ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part III. Office of the Attorney General Chapter 55. Child Support Enforcement Subchapter H. License Suspension 1 TAC sec.sec.55.201-55.214 The Office of the Attorney General adopts new Subchapter H, sec.sec.55.201-55. 214, concerning license suspension. Sections 55.202-55.205, 55.207-55.209, and 55.214 are adopted with changes and sec.sec.55.201, 55.206, 55.210-55.213 are without changes to the proposed text as published in the July 28, 1995, issue of the Texas Register (28 TexReg 5555). This subchapter prescribes the forms and procedures for the implementation of Family Code, Chapter 232, license suspension for nonpayment of child support. This subchapter specifies where, when and in what form, petitions for suspension of licenses in Title IV-D agency cases must be filed. Further, this subchapter augments the provisions of the Government Code, Chapter 2001, the Administrative Procedures Act, by promulgating a Request for Hearing form, requiring that parties exchange lists of witnesses and copies of documentary evidence prior to the hearing, and providing for telephone hearings. Finally, this rule specifies the forms to be used to notify a licensing agency that an order suspending license or an order vacating the suspension has been entered. The following groups or associations submitted comments: Primary Nurturing Fathers of Texas, Texas Fathers Alliance, American Fathers Coalition, Texas Fathers for Equal Rights, Mens Hotline, and Children's Right's Coalition. Comments received are summarized as follows: Government Code, sec.662.003, rather than the General Appropriations Bill, specifies state holidays. A provision or provisions should be added to require notice of the right to review and adjustment of the child support order, proof of ability to pay, or referral to the jobs program, as prerequisites to instituting a license suspension petition. The Notice of Petition to Suspend License form should be more closely modeled after the citation form used in civil district court proceedings. Family Code, sec.232.006(b) provides that the notice be served as in civil cases generally. That requirement, coupled with the fact that certain petitions to suspend license must be filed in district or county courts, can be better accomplished with a modified form. Clarify that the time periods to request a hearing, come into compliance with payments, or suffer a default, run from the day the notice is received. The petition should contain a statement of jurisdictional basis, specifying whether or not the case is a Title IV-D agency case. On the Request for Hearing and Request for Telephone Hearing forms, the name, address, telephone number, and Social Security number of the obligor should be moved from the top of the form to below the signature of the obligor. The Request for Telephone Hearing form should be clarified to provide that an obligor may change the number at which he or she will be for a telephone hearing; however, it is the obligor's responsibility to notify the Coordinator of the new number. Provide a form for notifying the licensing authority that a previously suspended license is being reinstated. With regard to making notice of the right to review and adjustment, proof of ability to pay, or referral to a jobs program prerequisites to instituting a petition for license suspension, the Office of the Attorney General declines to make these changes as they would be impermissible amendments to the Family Code, chapter 232. However, the Office of the Attorney General will continue to make every effort to ensure that all orders in the Title IV-D system are appropriate under state child support guidelines, and that individuals are notified of this service by various methods, including through correspondence relating to license suspension. In addition, the Office of the Attorney General will comply with all obligations relating to referral to a jobs program. The new sections are adopted under the Family Code, Chapter 232, Suspension of License for Failure to Pay Child Support, sec.232.016, which provides the Office of the Attorney General with the authority to prescribe forms and procedures for the implementation of Chapter 232. sec.55.202. Definitions. The following words and terms when used in this subchapter shall have the following meanings, unless the context clearly indicates otherwise. Obligee-the person to whom child support is due. Obligor-the person who owes child support. Parties-the parties to a Chapter 232 hearing are the petitioner, the obligor, and the designated representative of the Title IV-D agency in a Title IV-D case. Petitioner-the party filing the Petition to Suspend License; the petitioner may be the designated representative of a child support agency, or the obligee, either personally or through his or her representative. Representative-an attorney licensed in the State of Texas or another state or a Certified Public Accountant licensed in the State of Texas or another state. Title IV-D agency -the agency designated by Texas law to perform the functions and provide the services required by Title IV-D of the Social Security Act. sec.55.203. Forms. (a) Notice of Filing of Petition to Suspend License. The notice shall take the form as follows: Figure 1: 1 TAC sec.55.203(a) (b) Petition to Suspend License. The petition shall take the form as follows: Figure 2: 1 TAC sec.55.203(b) (c) Request for Hearing. The request shall take the form as follows: Figure 3: 1 TAC sec.55.203(c) (d) Request for Telephone Hearing. The request shall take the form as follows: Figure 4: 1 TAC sec.55.203(d) (e) Notification to Licensing Authority of Order Suspending License. The notification shall take the form as follows: Figure 5: 1 TAC sec.55.203(e) (f) Notification to Licensing Authority of Order Vacating or Staying Order Suspending License. The notification shall take the form as follows: Figure 6: 1 TAC sec.55.203(f) (g) The Office of the Attorney General promulgates the following two forms as suggested model forms for use by the courts. (1) Notice of Filing of Petition to Suspend License. The suggested model notice form takes the form as follows: Figure 7: 1 TAC sec.55.203(g)(1) (2) Petition to Suspend License. The suggested model petition form takes the form as follows: Figure 8: 1 TAC sec.55.203(g)(2) sec.55.204. Coordinator. (a) The coordinator may be contacted at: (512) 463-2181, extension 5803 Office of the Administrative Law Judge Child Support Division Office of the Attorney General 210 Barton Springs Road, Austin, Texas 78704 (hand delivery) P.O. Box 12017, Mail Code 039-3 Austin, Texas 78711-2017 (Postal Service delivery) (b) The coordinator's office will be open from 8:00 a.m. to 5:00 p.m., Monday through Friday. The coordinator's office will be closed on those days specified as holidays in Government Code, sec.662.003. (c) Questions to the Office of the Administrative Law Judge must be directed to the coordinator. Written inquiries to the Office of the Administrative Law Judge must be served on all parties to the proceeding. (d) Documents and pleadings shall be deemed filed only when actually file marked with the official stamp of the Coordinator, Office of the Administrative Law Judge. sec.55.205. Initiating a Proceeding. (a) Filing the Petition. The petitioner initiates a proceeding by filing the Petition to Suspend License packet with: Coordinator, Office of the Administrative Law Judge Child Support Division Office of the Attorney General 210 Barton Springs Road, Austin, Texas 78704 (hand delivery) P.O. Box 12017, Mail Code 039-3, Austin, Texas 78711-2017 (Postal Service delivery) (b) Petition to Suspend License Packet. The packet is the Notice of Filing Petition to Suspend License, with all attachments, including the Petition to Suspend License, Request for Hearing, and Request for Telephone Hearing forms. (c) Number of Copies. The original of the packet must be filed with the coordinator. The coordinator must be supplied with an additional copy of the packet, including the Notice of Filing of Petition to Suspend License to be served on the obligor. (d) Issuance of Notice of Filing of Petition to Suspend License. After determining that the packet is complete and that sufficient copies of the packet have been tendered, the coordinator will assign a docket number to the petition, seal the notice, file-stamp the notice and petition, and return the docketed, sealed and file-stamped copies to the petitioner. (e) Service. The petitioner is responsible for obtaining service of the notice on the obligor as in civil cases generally. See Texas Rule of Civil Procedure 106. (f) Evidence of Service. Upon obtaining service on the obligor, the petitioner must file evidence with the coordinator that service has been obtained. A copy of the return of service or a copy of the return receipt on certified mail is evidence that service has been obtained. (g) Title IV-D Agency. If the petitioner is not the Title IV-D agency, the petitioner must provide copies of the packet and all pleadings and documents to: Administrative Law Section Child Support Division Office of the Attorney General, 210 Barton Springs Road, Austin, Texas 78704 (hand delivery) P.O. Box 12017, Mail Code 073 Austin, Texas 78711-2017. sec.55.207. Prehearing Matters. (a) Forty days prior to the hearing, each party shall file with the coordinator, and serve on the other parties, a list of witnesses the party will call at the hearing and copies of all documentary evidence to be offered into evidence at the hearing. (b) Objections to documentary evidence must be in writing and filed with the coordinator 30 days prior to the hearing. An administrative law judge designated by the Office of the Administrative Law Judge, Child Support Division, Office of the Attorney General, shall rule on evidentiary objections no later than 15 days prior to the hearing. The administrative law judge may convene a prehearing conference on the evidentiary objections prior to ruling on the objections. (c) The coordinator will compile and transmit to the parties ten days prior to the hearing a petitioner's evidentiary packet and an obligor's evidentiary packet. The respective packets will contain the documentary evidence to be offered by the respective party. The coordinator will identify and consecutively paginate the respective packets. (d) A party will be required to obtain permission of the administrative law judge to supplement the list of witnesses or documentary evidence if submitted less than 40 days prior to the hearing. Objections to such evidence shall be resolved at the hearing. sec.55.208. Conduct of the Hearing. (a) An administrative law judge designated by the Office of the Administrative Law Judge, Child Support Division, Office of the Attorney General, shall preside at the hearing on the petition. (b) The petitioner is entitled to open and close at the hearing. sec.55.209. Procedure for a Telephone Hearing. (a) The obligor may request a telephone hearing at the time he or she requests a hearing on the petition. To make such a request, the obligor must complete the Request for Telephone Hearing form and attach it to the Request for Hearing form. (b) Failure of the obligor to be available for the telephone hearing, at the telephone number supplied by the obligor, shall result in a default order suspending the obligor's license. sec.55.214. Notification to the Licensing Authority. (a) The Title IV-D agency will transmit the final order suspending license to the licensing authority as soon as the final order is enforceable. The Title IV- D agency will transmit the final order using the Notification to Licensing Authority of Order Suspending License form promulgated as a part of this subchapter. (b) The Title IV-D agency will transmit the order vacating or staying order suspending license to the license authority as soon as it is effective. The Title IV-D agency will transmit the order using the Notification to Licensing Authority of Order Vacating or Staying Order Suspending License form promulgated as a part of this subchapter. 