is contained in the personnel policy publication. (f) Probation personnel/referral ratio. This standard is mandatory. The juvenile board shall strive to employ at least one juvenile probation officer with necessary support services for each 100 referrals annually. A referral occurs when some action is taken by a juvenile probation department in response to an allegation of delinquent conduct or conduct indicating a need of supervision. (g) Equal opportunity. This standard is mandatory. The juvenile board shall ensure that the juvenile probation department and juvenile detention facility complies with all state and federal equal employment opportunity laws and regulations. A person shall not be discriminated against in the hiring, promotion, discharge, pay, fringe benefits, or other aspects of employment on the basis of that person's race, color, religion, sex, national origin, age or disability. (h) Training program. This standard is mandatory. Each department shall develop a training plan to assure all employees receive sufficient commission approved training. The plan shall identify the training resources to be used. If departments provide training in-house the curriculum shall be approved by the commission. (i) Training required for certification. This standard is mandatory. The chief administrative officer shall ensure that all juvenile probation officers be certified and receive 40 hours of training each year. Recertification is required every two years. Training requirements are mandatory for recertification. (j) Preservice training. This standard is mandatory. The chief administrative officer shall ensure that all full-time juvenile probation officers receive 40 hours of orientation training within the first six months of their employment. The curriculum for such training must be approved by the commission. (k) Identification. This standard is mandatory. The chief administrative officer shall ensure that each juvenile probation officer is furnished proper official identification. (l) Support services. This standard is recommended. The juvenile board shall ensure that juvenile probation departments officers have adequate support services in order to carry out their duties and responsibilities in an efficient manner. (m) Professional activities. This standard is recommended. The juvenile board shall ensure that juvenile probation departments encourage participation of personnel in appropriate professional organizations, meetings, and conferences. The juvenile probation department should maintain professional journals, publications, and calendars of professional events. (o) Auto liability insurance. This standard is mandatory. The juvenile board shall ensure that all personnel and vehicles used in the transportation of children are appropriately insured as required by Texas state Law. sec. 341. 5. Local Juvenile Boards - Advisory Councils (a) Juvenile board duties. This standard is mandatory. Juvenile board duties shall be governed by the individual board's specific statutory provisions. Unless statutory provisions designate frequency of meetings, the juvenile board shall meet at least quarterly to determine policy and to ensure the efficient operation of the juvenile probation department and all facilities under its authority and control. (b) Training. This standard is recommended. The juvenile board shall ensure that sufficient training is received by selected board members. (c) Advisory council appointment. This standard is mandatory. The juvenile board shall appoint an advisory council if so mandated by its statutory authority. (d) Advisory council duties. This standard is recommended. The advisory council serves to advise the juvenile board of citizen reaction to all juvenile programs and serve as a liaison between the juvenile board and the community at large. The juvenile board has the discretion as to whether or not to implement any programs or recommendations of its advisory council. sec. 341. 6. State Administration (a) Fiscal Management requirements. This standard is mandatory. The juvenile board shall assign accounting responsibility for fiscal affairs to an appropriate fiscal officer. The fiscal officer shall assist the juvenile board to prepare the annual operating budget and shall maintain the budget in a manner consistent with standard accounting procedures. (b) Project director designated. This standard is mandatory. The juvenile board shall designate an administrator to assume responsibility for project management. The project director shall ensure that all program activities and expenditures of state funds are consistent with the purposes outlined in the budget application agreement. (c) Audit requirements. This standard is mandatory. The juvenile board shall submit to the commission a certified copy of the annual audit of juvenile probation department expenditures for the most recently completed fiscal year on or before July 1 of each year. The audit shall identify the sources of funds; i.e., state aid funding or locally generated funding. Expenditures for construction and renovation, if any, shall be reported separately from those for juvenile probation services in order that maintenance of local effort can be documented and eligibility for any match category funding can be determined. (d) Allowable expenditures. This standard is mandatory. The commission will provide state aid funds to be used for juvenile probation services within three categories: staff services, nonresidential services, and residential services. (e) Contract/agreement requirements. This standard is mandatory. Upon certification of eligibility, the commission will provide a standard agreement/contract to be executed by the juvenile board and the commission. The application shall be a part of the standard contract. (f) Investment of idle funds requirements. This standard is mandatory. The juvenile board shall ensure that the designated fiscal officer reports the appropriate amount of state aid funds which may be invested. The investment of commission funds should provide for a reasonable interest rate and necessary protection of principal. Any