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 September 1, 1995 TRD-9511098 Jerry Benedict Assistant Attorney General Office of the Attorney General Effective date: September 22, 1995 Proposal publication date: July 28, 1995 For further information, please call: (512) 475-4291 TITLE 16. ECONOMIC REGULATION Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Records and Reports 16 TAC sec.23.19 The Public Utility Commission of Texas adopts new sec.23.19, concerning registration of power marketers and exempt wholesale generators (EWGs), with changes to the proposed text as published in the July 21, 1995, issue of the Texas Register (20 TexReg 5360). Section 2.053(c) of the Public Utility Regulatory Act of 1995 (PURA 1995), Art. 1446c-o, V.A.T.S. (Vernon Supp. 1995), which becomes effective September 1, 1995, requires each power marketer and EWG to register with the commission or provide proof that it has registered with the Federal Energy Regulatory Commission or been authorized by the Federal Energy Regulatory Commission to sell electric energy at market-based rates. Rule sec.23.19 states the required components of registration by power marketers and EWGs. The persons who filed comments are Central and South West Corporation (CSW); Houston Lighting & Power Company (HL&P); Electric Clearinghouse, Inc. and Enron Capital & Trade Resources (Enron); Texas Utilities Electric Company (TUEC); and El Paso Electric Company (EPEC). All of the commentors generally approved of the rule as drafted, but each had suggestions as to details. CSW commented that at the time they register, power marketers would have difficulty identifying the facilities to be used prospectively. Enron made substantially the same comment. TUEC, on the other hand, proposed that the rule require naming the location of "any," not "each," facility to be used (apparently including those providing power to be sold by power marketers); this, TUEC pointed out, would be the same word used in PURA 1995. The rule has been reworded to make clear that the "facilities" used by power marketers are their offices, not the sources and destinations of power which they market; the "facilities" to be used by EWGs do include generation facilities. The commission believes that using the word "each" eliminates any ambiguity as to the meaning of "any." CSW also stated that registration at the commission should be no more detailed than what is publicly available in such documents as a FERC Form 1. The commission believes that the requirement to describe facilities which are described in other documents filed as part of the registration, including documents filed with FERC, may be satisfied by reference to those documents. HL&P suggested that the definition of EWGs in the rule be that in Section 32 of the Public Utility Holding Company Act of 1935 (15 U.S.C. sec.79 et seq.) The definition in the rule is the definition stated in PURA 1995, and the commission believes adoption of the federal definition would be inappropriate. Enron pointed out that an EWG which owns no generation facilities in Texas but otherwise "does business in Texas" would be required to register under the rule as drafted. The rule has been reworded to apply only to EWGs selling power in Texas, wherever that power may be produced. Enron suggested that the rule does not make clear what is the "date" an EWG or power marketer becomes subject to the statute and rule. TUEC made substantially the same comment. The rule now identifies the date as the date power is first sold. Enron believed that requiring a list of each affiliate "doing business in Texas" asked for too much, covering many transactions of no interest to the commission. It suggested the language, "which is a public utility under the jurisdiction of the commission." That change was incorporated. Enron suggested that the description of an EWG's facilities be specified as those owned or operated by the EWG from which the EWG sells electricity in Texas. That change has been made. EPEC proposed that the rule state that the information required "is filed 'as a part of its registration in Texas.'" The commission believes that language would add nothing. EPEC proposed that the rule require proof that an affiliate is complying with federal and state laws. The commission believes that violation of any law would presumably be dealt with just as it would have been without such a requirement. EPEC proposed that the rule specify that the policy or procedure statements include "sales and purchases of generation and transmission services and ancillary services." The commission believes those items are subsumed under the general language of the rule. EPEC proposed that a registrant be required to identify transmission capacity which it owns or to which it has rights. The commission believes that that information is not necessary in order to assure that those claiming to be power marketers or EWGs are qualified under the statute. The rule requires that registrants identify the "types of business" of the owners of affiliates. This requirement is not intended to limit the ability of firms to change the types of business that they do. Any material change in the type of business an affiliate does will be reportable under the rule. All comments submitted, including those not specifically referenced herein, were fully considered by the commission. The new rule is proposed under Texas Civil Statutes, the Public Utility Regulatory Act of 1995, S.B. 319, 74th Leg., R.S. 1995, to conform to Texas Civil Statutes, the Public Utility Regulatory Act of 1995 as amended by S.B. 373, sec.2.05, 74th Leg., R.S. 1995, which requires power marketers and EWGs to register with the commission. sec.23.19. Registration of Power Marketers and Exempt Wholesale Generators. (a) Purpose. This section describes the procedure by which persons intending to do business in Texas as power marketers or exempt wholesale generators (EWGs) may register with the commission. (b) Definitions. (1) "Power marketer" means a person that becomes owner of electric energy in this state for the purpose of buying and selling the electric energy at wholesale; does not own generation, transmission, or distribution facilities in this state; and does not have a certificated service area. (2) "Exempt wholesale generator" means a person that is engaged directly, or indirectly through one or more affiliates, exclusively in the business of owning, operating, or both owning and operating all or part of one or more facilities for the generation of electric energy and selling electric energy at wholesale in Texas and that does not own facilities for the transmission of electricity, other than essential interconnecting transmission facilities necessary to effect a sale of electric energy at wholesale. (c) Dates. (1) A power marketer or EWG becomes subject to this section on the date that it first buys or sells electric energy at wholesale in this state. (2) No later than 30 days after the date it becomes subject to this section, each power marketer and EWG shall register with the commission or provide proof that it has registered with the Federal Energy Regulatory Commission (FERC) or been authorized by the FERC to sell electric energy at market-based rates. (d) Whether or not it has registered with the FERC, each power marketer or EWG shall (1) State the type of service to be provided in Texas; the address of the power marketer or EWG; the name, address, and telephone number of the person to whom communications should be addressed; the names and types of business of the owners (with percentage of ownership); and the names and addresses of each affiliate which is a public utility, or an affiliate of a public utility, under the jurisdiction of the commission. (2) Describe any transmission facilities in this state, other than interconnection facilities, which any affiliate owns or controls. (3) Identify each certificated service area for the retail sale of electric power in this state owned or controlled by any affiliate. (4) Identify each affiliate which owns, controls, or operates a generator in this state or providing electric energy for sale in this state. (5) Describe the location of each facility used to provide service. Power marketers should state the location of each office from which they carry on their business. EWGs should state the location of each generation facility providing electric energy for sale in Texas. (6) Provide a copy of any applicable policy or procedure statement of the power marketer or EWG concerning sales to or purchases from affiliated Texas utilities. (7) Submit a copy of all information supplied to the FERC in connection with filing or registration as a power marketer or EWG. (8) Submit an affidavit by an authorized person that the registrant is a power marketer or EWG. (e) Each power marketer or EWG shall report any material change in the information provided in response to this section, within 30 days of the change. (f) The Secretary of the Commission shall maintain a list of power marketers and EWGs doing business in Texas. 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 August 31, 1995. TRD-9511056 Paula Mueller Secretary of the Commission Public Utility Commission of Texas Effective date: September 21, 1995 Proposal publication date: July 21, 1995 For further information, please call: (512) 458-0100 TITLE 22. EXAMINING BOARDS Part XIII. Texas Board of Nursing Facility Administrators The Texas Board of Nursing Facility Administrators adopts the repeal of existing sec.sec.241.1-241.3 and new sec. sec.241.1-241.17. Sections 241.2- 241.6, 241. 9-241.11, 241.13, and 241.16 are adopted with changes to the proposed text as published in the March 3, 1995, issue of the Texas Register (20 TexReg 1489). The repeal of existing sec.sec.241.1-241.3 and new sec.sec.241.1, 241.7, 241.8, 241.12, 241.14, 241.15, and 241.17 are adopted without changes and therefore will not be republished. The repealed sections were rules promulgated by the Texas Board of Licensure for Nursing Home Administrators, which was abolished by Texas Civil Statutes, Article 4512q. The new sections establish regulations for the Texas Board of Nursing Facility Administrators to license nursing facility administrators as required by Texas Civil Statutes, Article 4512q. Generally, the new sections define terms commonly used in the profession, set the standards for licensure as a nursing home administrator, establish procedures for application, examination, continuing education, complaint submittal, and to provide procedures for denial, revocation or suspension of a license certificate. These sections are adopted to define what an individual must do to become licensed as a nursing facility administrator. The individual sections cover: definitions, the board, application procedures, criteria for determining fitness for examination and licensure, academic regulations for examination and licensure, administrators-in-training, successful completion of examination, provisional license by endorsement, license renewal and inactive status, continuing education requirements, adverse licensure action, proceedings for adverse licensure action, complaint procedures, monitoring of license, default orders, criteria for licensing of persons with criminal backgrounds, and formal hearing procedures. Comments concerning the proposed rules were received both in writing and at public hearings held in Austin, Dallas, Houston, and Midland during the months of March and April, 1995. The board addressed each of these comments at its meeting on May 26, 1995. Comments and responses are listed below. COMMENT: Concerning sec.241.1(b), a commenter recommended that the board define the term "provisional license." RESPONSE: The board felt that this definition was adequately covered in the statute. COMMENT: Concerning sec.241.1(b), a commenter recommended that the board define the term "moral turpitude." RESPONSE: The board decided that this term would be interpreted by respective criminal cases and statute precedents in concurrence with legal counsel. COMMENT: Concerning sec.241.1(b), a commenter made the recommendation that "the duties of a nursing home administrator" be defined. RESPONSE: After concurring with legal counsel, the board decided that this was not a relevant issue with regards to these proposed rules. COMMENT: Concerning sec.241.2(a)(2), a commenter made the recommendation that the composition of the board be changed to three public members, two licensed nursing facility administrators, one doctor, one registered nurse, one educator, and one university professor with a Ph.D./Ed.D. in Geriatric Management. RESPONSE: The board felt this comment was not relevant to the proposed rules. In addition, they stated that any changes in the composition of the board would take legislative action. COMMENT: Concerning sec.241.2(e), a commenter recommended that the board add the "age." RESPONSE: The board decided to incorporate this word with the addition "an applicant must be a minimum of 18 years of age" to apply for a nursing facility administrators license. COMMENT: Concerning sec.241.2(i)(3)(A) and (F), a commenter recommended that the application fee and the renewal fee be lowered to $100. RESPONSE: The board has acknowledged that a fee reduction may be a possibility in the future, but budgets for this program have already been submitted. The board noted that the fees would be re-evaluated by the finance committee before the next budget submission. COMMENT: Concerning sec.241.3, a commenter made a recommendation that a renewal application have a modified release to include, "continued fitness for licensure." RESPONSE: The board, after conferring with legal counsel, stated that this was not relevant at this time. COMMENT: Concerning sec.241.3, a commenter made a recommendation that the board raise the standards of the 200-clock hour course to include more financial management and accounting courses. RESPONSE: The board feels that this is not relevant with regards to the proposed rules. COMMENT: Concerning sec.241.3, a commenter suggested that those schools approved to provide the 200-clock hour nursing facility administrator's course be approved based on the number of individuals who pass the licensure exam annually. RESPONSE: The board felt that this was not relevant to the proposed rules. COMMENT: Concerning sec.241.3(c)(1)(C), a commenter requested that the board define "200-clock hour nursing facility administrators course." RESPONSE: The board feels that this is sufficiently defined in the proposed rules. COMMENT: Concerning sec.241.5(b)(1) and (2), a commenter recommended that the bachelor's degree requirement be abolished; and that an applicant with a minimum of an associate degree in long term health care administration or a related field who has been employed in a nursing facility a minimum of three years, two of which shall be in management, should make an individual eligible to apply for licensure as a nursing facility administrator. RESPONSE: The board felt that the minimum of a bachelor's degree is sufficient. COMMENT: Concerning sec.241.5 and sec.241.6, a commenter requested to allow an Administrator in Training to take the required examinations after 75% to 95% of the internship is completed. RESPONSE: The board disagrees and states that all requirements must be completed before an applicant may test. COMMENT: Concerning sec.241.5(b)(1) and (2), a commenter made a recommendation that the board keep the educational requirement of a minimum of a bachelor's degree. RESPONSE: The board concurs with the commenter. COMMENT: Concerning sec.241.5, a commenter recommends that all college-based internship programs be described in detail. RESPONSE: The board feels that this comment is not relevant to the proposed rules. COMMENT: Concerning sec.241.6, a commenter recommended that the nursing facility must have a "clean track record" before internships may be allowed in the facility. RESPONSE: The board felt that this was a good idea and will have the Education Committee review and revise future programs. COMMENT: Concerning sec.241.6, a commenter stated that a preceptor or licensed nursing facility administrator should not be allowed to have input when an administrator in training is allowed to continue. RESPONSE: The board felt that this was not a relevant issue with regards to the proposed rules. COMMENT: Concerning sec.241.6, a commenter recommended that Texas accept or at least evaluate out-of-state internships and degree programs as the equivalent of the Texas requirements. RESPONSE: The board agrees and the Education Committee has been reviewing and evaluating these requests on an individual basis. COMMENT: Concerning sec.241.6(a), a commenter recommended that the internships be monitored for compliance and learned objectives. RESPONSE: The board agrees and stated that once the final rules and accompanying forms are in place, staff will be instructed to do so, or to initiate a random monitoring process to do this. COMMENT: Concerning sec.241.6(b), a commenter recommended that an applicant with no nursing facility experience should be required to serve 1,040 hours of internship, and those with two years of management experience should be required to serve 520 hours. RESPONSE: The board disagreed with the commenter, however, has reduced the number of required hours from the proposed 1,040 to 1,000 hours of internship. COMMENT: Concerning sec.241.6(b), a commenter recommended that the board leave the required number of internship hours at 520. RESPONSE: The board disagrees with the commenter, however, has reduced the number of required hours from the proposed 1,040 to 1,000 hours of internship. COMMENT: Concerning sec.241.6(b)(2), a commenter recommended that the internship training be allowed in both Medicaid participating and non- participating licensed nursing facilities. RESPONSE: The board agrees and has allowed for training be conducted in either type of facility as long as the facility has a minimum of 60 beds. COMMENT: Concerning sec.241.6(c)(1)-(4), a commenter recommended that a test or a final evaluation form be used to monitor the effectiveness of preceptors. RESPONSE: The board felt that this was not relevant at this time. COMMENT: Concerning sec.241.6(c)(2), a commenter recommended that a licensed individual with two years administrative experience in good standing should be able to become a preceptor. RESPONSE: The board disagrees. COMMENT: Concerning sec.241.6(c)(3), a commenter recommended that the board change the language to read "this certificate will remain in effect as long as the administrator's license is in good standing and the administrator provides the proper administrator training as mandated by the board." RESPONSE: The board disagrees and made no change as a result of the comment. COMMENT: Concerning sec.241.6(c)(3), a commenter made the recommendation to abolish the preceptor seminar, and suggested that in order to precept an intern the following credentials would be needed: bachelor's degree in gerontology or a related field, licensed four years, and licensed in good standing. If the person did not have the above mentioned credentials, they would be required to attend the preceptor seminar. RESPONSE: The board disagrees with the comment. COMMENT: Concerning sec.241.6(c)(6), a commenter recommended that a preceptor be allowed to train one's relatives. RESPONSE: The board agrees and has changed the wording of the paragraph. COMMENT: Concerning sec.241.10, a commenter made the recommendation to eliminate the required categories for continuing education. RESPONSE: The board disagrees. COMMENT: Concerning sec.241.10, a commenter recommended that the board clearly delineate the types of continuing education opportunities which require prior approval and which do not require approval, if any. RESPONSE: The board states that this has been done in sec.241.10. COMMENT: Concerning sec.241.10, a commenter recommended that administrators be allowed to "pick and choose" continuing education opportunities in order to fulfill their individual needs, as well as the mandatory hours required by the board. RESPONSE: The board feels that this subject has been adequately covered in sec.241.10(b)(1)(A)-(E). COMMENT: Concerning sec.241.10(b), a commenter recommended changing the requirement of continuing education from 40 hours to 32 hours and allow 1/2 increments for continuing education to be credited to administrators. RESPONSE: The board disagreed and stated that the 40 hours of continuing education was sufficient, but would allow 1/2 hour increments for continuing education to be used as credit for continuing education. COMMENT: Concerning sec.241.10(b)(1)(A)-(E), a commenter asked how the number of continuing education hours are determined. RESPONSE: The board takes into consideration national trends and guidelines. COMMENT: Concerning sec.241.10(e)(7), a commenter recommended that administrators keep their continuing education records for two years. RESPONSE: The board disagrees and has added a new paragraph (7) requiring that administrators be responsible for keeping continuing education records for a minimum of four years. COMMENT: Concerning sec.241.10(h)(2), a commenter requested that the board leave the rules as they are for administrators residing out of state, but who maintain their Texas license. RESPONSE: The board disagrees. Administrators who want to maintain their Texas license while residing out of state must accrue the 40 hours of continuing education. Flexibility will be allowed. COMMENT: Concerning sec.241.11(b)(3)(G), a commenter asked that the board define "negligent and incompetent." RESPONSE: After conferring with legal counsel, the board will define each case on an individual basis. COMMENT: Concerning sec.241.13, a commenter recommended to expunge all complaint information from an administrator's record if it is determined that the complaint is invalid. RESPONSE: Legal counsel informed the board that this was not relevant to the proposed rules. COMMENT: Concerning sec.241.13, a commenter recommended that administrator must cooperate during a complaint investigation. RESPONSE: The board, after conferring with legal counsel, stated that this was not relevant to the proposed rules. COMMENT: Concerning sec.241.13, a commenter made a recommendation that a licensee making a misstatement to a board representative/investigator would be a separate violation. RESPONSE: The board, after conferring with legal counsel, stated that this was not relevant to the proposed rules at this time. COMMENT: Concerning sec.241.13(c), a commenter requested that the response time be changed from 60 days to 10 days. RESPONSE: The board agrees and changed the response time. COMMENT: Concerning sec.241.17(b)(2), a commenter recommended to replace the term "administrative law judge" with "hearing examiner" to be consistent. RESPONSE: The board agrees and has made the change. COMMENT: Concerning sec.241.17(e)(2), a commenter recommended to delete the words "one or more parties" and replace with "the requesting party" to be consistent. RESPONSE: After conferring with legal counsel, the board decided to leave this section as proposed because in some cases administrative costs may have to be split with other relative parties. Comments were received from the following associations: Texas Health Care Association, Texas Association of Homes and Services for the Aging, McLennan Community College, various advocacy groups, licensed nursing facility administratis, and applicants for licensure. The comments from the associations, schools, advocacy groups, and both licensees and applicants, were generally in favor of the rules. The commenters were neither for nor against the rules in their entirety, however, they raised questions, offered comments for clarification, and made recommendations concerning specific provisions in the rules. Minor editorial changes were also made for clarification purposes. Chapter 241. Administrative Authority 22 TAC sec.sec.241.1-241.3 The repeals are adopted under Texas Civil Statutes, Article 4512q, which require the Texas Board of Nursing Facility Administrators to adopt rules and implement rules that are reasonably necessary for the proper performance of its duties under the Act. 