interest accrued shall be considered generated income and shall be reported to the commission as such. Any income generated by the deposit shall be placed in the special fund for juvenile probation services. (g) Compliance. This standard is mandatory. The commission shall have the right to inspect, examine, investigate, audit, and evaluate the administrative practices and the program of services provided by the juvenile board. For this purpose the commission may require such information and data as is necessary to determine compliance. (h) Monitoring and auditing. This standard is mandatory. Commission staff may conduct an on-site monitoring visit with each contracting juvenile jurisdiction for the purposes of review and evaluation of the administrative practices, financial records, and the program of services provided by juvenile boards or juvenile probation departments. (i) Expenditure report requirements. This standard is mandatory. Contracting juvenile boards are required to submit on a quarterly basis a completed expenditure report in a format to be distributed by the commission. (j) Conflict of interest. This standard is mandatory. No officer, member, or employee of the commission or the local juvenile board shall participate in any decision which would create a pecuniary benefit to the individual and thereby create a conflict of interest in the decision. sec. 341.7. Waiver to Standards - THIS STANDARD IS MANDATORY (a) The juvenile board may make application for waiver of a standard or standards with a plan to adopt said standard or standards by a certain date and include an explanation as to why standard or standards cannot be complied with immediately. Upon proper review, the Texas Juvenile Probation Commission may grant requested waiver of standard or standards under one or more of the following circumstances: (1) The department needs additional time to achieve compliance (not to exceed two years); (2) Compliance with the standard or standards will jeopardize the operations of the department; (3) The standard or standards are not applicable to the existing situation or circumstances within the department; or (4) Compliance with the standard or standards will impose an undue hardship for the department without appreciable benefit in the delivery of juvenile probation services. (b) Waivers may be granted for a period not to exceed two years, at which time, if compliance has not been achieved, the board must submit another waiver request. sec. 341.8. Vehicle Exemption - THIS STANDARD IS MANDATORY The Texas Juvenile Probation Commission will not place its inscription on any motor vehicle: (1) driven by agency personnel who provide technical assistance to local programs administering probation services to juveniles; (2) driven by agency personnel who programmatically monitor and fiscally audit records; (3) driven by agency personnel who may deliver direct probation services to local jurisdictions throughout the state; and (4) subject to vandalism due to vehicle's extended use away from home base. sec. 341.9. Guidelines for Informal Adjustment Fees - This Standard is Recommended. The juvenile court may adopt a fee schedule for informal adjustment services and rules for the waiver of a fee for financial hardship. Juvenile court fees for informal adjustment services may not exceed the amount prescribed by the Texas Family Code, depending upon the ability to pay of the parent, guardian, or custodian of the child participating in informal adjustment. Fees for informal adjustment may be waived for financial hardship. The juvenile court order adopting a schedule of fees and rules for waiver of fees shall state specifically which information about the financial resources and liabilities of the parent, guardian, or custodian the juvenile probation department must consider when making determinations of ability to pay. The probation officer arranging the plan for informal adjustment shall collect the informal adjustment fee under the rules adopted by the court unless he/she waives the fee for financial hardship under the rules adopted by the court. sec. 341.10. Complaints Against Juvenile Boards - This standard is mandatory. (a) The commission's staff shall prepare and distribute to each juvenile board with which it contracts information of public interest describing the function of the commission for distribution by the juvenile board. The information shall describe the juvenile board system and the commission's function and role in setting standards for juvenile boards and juvenile probation departments. It shall contain the name, address, and telephone number of the commission, and shall inform the public that complaints concerning juvenile board violations of commission rules or standards may be made to the commission. (b) When the commission receives a written, signed complaint about a juvenile board, the commission staff shall review the circumstances surrounding the complaint to determine whether the juvenile board has violated the rules or standards of the commission. (1) If the staff determines the complaint is about the juvenile services within the discretion of the juvenile board, the complaint will be referred to the juvenile board. The complainant shall be notified of the referral in writing. (2) If the staff determines the juvenile board has violated the commission's rules or standards, it will inform the juvenile board in writing and give the juvenile board an opportunity to come into compliance. If, within 90 days of the date on which the juvenile board received written notice of the staff determination, the juvenile board does not propose its own means of achieving compliance which is acceptable to the staff, the staff will propose a solution to the board and attempt to negotiate a mutually agreeable solution. (A) If the commission's staff and the juvenile board cannot reach an agreement, the staff will give the juvenile board written notice of its intent to refuse, reduce, or suspend state aid, under authority of the Texas Human Resources Code, sec.141.085. The juvenile board shall have 15 days after receipt of the notice to notify