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 August 31, 1995. TRD-9511030 Bobby D. Schmidt Executive Secretary Texas Board of Nursing Facility Administrators Effective date: September 21, 1995 Proposal publication date: March 3, 1995 For further information, please call: (512) 458-7236 Chapter 241. Nursing Facility Administrators 22 TAC sec.sec.241.1-241.17 The new sections are adopted under Texas Civil Statutes, Article 4512q, which require the Texas Board of Nursing Facility Administrators to adopt rules that are reasonably necessary for the proper performance of its duties under the Act. sec.241.2. The Board. (a) General introduction. (1) Purpose. The purpose of this section is to clarify the organization, administration, and other procedures and policies concerning the operation of the Texas Board of Nursing Facility Administrators (board). (2) Board. The board shall be composed of nine members who will be appointed by the Governor. Three members must be selected from the general public, and six members must be nursing facility administrators licensed under the Texas Board of Nursing Home Administrators Act (Act). In addition, there shall be two non- voting ex-officio members from the Texas Department of Human Services and the Texas Department on Aging. (3) Terms. Members of the board hold office for staggered six-year terms. Three members' terms expire February 1 of each odd numbered year. (4) Elections. At the meeting held nearest to August 31 of each year, the board shall elect a chair and vice-chair by a majority vote of members present. (5) Officers. (A) Chair. (i) The chair shall preside at all meetings at which he or she is in attendance and perform all duties prescribed by law or this chapter. (ii) The chair of the board shall make day-to-day decisions regarding subcommittee and board activities in order to facilitate the responsiveness and effectiveness of the board, as authorized by the board. (B) Vice-chair. (i) The vice-chair shall perform the duties of the chair in case of absence or disability of the chair. (ii) In case the office of chair becomes vacant, the vice-chairperson shall serve until a successor is elected. (6) Committees. The chair may appoint board members to committees to assist the board in its work. All committees appointed by the chair shall consist of no more than four members and shall make regular reports to the board by interim written reports or at regularly scheduled meetings. The committees shall direct all such reports to the executive secretary or a designee, if absent. (7) Reimbursement for expenses. No member of the board may receive compensation for serving on the board. Each member is entitled to the per diem set by the legislature for each day that the member performs functions as a member of the board. (8) Meetings. Meetings shall be announced and conducted under the provisions of the Texas Open Meetings Act. (A) Agendas. (i) The executive secretary or the executive secretary's designee shall prepare and submit to each member of the board an agenda which shall include items required by law, items requested by members, and other matters of board business which have been approved by the chair. (ii) Any member of the public wishing to be on the agenda to present or speak on a specified topic at a meeting of the board must provide a written request to the executive secretary which shall describe the topic to be addressed. The chair may limit as appropriate the times for public participation. These requests must be submitted 21 calendar days before the next regularly scheduled meeting. (B) Frequency of meetings. The board shall meet at least biannually and may meet at other times as the chair deems necessary. All meetings shall be conducted in accordance with the Texas Open Meetings Act. (C) Attendance. If a member is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during the calendar year, unless the absence is excused by majority vote of the board, a potential ground for removal from the board exists. The chair shall notify the governor that potential ground for removal exists. (D) Rules of parliamentary procedure. All official decisions made by the board shall be made according to parliamentary procedures as set forth in the latest edition of Robert's Rules of Order. (E) Transaction of official business. The board may transact official business only during a legally constituted meeting with a quorum present. Five members of the board constitute a quorum. The board shall not be bound in any way by any statement or action on the part of any board or staff member except when a statement or action is pursuant to specific instructions of the board. (F) Minutes. The minutes of a board meeting are official only when affixed with the original signatures of the chair and the executive secretary or the executive secretary's designee. (i) Drafts of the minutes of each meeting shall be forwarded to each member of the board for review and comments or corrections prior to approval by the board. (ii) The official minutes of the board meetings shall be kept in the office of the executive secretary or the executive director's designee. (b) Petition for the adoption of a rule. (1) Purpose. The purpose of this subsection is to delineate the board's procedures for the submission, consideration, and disposition of a petition to the board to adopt a rule. (2) Submission of the petition. (A) Any person may petition the board to adopt a rule. (B) The petition shall: (i) be in writing; (ii) state petitioner's name, address, and telephone number; and (iii) contain the following information: (I) a brief explanation of and justification for the proposed rule; (II) the text of the proposed rule prepared in a manner to indicate the words to be added or deleted from the current text, if any; (III) a statement of the statutory or other authority under which the proposed rule is to be promulgated; and (IV) the public benefit anticipated as a result of adopting the proposed rule or the anticipated injury or inequity which could result from the failure to adopt the proposed rule. (C) The petition shall be filed with the board office. (D) The executive secretary or the executive secretary's designee may determine that the petition does not contain the information described in subparagraph (B) of this paragraph. (3) Consideration and disposition of the petition. All initial petitions for the adoption of a rule shall be presented to and resolved by the board. (c) Executive secretary. The executive secretary of the executive secretary's designee: (1) keep the minutes and proceedings of the board and shall be custodian of the files and records unless another custodian is designated by the board; (2) shall exercise general supervision over persons employed in the administration of the Act; (3) shall be responsible for the investigation of complaints and for the presentation of formal complaints to the complaints committee; (4) shall be responsible for all correspondence for the board and obtain, assemble, or prepare reports and information that the board may direct, or as authorized or required by the department; (5) shall be responsible for assembling and evaluating materials submitted by applicants for licensure. Determinations made by the executive secretary or the executive secretary's designee that propose denial of licensure are subject to the approval of the appropriate committee of the board or the committee which shall make the final decision on the eligibility of the applicants; and (6) may serve as the administrator of licensure examinations. (d) Official records. The rules of procedure for inspection and duplication of public records contained in the Texas Open Records Act shall apply to requests received by the board. (e) Impartiality and nondiscrimination. The board shall make no decision in the discharge of its statutory authority based on to any person's race, religion, color, gender, disability, national origin, or age. An individual must be a minimum of 18 years old to apply for licensure. Any board member who is unable to be impartial in the determination of an applicant's eligibility for licensure or in a disciplinary action against a licensee shall so declare this to the committee and shall not participate in any board proceedings involving that applicant or licensee. (f) Disabled applicants. Applicants with disabilities shall inform the executive secretary or the executive secretary's designee 30 days in advance of any special accommodations needed. (g) License certificate. (1) The board shall prepare and provide to each licensee a license certificate which contains the licensee's name and license number. (2) Any license certificate or renewal card issued by the board shall remain the property of the board and must be surrendered to the board on demand. (h) Licensee roster. (1) Each year the board shall publish a roster of licensees. (2) The roster of licensees shall include, but not be limited to, the name, mailing address, current facility address (if applicable), and telephone number of current licensees. (3) The board shall make available a copy of the roster available to each current licensee(s) and provide upon request, copies to other state agencies and the general public. (i) Fees. (1) All fees are non-refundable. (2) Remittance submitted to the board in payment of fees may be in the form of a cashier's check or money order only. (3) The board has established the following fees for licenses, license renewals, and examinations and all other administrative fees under the Act. The schedule of fees shall be as follows: (A) application fee-$100; (B) Texas State Standards Examination-$150; (C) National Association of Boards of Examiners of Nursing Home Administrators, Inc. Examination fee-$125; (D) National Association of Boards of Examiners of Nursing Home Administrators, Inc. Re-examination fee-$125; (E) licensure fee-$250 (for initial license); (F) renewal fee-$250 (biennially); (G) formal inactive status fee-$250; (H) late renewal fee-$250 + half of the examination fee as set forth in subparagraph (B) of this paragraph if over 90 days cost of renewal will be the equivalent of the application fee and the examination fee; (I) late renewal fee (over 90 days)-$250 and a fee that is equal to the examination fee(s) for the license; (J) duplicate license fee-$25; (K) provisional license fee-$250; and (L) exam retest fee-$50 per examination. (4) The board shall make periodic reviews of its fee schedule and make any adjustments necessary to provide funds to meet its expenses without creating an unnecessary surplus. sec.241.3. Application Procedures. (a) Purpose. The purpose of this section is to set out the procedures for application to be a licensed nursing facility administrator. (b) General. (1) An applicant must submit all required information and documentation of credentials on official board forms. (2) The board will not consider an application as officially submitted until the applicant pays the application fee. The fee must accompany the completed application form(s) and both the completed application form(s) and fee must be received at least 30 days prior to the date that the applicant wishes to take an examination. (3) An application will become void one-year after the receipt, if the applicant has not completed all the requirements for licensure. (4) The board is not responsible for lost, misdirected, or undelivered correspondence. (c) Required application materials. Documentation listed in paragraph (1)(C)- (F) of subsection must be received in the agency office no later than five working days before the next regularly scheduled examination. This documentation may be submitted with the application and the application fee. (1) Application. The application shall be sworn, filled out completely, and contain the following: (A) specific information regarding personal data, employment history, licensure in other states; (B) a statement that the applicant has read the Act and board rules and agrees to abide by them; (C) evidence of completion of the 200-clock hour nursing facility administrator's course or its equivalent; (D) applicant's disclosure regarding the internship completed through an approved school or through the auspices of a board-certified preceptor; (E) a "Texas Criminal Conviction" report with accompanying fingerprint card; and (F) official college transcripts evidencing the minimum education requirements of a Bachelor's degree. (2) Other documents. Vita, resume, and/or other documentation of the applicant's credentials may be submitted. (3) Sworn statement. The applicant shall swear to the information provided in the application, in the space provided before a public notary. sec.241.4. Criteria for Determining Fitness of Applicants for Examination and Licensure. (a) Purpose. The purpose of this section is to set forth the criteria by which the board will determine the qualifications of an applicant for approval for examination and licensure. (b) Materials considered in determining the qualifications of applicants. In determining the fitness of applicants for examination and licensure, the board shall consider each of the following: (1) a completed application; (2) documentation from other states evidencing "out of state" licensure and any disciplinary action; (3) transcripts or findings from official court, hearing, or investigative proceedings if applicable; and (4) any other information which the board considers pertinent to determining the fitness of an applicant. sec.241.5. Academic Regulations for Examination and Licensure. (a) Purpose. The purpose of this section is to set out the academic requirements for examination and licensure as a nursing facility administrator. (b) General. (1) The minimum of a Bachelor's degree is required from an accredited college approved by an accrediting association recognized by the State of Texas Higher Education Coordinating Board. (2) The required Bachelor's degree must be either: (A) a Bachelor's degree or graduate degree in gerontology, long term care, or health care administration with coursework that includes all of the National Association of Boards of Examiners of Nursing Home Administrators, Inc. domains as follows: (i) residents rights; (ii) resident care management; (iii) personnel management; (iv) financial management; (v) environmental management; (vi) regulatory management; and (vii) organizational management; or (B) a Bachelor's degree or graduate degree in any subject, plus additional coursework equivalent to the 200-clock hour, board-approved nursing facility administrator's course. (3) A minimum of 1,000 hours of internship must be served in a nursing facility licensed for 60-beds or more regardless of the degree obtained. (4) Degrees and coursework received at foreign universities shall be acceptable only if such coursework is counted as transfer credit by accredited universities as reported by the American Association of Collegiate Registrars and Admissions Officers. If degrees or coursework cannot be documented because the foreign university refuses to issue a transcript or other evidence including degrees or coursework based on approved documentation which evidence the minimum educational requirement presented by the foreign applicant, then the applicant forfeits the original application and must submit a new application with the proper transcripts or transcript evaluation. (c) Licensure examination requirements. (1) Frequency. The Texas Board of Nursing Facility Administrators will give the Texas State Standards Examination and the National Board of Examiners for Nursing Facility Administrators, Inc., Examination four times a year as follows: (A) January; (B) April; (C) July; and (D) October. (2) Notification for eligibility for examinations. An applicant will be notified of eligibility for examination. (3) Examination. A person may apply to take the examination after he or she has: (A) submitted the necessary forms, fees, and application in accordance with sec.241.3 of this title (relating to Application Procedures); and (B) submitted the supporting documents evidencing completion of the required internship, coursework, and/or approved degree, as specified under this section. sec.241.6. Administrators-In-Training. (a) Purpose. The purpose of this section is to set out the internship and/or practicum(s) requirements for examination and licensure as a nursing facility administrator. (b) General. Internships will be a minimum of six months in length and 1,000 hours served under the auspices of a board-approved preceptor or through a board-approved college program. (1) An applicant may train for a minimum of one hour per day, maximum 40 hours per week. (2) The internship must be conducted in a minimum 60-bed or larger licensed facility. (3) An Administrator-in-Training (AIT) may not act or sign as the administrator in any way. (c) Preceptor qualifications and responsibilities. (1) All applicants for preceptor approval must have an active license in good standing. (2) An administrator desiring to obtain a preceptor approval certificate must have at least five year's experience as a nursing facility administrator, with the two most recent years in Texas. (3) A preceptor certificate will be issued to a qualified nursing facility administrator by the board upon completion of the board approved preceptor seminar. This certificate will be valid for two years from issuance date. (4) The procedure for denial of preceptor status is as follows. (A) The board may refuse to renew preceptor certificates or to approve preceptors for training AIT's if the preceptor has failed to provide proper training regarding former AIT's previously assigned to the preceptor. (B) Disciplinary action taken by the board against an administrator may be grounds for refusal to grant a preceptor's certificate. (5) Special permission from the board will be required before the supervision and training of more than two AIT's by one preceptor. (6) A preceptor shall be responsible for the training of the AIT. The preceptor must ensure that all training provided is in compliance with this chapter, and the Act. (7) The certified preceptor must submit a written notification of termination or completion of internship to the board within ten days of when training has ceased. The board notification of termination or completion shall include: (A) the name, license number, signature of the preceptor, and the name of the AIT; (B) the reason for termination; (C) the date of termination of training; and (D) a statement indicating whether the preceptor and the AIT have complied with the requirements of this section, in accordance with sec.241.3(c) of this title (relating to Application Procedures). sec.241.9. License Renewal and Inactive Status. (a) Purpose. The purpose of this section is to set out rules governing licensure renewal and inactive status of a licensed nursing facility administrator. (b) General. (1) A licensed administrator must renew his or her license every two years (biennially). (2) Each licensed administrator is responsible for renewing licensure and paying the renewal fee as set out in sec.241.2(i) of this title (relating to The Board) on or before the expiration date. (3) No administrator shall be exempt from paying the late renewal fee after the expiration date of the license. (4) The board shall deny the renewal of a license of an administrator who is in violation of the Act or this chapter at the time of the application for renewal. (5) A licensed administrator must have fulfilled the continuing education requirements prescribed by sec.241.10 of this title (relating to Continuing Education Requirements) in order to renew licensure. (6) The deadlines established for renewals, and late renewal fees in this section are based on the postmark date of the documentation submitted by the licensee, if legible. If not, the "date received" by this agency shall be the date considered in determining whether deadlines have been met. (7) A licensed administrator whose license is not renewed due to failure to meet all requirements for licensure renewal shall return his or her license certificate to the board and shall not misrepresent himself or herself as a licensed administrator in any manner. (c) License renewal. (1) At least 30 days prior to the expiration of a regular license, the board will send notice to a licensee that includes the expiration date of the license, a schedule of the renewal and late fees, and the number of hours needed to complete any continuing education hours. (2) The license renewal form shall require the licensee to provide current information, such as, continuing education completed, and the current mailing address and daytime phone number of the licensee. (3) The board shall not consider a license to be renewed until it has received the completed renewal form, required fee, and documentation of applicable and sufficient continuing education. (4) The biennial renewal date of a license shall be the last day of the licensee's birth month. (5) The board shall issue a renewal card to a licensee who has met all the requirements for renewal before license expiration. (6) The license of a person who makes a timely request for his or her license renewal does not expire until the application for renewal is finally determined by the board. In case the application is denied or the terms of the new license are limited, the prior license remains valid until the last day for seeking review of the board's order or a later date fixed by the order. (7) The board will not process the licensure renewal of a licensee who is a party to formal license disciplinary proceedings, until such proceedings has been concluded. A disciplinary proceeding commences when the notice described in sec.241.11(b) of this title (relating to Adverse Licensure Actions) is mailed by the board. (A) A licensee whose license is not revoked or suspended as a result of disciplinary proceedings shall be renewed provided that all other requirements are met. (B) In the case of delay in the licensure renewal process because of formal disciplinary proceedings, late renewal penalty fees shall not apply. (8) The board is not responsible for lost, misdirected, or undelivered correspondence if sent to the last address reported to board. (9) The board shall deny renewal if required by the Education Code, sec.57.491, relating to defaults on guaranteed student loans. (d) Late renewal. (1) A person who renews a license after the expiration date but on or within 90 days after the expiration date shall pay the renewal fee plus one-half the examination fee set out in sec.241.2(i) of this title. If a license has been expired for 90 days but less than one year, renewal of the license may be accomplished by paying to the board the renewal fee and a fee that is equal to the examination fee for licensure. (2) A person, whose license was not renewed within one year of the expiration date, may obtain a new license by submitting to re-examination and complying with the requirements and procedures for obtaining an original license set out in this chapter. (3) The board may renew without re-examination an expired license of a person who was licensed in this state, then moved to another state, and is currently licensed and has been in practice in the other state for two years preceding application for renewal. That person must pay to the board a fee that is equal to the examination fee for the license. (e) Inactive status. If a licensee wishes to be placed on inactive status, the request must be submitted on the required agency form on or before the expiration date. A licensee may only request to be placed on inactive status for two renewal periods. A licensee must reactivate his or her license on or before the expiration date, and must: (1) pay the renewal fee as stated in sec.241.2(h) of this title (relating to the Board); (2) complete required continuing education; (3) take and pass the Texas State Standards Exam; and (4) renew within the current inactive license period. (f) Surrender of license. (1) Surrender of license. A licensee may at any time voluntarily offer to surrender his or her license for any reason. (2) Acceptance by the board. (A) The board shall decide whether to formally accept the voluntary surrender of a license. (B) Surrender of a license without the acceptance of the board, or a licensee's failure to renew the license shall not deprive the board of jurisdiction against the licensee under this Act or any other statute. (3) Formal disciplinary action. When a licensee has offered the surrender of his or her license after a complaint has been filed alleging violations of the Act or this chapter, and the board has accepted such a surrender, that surrender is deemed to be the result of a formal disciplinary action. (4) Reinstatement. A license which has been surrendered and accepted may not be reinstated; however, a person may apply for a new license within five years after the date of the acceptance of the surrender of the license in accordance with the Act and this chapter. sec.241.10. Continuing Education Requirements. (a) Purpose. The purpose of this section is to establish the continuing education requirements for the renewal of licensure which a licensed nursing facility administrator must complete bi-annually. These requirements are intended to maintain and improve the quality of professional services in nursing facility administration provided to the resident and public and keep the licensed nursing facility administrator knowledgeable of current research, techniques, and practice and to provide other resources which will improve skill and competence in nursing facility administration. Continuing education hours must be relevant to nursing facility administration. All licensees are required to complete during each licensure period continuing education of an amount and type designated and approved by the board. (b) Required continuing education hours. (1) A licensee shall complete a minimum of 40 clock hours of continuing education every two years in the following categories: (A) six hours in regulatory changes; (B) six hours in management theory; (C) six hours in ethics; (D) six additional hours in any of the approved courses listed in subparagraphs (A)-(C) of this paragraph; (E) 16 hours (maximum) of alternative education offerings in any related field or approved category; these include college credit, precepting of an Administrator-in-Training, audio/visual offerings, home study, and other approved continuing education courses; and (F) no more than one-half of the required continuing education requirements may be obtained from the precepting of an Administrator-in-Training (AIT). (2) Deadlines. Continuing education requirements for renewal shall begin on the first day of a licensee's renewal period and end on the last day of the licensee's renewal period. (c) Hour requirements for continuing