the executive director how it will comply with the staff's solution, or that it appeals the staff decision. (B) The juvenile board's appeal must be in writing, and must state specifically its differences of opinion with the commission's staff concerning the facts in dispute and the solution necessary under the standards or rules of the commission. The appeal must state whether the juvenile board requests a hearing before the commission. (C) The commission shall set the appeal on the agenda for its next regularly scheduled meeting. If the juvenile board has requested a hearing, the juvenile board and the commission's staff may appear and make oral presentations concerning the appeal. If the juvenile board does not request a hearing before the commission, the commission will make its decision based upon the record. (c) The complainant shall be notified in writing of the progress of the investigation and resolution of the complaint at least quarterly until the complaint is resolved, and shall be notified of the resolution in writing. sec. 341.11. Coordinated Services for Multiproblem Children and Youth - This standard is mandatory. (a) The Texas Juvenile Probation Commission adopts by reference a joint memorandum of understanding with the Texas Commission for the Blind, Texas Department of Health, Texas Department of Protective and Regulatory Services, Texas Department of Mental Health and Mental Retardation, Texas Education Agency, Texas Rehabilitation Commission, and the Texas Youth Commission concerning coordinated services for multiproblem children and youth which provides for the implementation of a system of community resource coordination groups. (b) The memorandum of understanding was published in the November 15, 1988, issue of the Texas Register (13 TexReg 5727) by the Texas Department of Human Services. Copies of the memorandum of understanding are available from the Texas Juvenile Probation Commission. sec. 341.12. Participation in Community Resource Coordination Groups - This standard is mandatory. Juvenile boards shall participate in the system of community resource coordination groups and the procedures in the memorandum of understanding adopted in sec.341.11 of this title (relating to Coordinated Services for Multi- problem Children and Youth). The chair of the juvenile board or a judicial member of the juvenile board designated by the chair shall serve as representative to the interagency dispute resolution process described in the memorandum of understanding. The administrative officer who heads the juvenile probation department or their designee shall serve as liaison to the community resource coordination group. 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 25, 1995. TRD-9506611 Vicki Wright Interim Executive Director Texas Juvenile Probation Commission Effective date: June 22, 1995 Proposal publication date: March 3, 1995 For further information, please call: (512) 443-2001 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 15. Medicaid Eligibility The Texas Department of Human Services (DHS) adopts amendments to sec.sec.15. 100, 15.201, 15.310, 15.435, 15.455, 15.460, and 15.475, without changes to the proposed text as published in the April 28, 1995, issue of the Texas Register (20 TexReg 3134). The amendments are justified to provide definitions for medical services and social service and clarify rules concerning qualified Medicare beneficiaries, eligibility requirements for residents of public institutions, liquid resources, unearned income, income exemptions, and deeming of income. The amendments will function by ensuring that eligibility policy is applied consistently, statewide. The department received no comments regarding adoption of the amendments. Subchapter A. General Information 40 TAC sec.15.100 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Service Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec. sec.22.001-22.024 and sec.sec.32.001-32.042. 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 June 1, 1995. TRD-9506614 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: July 1, 1995 Proposal publication date: April 28, 1995 For further information, please call: (512) 450-3765 Subchapter B. Medicare and Third-party Resources General Information 40 TAC sec.15.201 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Service Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec. sec.22.001-22.024 and sec.sec.32.001-32.042. 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 June 1, 1995. TRD-9506615 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: July 1, 1995 Proposal publication date: April 28, 1995 For further information, please call: (512) 450-3765 Subchapter C. Basic Program Requirements 40 TAC sec.15.310 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Service Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec. sec.22.001-22.024 and sec.sec.32.001-32.042. 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 June 1, 1995. TRD-9506616 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: July 1, 1995 Proposal publication date: April 28, 1995 For further information, please call: (512) 450-3765 Subchapter D. Resources 40 TAC sec.15.435 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Service Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec. sec.22.001-22.024 and sec.sec.32.001-32.042. 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 June 1, 1995. TRD-9506617 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: July 1, 1995 Proposal publication date: April 28, 1995 For further information, please call: (512) 450-3765 Subchapter E. Income 40 TAC sec.sec.15.455, 15.460, 15.475 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Service Commission with the authority to administer federal medical assistance funds. The amendments implement the Human Resources Code, sec. sec.22.001-22.024 and sec.sec.32.001-32.042. 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 June 1, 1995. TRD-9506618 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: July 1, 1995 Proposal publication date: April 28, 1995 For further information, please call: (512) 450-3765