education. Both half-hour (30 minutes) and one-hour (60 minutes) increments of attendance and participation in an approved continuing education experience are acceptable. Continuing education experiences acceptable to the board are set forth in subsection (e) of this section. (d) Types of acceptable continuing education. Continuing education undertaken by a licensee shall be acceptable if the experience falls in one or more of the following categories: (1) with prior approval, participation in those sections of programs (e.g., institutes, seminars, workshops, and conferences) which employ didactic and experiential methods to increase skill and competence in nursing facility administration by persons who hold licensure granted by the board or an equivalent nursing facility administrator board in another state; (2) participation in those sections of programs (e.g., institutes, seminars, workshops, and conferences) which are designed to increase professional knowledge related to the practice of licensed nursing facility administration and are conducted by persons qualified within their respective professions; (3) attendance at seminars and/or workshops which have received prior approval from the board. Credit will be awarded as approved by the board; (4) completion of the training of an AIT. Credit will be awarded only to the preceptor of record; (5) instruction of courses in subject areas outlined in subsection (b) of this section in an institution of higher education. Any person who instructs approved seminars and/or workshop or instructs in programs given by the board shall receive the same credit as participants in the program. Credit will be given only one time per renewal period for same subject matter; and (6) completion of academic courses in areas supporting development of skill and competence in nursing facility administration at an accredited college or university. (e) Phase in period. Nursing facility administrators shall be permitted license renewal until December 1996 by accomplishing a minimum of 24 contact hours of which six shall be in Texas regulatory changes, and six shall be in management theory, and 12 hours shall be in any approved subject relating to nursing home administration. (f) Approval of programs. Criteria for approval of programs is based on: (1) relevance of the subject matter to increase or support the development of skill and competence in nursing facility administration or in areas of study or disciplines related to nursing facility administration; (2) objectives of specific information and skills to be learned; (3) subject matter, educational methods, materials and facilities utilized including the frequency and duration of the sessions and the adequacy to implement learner objectives; and (4) evidence of attendance of approved programs will be in accordance with sec.241.9 of this title (relating to License Renewal and Inactive Status). (g) Determination of clock hour credits. The board shall credit continuing education. On a one-for-one basis with one clock hour credit for each clock-hour spent in an approved continuing education activity. (h) Submittal of continuing education. (1) Continuing education units of no less 40 hours must be reported by the licensee on or before the date of the expiration of the license, or within the 90-day grace period. These hours shall be reported on forms provided by the board. These individual lists will be matched against sign-in sheets submitted by the board approved continuing education sponsors. The board shall conduct a random audit requesting documentation of continuing education. Individual continuing education certificates of attendance shall not be submitted unless the licensee is requested to do so by the board. Failure to provide evidence of completion of continuing education by a licensee is subject to non-renewal and grounds for disciplinary action. (2) In the event a nursing facility administrator moves out of state, the license may be maintained through submission of proof of required continuing education and payment of the required fee(s). (i) Records. Continuing education records shall be kept as follows. (1) Provider. (A) Records of programs shall be kept by the approved sponsor for a minimum of five years from the date of completion. (B) Records shall include target audience, program planning materials, content, objectives, outline of instructor qualifications, teaching methods and materials, evaluation tools and summary, alphabetical listing of participants, Texas nursing facility license number. (C) The provider shall furnish each participant a record of attendance specifying the provider, title, date, location of the program, number of contact hours, and organization granting approval, if applicable. This record shall be kept by the nursing facility administrator for a minimum of four years from the date of completion. (2) Licensee. The nursing facility administrator licensee shall retain records of continuing education hours earned for a minimum of four years from the date of completion. sec.241.11. Adverse Licensure Actions. (a) Purpose. The purpose of this section is to set forth the possible causes for revocation, suspension, refusal to renew, issuance of a written reprimand, requirement for additional continuing education, or placement on probation concerning a nursing facility administrators's license and the procedures for notification of adverse licensure action as set forth in sec.241.13 of this title (relating to Complaints Procedures), for filing complaints of statutory or rule violations. (b) Violations. (1) The board shall disapprove a renewal of a license if the licensee does not meet the criteria set out in the Act and the board rules. (2) The board may initiate sanctions under subsection (d) of this subsection herein on any of the following grounds: (A) the license holder has wilfully or repeatedly violated a provision of the Act or a rule adopted under the Act; (B) the license holder has wilfully or repeatedly acted in a manner inconsistent with the health and safety of the residents of a facility of which the license holder is an administrator; (C) the license holder obtained or attempted to obtain a license through misrepresentation or deceit or by making a material misstatement of fact on a license application; (D) the intemperate use of alcohol or drugs by the license holder creates a hazard to the residents of a facility; (E) a judgement of a court of competent jurisdiction finding that the licensee is mentally incapacitated; (F) the license holder has been convicted in a court of competent jurisdiction of a misdemeanor or felony involving moral turpitude; or (G) the license holder has been negligent or incompetent in the license holder's duties as a nursing facility administrator. (c) Opportunity for a hearing. Prior to revocation, suspension, refusal to renew, issuance of a written reprimand, requirement for additional continuing education, or placement on probation of a nursing facility administrator's license the board shall give the licensee the opportunities for a formal hearing in accordance with the APA, and sec.241.17 of this title (relating to Formal Hearing Procedures). (d) Procedures for adverse licensure action. (1) The board's executive secretary or the executive secretary's designee will give written notice of the opportunity for a hearing to the licensee in accordance with the provisions of the APA, and the board's hearing procedures in sec.241.17 of this title. (2) If the board initiates adverse licensure action, the executive secretary or the executive secretary's designee will give that licensee written notice of the reason(s) for the decision. sec.241.13. Complaint Procedures. (a) A person wishing to report a complaint against a licensee shall notify the executive secretary or the executive secretary's designee of the Texas Board of Nursing Facility Administrators, 1100 West 49th Street, Austin, Texas 78756- 3183, or by calling 1-800-942-5540 (for complaints only). The initial notification of a complaint may be submitted in writing, by telephone, or by a personal visit to the board office. (b) Upon receipt of a complaint, the executive secretary or the executive secretary's designee will send to the complainant an official form(s) which the complainant will be requested to complete and return to the board office. (c) Upon receipt of a complaint, as defined in these rules or the Act, the executive secretary or the executive secretary's designee shall notify the licensee of the complaint and request a written response within ten days. (d) The executive secretary or the executive secretary's designee shall collect all information related to the complaint. The chair shall appoint a complaints committee of no more than three persons to review the complaint and the supporting documentation to determine if there is sufficient evidence to suggest further investigation or other legal procedures. (e) The executive secretary or the executive secretary's designee shall keep an information file about each complaint which shall include the following information: (1) all persons contacted in relation to the complaint; (2) a summary of findings made at each step of the complaint process; (3) an explanation of the legal basis and reason for a complaint that is dismissed; or substantiated; and (4) other relevant information. (f) The executive secretary or the executive secretary's designee shall notify all parties of the status of the complaint on a quarterly basis until the complaint is resolved. (g) The committee may request further investigation of the complaint. After investigation has been completed, the person completing the investigation shall submit his or her findings to the committee and the executive secretary or the executive director's designee. The written investigative report shall set out all facts obtained during the investigation. (h) If the committee determines that there are insufficient grounds to support or act upon the complaint, the committee may dismiss the complaint and give written notice of the dismissal to the complainant and the licensee or person against whom the complaint has been filed. (i) If the committee determines that there are sufficient grounds to support the complaint, the committee may initiate adverse licensure action or any other action as authorized by law. sec.241.16. Criteria for Licensing of Persons with Criminal Backgrounds. (a) Purpose. The purpose of this section is to establish guidelines and criteria on the eligibility of persons with criminal backgrounds to obtain licenses as administrators. (b) Criminal conviction. The board shall consider a conviction of a nursing facility administrator for a felony or misdemeanor involving moral turpitude as possible grounds for the suspension or revocation of the nursing facility administrator's license and shall review the conviction. (1) The board may suspend or revoke an existing license, disqualify a person from receiving or renewing a license, or deny a person the opportunity to be examined for a license because of a person's conviction of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a nursing facility administrator and if the crime involves moral turpitude. (2) In considering whether a criminal conviction directly relates to the duties and responsibilities of a nursing facility administrator, the board shall consider: (A) the nature and seriousness of the crime; (B) the relationship of the crime to the ability, capacity or fitness required to perform the duties and discharge the responsibilities of a nursing facility administration. If the felonies or misdemeanors are violations of federal law, law of another state, or law of another nation and are similar to those listed in clauses (i) and (ii) of this subparagraph then they are also possible grounds for suspending, probating, failing to renew, reprimand, or requiring additional continuing education. The following felonies and misdemeanors relate to the license of a nursing facility administrator because these criminal offenses indicate a possible inability or a tendency to be unable to perform adequately and responsibly as a nursing facility administrator: (i) the misdemeanor of knowingly or intentionally acting as a nursing facility administrator without a license; and (ii) a misdemeanor and/or a felony offense under the following chapters of the Texas Penal Code: (I) Title 5, which relates to offenses against the person similar to the types of crimes listed in subclauses (I)-(V) of this clause, they shall also be considered to relate to the duties and responsibilities of a nursing facility administrator; (II) Title 7, which relates to offenses against property; (III) Title 9, which relates to offenses against public order and decency; (IV) Title 10, which relates to offenses against public health, safety, and morals; and (V) Title 4, which relates to offenses of attempting or conspiring to commit any of the offenses in subclauses (I)-(IV) of this clause. (C) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person had previously been involved; and (D) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of a nursing facility administrator. In making this determination, the board will apply the criteria outlined in Texas Civil Statutes, Article 6252-13c, sec.4(c)(1)-(7). (3) The misdemeanors and felonies listed in paragraph (2)(b)(i) and (ii) of this subsection are not inclusive in that the board may consider other particular crimes. 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 August 31, 1995. TRD-9511038 Bobby D. Schmidt Executive Secretary Texas Board of Nursing Facility Administrators Effective date: September 21, 1995 Proposal publication date: March 3, 1995 For further information, please call: (512) 458-7236 Chapter 243. Application 22 TAC sec.sec.243.1-243.5 The Texas Board of Nursing Facility Administrators adopts the repeal of sec.sec.243.1-243.5, concerning applications procedures, denial of applications, waivers, administrators-in-training, and preceptorial qualifications and procedures for nursing home administrators, without changes to the proposed text as published in the March 3, 1995, issue of the Texas Register (20 TexReg 1499). The repeals will remove obsolete rules. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 4512q, which require the Texas Board of Nursing Facility Administrators to adopt rules that are reasonably necessary for the proper performance of its duties under the Act. 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 August 31, 1995. TRD-9511031 Bobby D. Schmidt Executive Secretary Texas Board of Nursing Facility Administrators Effective date: September 21, 1995 Proposal publication date: March 3, 1995 For further information, please call: (512) 458-7236 Chapter 245. Examination 22 TAC sec.sec.245.1-245.6 The Texas Board of Nursing Facility Administrators adopts the repeal of sec.sec.245.1-245.6, concerning scheduling of examinations and reexaminations, pre-examination requirements, licensure requirements, conditional admission to examination; disqualification; reexamination, subjects for examination, and grading of examinations, without changes to the proposed text as published in the March 3, 1995, issue of the Texas Register (20 TexReg 1499). The repeals will remove obsolete rules. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 4512q, which require the Texas Board of Nursing Facility Administrators to adopt rules that are reasonably necessary for the proper performance of its duties under the Act. 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 August 31, 1995. TRD-9511032 Bobby D. Schmidt Executive Secretary Texas Board of Nursing Facility Administrators Effective date: September 21, 1995 Proposal publication date: March 3, 1995 For further information, please call: (512) 458-7236 Chapter 247. Continuing Education 22 TAC sec.sec.247.1-247.5 The Texas Board of Nursing Facility Administrators adopts the repeal of sec.sec.247.1-247.5, concerning registration of educational programs, minimum education requirements, college courses/programs of study, continuing education, certification of programs of study for federal financial participation, without changes to the proposed text as published in the March 3, 1995, issue of the Texas Register (20 TexReg 1500). The repeals will remove obsolete rules. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 4512q, which require the Texas Board of Nursing Facility Administrators to adopt rules that are reasonably necessary for the proper performance of its duties under the Act. 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 August 31, 1995. TRD-9511033 Bobby D. Schmidt Executive Secretary Texas Board of Nursing Facility Administrators Effective date: September 21, 1995 Proposal publication date: March 3, 1995 For further information, please call: (512) 458-7236 Chapter 249. License Certificates 22 TAC sec.sec.249.1-249.4 The Texas Board of Nursing Facility Administrators adopts the repeal of sec.sec.249.1-249.4, concerning display of licenses and renewal cards, duplicate licenses, license renewals, and inactive status, without changes to the proposed text as published in the March 3, 1995, issue of the Texas Register (20 TexReg 1500). The repeals will remove obsolete rules. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 4512q, which require the Texas Board of Nursing Facility Administrators to adopt rules that are reasonably necessary for the proper performance of its duties under the Act. 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 August 31, 1995. TRD-9511034 Bobby D. Schmidt Executive Secretary Texas Board of Nursing Facility Administrators Effective date: September 21, 1995 Proposal publication date: March 3, 1995 For further information, please call: (512) 458-7236 Chapter 251. Disciplinary 22 TAC sec.sec.251.1-251.5 The Texas Board of Nursing Facility Administrators adopts the repeal of sec.sec.251.1-251.5, concerning prehearing conferences, consolidation, hearing officer procedures, Department of Public Safety information, and special fees for expert witnesses, without changes to the proposed text as published in the March 3, 1995, issue of the Texas Register (20 TexReg 1500). The repeals will remove obsolete rules. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 4512q, which require the Texas Board of Nursing Facility Administrators to adopt rules that are reasonably necessary for the proper performance of its duties under the Act. 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 August 31, 1995. TRD-9511035 Bobby D. Schmidt Executive Secretary Texas Board of Nursing Facility Administrators Effective date: September 21, 1995 Proposal publication date: March 3, 1995 For further information, please call: (512) 458-7236 Chapter 253. Complaint Procedures 22 TAC sec.sec.253.1-253.4 The Texas Board of Nursing Facility Administrators adopts the repeal of sec.sec.253.1-253.4, concerning initiation of investigations, acknowledgment, filing of formal complaints, and information files, without changes to the proposed text as published in the March 3, 1995, issue of the Texas Register (20 TexReg 1501). The repeals will remove obsolete rules. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 4512q, which require the Texas Board of Nursing Facility Administrators to adopt rules that are reasonably necessary for the proper performance of its duties under the Act. 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 August 31, 1995. TRD-9511036 Bobby D. Schmidt Executive Secretary Texas Board of Nursing Facility Administrators Effective date: September 21, 1995 Proposal publication date: March 3, 1995 For further information, please call: (512) 458-7236 Chapter 255. Public Comment 22 TAC sec.255.1, sec.255.2 The Texas Board of Nursing Facility Administrators adopts the repeal of sec.255.1 and sec.255.2, concerning public hearing policies and procedures and committee and board meetings, without changes to the proposed text as published in the March 3, 1995, issue of the Texas Register (20 TexReg 1501). The repeals will remove obsolete rules. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 4512q, which require the Texas Board of Nursing Facility Administrators to adopt rules that are reasonably necessary for the proper performance of its duties under the Act. 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 August 31, 1995. TRD-9511037 Bobby D. Schmidt Executive Secretary Texas Board of Nursing Facility Administrators Effective date: September 21, 1995 Proposal publication date: March 3, 1995 For further information, please call: (512) 458-7236 Part XXII. Texas State Board of Public Accountancy Chapter 505. The Board Board Committees 22 TAC sec.505.10 The Texas State Board of Public Accountancy adopts an amendment to sec.505. 10, without changes to the proposed text as published in the July 18, 1995, issue of the Texas Register (20 TexReg 5128). The amendment allows the agency to save monies and to stay within budgetary constraints. The amendment will function by transferring two committees' functions to other committees and abolishing the two committees. No comments were received concerning adoption of the rule. The amendment is adopted under Texas Civil Statutes, Article 41a-1, Section 6, which provides 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. 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 August 24, 1995. TRD-9511062 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: September 21, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 505-5566 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 81. Administrative Provisions 37 TAC sec.81.2 The Texas Youth Commission (TYC) adopts new sec.81.2, concerning public and media, without changes to the proposed text as published in the May 23, 1995, issue of the Texas Register (20 TexReg 3824). The justification for the new section is for TYC to have clear rules governing communication between TYC youth and employees and the general public. The new section will provide guidelines for TYC employee communication with the general public and media with specific limitations on media access to TYC youth and youth to media. Limitations are based on youth confidentiality requirements. No comments were received regarding adoption of the new rule. The new rule is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. The proposed rule implements the Human Resource Code, sec.61.034. 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 August 30, 1995. TRD-9510974 Steve Robinson Executive Director Texas Youth Commission Effective date: September 20, 1995 Proposal publication date: May 23, 1995 For further information, please call: (512) 483-5244 Part XIII. Texas Commission on Fire Protection Chapter 520. Testing Laboratory Rules 37 TAC sec.520.5, sec.520.7 The Texas Commission on Fire Protection adopts amendments to sec.520.5 and sec.520.7, concerning testing laboratory rules, without changes to the proposed text as published in the May 16, 1995, issue of the Texas Register (20 TexReg 3652). The justification for this section is that the Texas Commission on Fire Protection will experience a substantial savings of its resources by avoiding duplicating procedures which would be expended in reviewing testing laboratory applications and on-site inspection of facilities throughout the country already performed by the federal government (OSHA). The amendment to sec.520.5 provides clarification by deleting the definition of "Board" and inserting the definition of "Commission" to conform with the commission's authority to make rule changes for this chapter. The amendment to sec.520.7(h) adds wording related to an alternative method of securing acceptance as an approved testing laboratory. One person from the National Fire Protection Association who is also a member of the board of directors for Underwriters Laboratory commented on the proposed amendments. He noted that not all OSHA approved national testing laboratories will test each component within a fire protection system. The commission felt that this matter was not of significance. The amendments are adopted under Texas Insurance Code, Articles 5.43-1, 5. 43- 2, and 5.43-3, Chapter 417, Texas Government Code and Chapter 419, Texas Government Code. 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 August 30, 1995. TRD-9511007 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: September 20, 1995 Proposal publication date: May 16, 1995 For further information, please call: (512) 918-7184 Chapter 521. Fire Extinguisher Rules 37 TAC sec.sec.521.1, 521.6-521.9, 521.16, 521.17, 521.19, 521.25 The Texas Commission on Fire Protection adopts amendments to sec.sec.521.1, 521.6-521.9, 521.16, 521.17, 521.19, and 521.25, concerning regulation of the business of inspecting, planning, certifying, leasing, selling, servicing, testing, installing, and maintaining fire extinguishers or fire extinguishing devices and systems, without changes to the proposed text as published in the May 16, 1995, issue of the Texas Register (20 TexReg 3653). The justification for this section is that with the adoption of the proposed changes to the existing testing laboratory rules, the Texas Commission on Fire Protection will experience a substantial savings of its resources by avoiding duplicating procedures which would be expended in reviewing testing laboratory applications and on-site inspection of facilities throughout the country already performed by the federal government (OSHA). The amendments to sec.sec.521.1, 521.6, 521.7, 521.9, 521.16, 521.17, 521.19, and 521.25 change the reference to "State Board of Insurance" or "board" to "Texas Commission on Fire Protection" or "commission" to conform with the commission's authority to make rule changes for this chapter. The amendment to sec.521.8 changes wording to allow approval of an organization as an approved testing laboratory, if the organization meets the requirements of an approved testing laboratory as set forth in 37 TAC Chapter 520. One person from the National Fire Protection Association who is also a member of the board of directors for Underwriters Laboratory commented on the proposed amendments. He noted that not all OSHA approved national testing laboratories will test each component within a fire protection system. The commission felt that this matter was not of significance. The amendments are adopted under Texas Insurance Code, Article 5.43-1, sec.sec.2A, 8, and 9 which provide the Texas Commission on Fire Protection with the authority to adopt rules necessary for the protection and preservation of life and property in controlling the requirements for the installation or servicing of portable fire extinguishers and the planning, certifying, installing, or servicing of fixed fire extinguisher systems. 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 August 30, 1995. TRD-9511008 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: September 20, 1995 Proposal publication date: May 16, 1995 For further information, please call: (512) 918-7184 Chapter 531. Fire Alarm Rules 37 TAC sec.531.8 The Texas Commission on Fire Protection adopts an amendment to sec.531.8, concerning regulation of the business of inspecting, planning, certifying, leasing, selling, servicing, testing, installing, monitoring, and maintaining fire alarm or fire detection devices and systems, without changes to the proposed text as published in the May 16, 1995, issue of the Texas Register (20 TexReg 3654). The justification for this section is that the Texas Commission on Fire Protection will experience a substantial savings of its resources by avoiding duplicating procedures which would be expended in reviewing testing laboratory applications and on-site inspection of facilities throughout the country already performed by the federal government (OSHA). The amendments to sec.531.8 change wording to allow approval of an organization as an approved testing laboratory, if the organization meets the requirements of an approved testing laboratory as set forth in 37 TAC Chapter 520. One person from the National Fire Protection Association who is also a member of the board of directors for Underwriters Laboratory commented on the proposed amendments. He noted that not all OSHA approved national testing laboratories will test each component within a fire protection system. The commission felt that this matter was not of significance. The amendment is adopted under Texas Insurance Code, Article 5.43-2, sec.sec.4, 4A, and 6, which provide the Texas Commission on Fire Protection with the authority to adopt rules necessary to its administration through the state fire marshal for the protection and preservation of life and property in controlling the requirements for planning, certifying, leasing, selling, servicing, installing, monitoring, or maintaining of fire alarms or fire detection devices or systems. 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 August 30, 1995. TRD-9511009 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: September 20, 1995 Proposal publication date: May 16, 1995 For further information, please call: (512) 918-7184 Chapter 541. Sprinkler Rules 37 TAC sec.sec.541.6-541.9, 541.13 The Texas Commission on Fire Protection adopts amendments to sec.sec.541. 6- 541.9, and 541.13, concerning regulation of the business of inspecting, planning, selling, servicing, installing and maintaining fire protection sprinkler systems, without changes to the proposed text as published in the May 16, 1995, issue of the Texas Register (20 TexReg 3654). The justification for this section is that the Texas Commission on Fire Protection will experience a substantial savings of its resources by avoiding duplicating procedures which would be expended in reviewing testing laboratory applications and on-site inspection of facilities throughout the country already performed by the federal government (OSHA). The amendment to sec.541.6 adds the definition of "commission". The amendment to sec.541.7 adopts NFPA 13R, 1994, Standard for the Installation of Sprinkler Systems in Residential Occupancies up to and Including Four Stories in Height. It also adopts NFPA 231F, 1987, Standard for the Storage of Roll Paper. The amendments to sec.541.8 changes wording to allow approval of an organization as an approved testing laboratory, if the organization meets the requirements of an approved testing laboratory as set forth in 37 TAC Chapter 520. The amendments to sec.541.9 change wording to conform with the commission's authority to make rule changes for this chapter. Finally, the amendment to sec.541.13(a)(7)(F) deletes wording to correct a typographical error. One person from the National Fire Protection Association who is also a member of the board of directors for Underwriters Laboratory commented on the proposed amendments. He noted that not all OSHA approved national testing laboratories will test each component within a fire protection system. The commission felt that this matter was not of significance. The amendments are adopted under Texas Insurance Code, Article 5.43-3, sec.sec.3, 3A, and 7, which provide the Texas Commission on Fire Protection with the authority to adopt rules necessary to its administration through the state fire marshal for the protection and preservation of life and property. 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 August 30, 1995. TRD-9511010 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: September 20, 1995 Proposal publication date: May 16, 1995 For further information, please call: (512) 918-7184 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 12. Special Nutrition Programs Child and Adult Care Food Program 40 TAC sec.sec.12.19, 12.24, 12.25 The Texas Department of Human Services (DHS) adopts amendments to sec.sec.12. 19, 12.24, and 12.25 in its Special Nutrition Programs chapter. The amendments to sec.sec.12.19 and 12.24 are adopted with changes to the proposed text as published in the June 16, 1995, issue of the Texas Register (20 TexReg 4402). The amendment to sec.12.25 is adopted without changes to the proposed text and will not be republished. The justification for the amendments is to require Child and Adult Care Food Program (CACFP) sponsors to: (1) increase by one the number of reviews required for each day care home provider each year; (2) conduct a minimum of three reviews without prior notification: and (3) verify the participation of children in the CACFP by contacting family members of the children. The amendments will also improve the oversight and accountability of the day care home portion of the CACFP to safeguard the integrity of the program. The amendments will function by improving program efficiency and increasing program integrity. During the comment period, DHS received written comments from the Texas Child and Adult Care Food Program Sponsors Association; Association for Children's Nutritional Growth; Nutriservice, Inc.; Nutri-Care, Inc.; CareNetwork; Southwest Human Development Services; and several individuals. DHS also received comments at the April 21, 1995, and July 21, 1995, meetings of the Board of Human Services. A summary of the comments and DHS's responses follow: Comment concerning: sec.12.19(c): Overall, commenters supported requiring unannounced monitoring visits and opposed requiring four monitor visits each 12 months. Several commenters expressed concern that a requirement to monitor all day care home providers each 12 months would result in the diversion of resources from day care home providers needing additional assistance and oversight to those that had demonstrated an ability and willingness to comply with program requirements. Commenters also raised concerns about the impact of the cost of conducting additional reviews on their ability to administer a quality program. Commenters suggested that an additional visit would not be an effective tool in detecting fraud. One commenter suggested that only three monitor visits be required with any two of those unannounced. One commenter indicated that the requirement to conduct an unannounced follow-up review within two weeks after a visit at which program participation cannot be confirmed does not provide sponsors with the time or flexibility to take appropriate action. Response: DHS agrees that the potential benefit of four visits does not justify the reallocation of program resources. DHS disagrees that two unannounced visits are sufficient. DHS also disagrees that requiring a follow-up visit within two weeks after an initial visit at which program participation cannot be confirmed does not provide sponsors with the time or flexibility to take appropriate action. DHS also disagrees that a follow-up review of a home at which program participation cannot be confirmed may expend program funds without sufficient justification. Therefore DHS adopts sec.12. 19(c) and (e) with changes related to the requirement that sponsors conduct a minimum of three unannounced monitoring visits each 12 months. Comment concerning sec.12.19(d): Commenters suggested that we reconsider our sampling methodology to provide for a smaller sampling size for day care home providers, and family contact for all children enrolled in each day care home selected. One commenter suggested that parent contact to verify participation in the program raises child safety concerns among parents and that parents will not be motivated to cooperate with sponsors to confirm the participation of their children in the CACFP. Another commenter suggested that guidance will be necessary in certain situations. Response: DHS agrees that a random sample of 25% with only two families contacted per day care home will not provide the information sought to manage the program. DHS has consulted with its internal audit section to devise a more appropriate sampling methodology. DHS believes that if day care home providers inform the parents of children in their care that they participate in the CACFP and that they should expect to be contacted to verify their child's participation in the program, the parents will cooperate. DHS will provide the necessary guidance to facilitate this policy. Therefore, DHS adopts sec.12.19(d) with changes to provide for a sampling size of 10% of each sponsors' day care homes to be selected by DHS each year, and with verification to be conducted by the sponsor of 100% of the children participating in the program in the selected homes. Comment concerning sec.12.24(f): A commenter suggested that sponsors be given the latitude to terminate the participation of a day care home provider in the CACFP if conditions exist where a corrective action plan would be inappropriate. Response: DHS agrees that certain conditions may exist where the establishment of a corrective action plan is inappropriate. Therefore, DHS will adopt sec.12.24(f) with changes to accommodate such situations. Comment concerning sec.12.25(f): A commenter suggested that the language be modified to allow greater flexibility with regard to the sources of information a sponsor may act on relating to actions taken against day care home providers who submit false claims. Response: DHS agrees that sponsors should be allowed to rely on information obtained from sources external to their organization. However, DHS does not believe that the language of sec.12.25(f) restricts the sources of information upon which a sponsor may rely in determining if a day care home provider has submitted false claims. Therefore, DHS adopts sec.12.25(f) without change. The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. The amendments implement the Human Resources Code, sec. sec.22.001-22.024 and sec.sec.33.001-33.024. sec.12.19. Program Reviews. (a) Contractors must monitor their program operations and conduct administrative reviews according to 7 Code of Federal Regulations sec.sec.226.15 and 226.16. The Texas Department of Human Services (DHS) does not use the averaging option described in 7 Code of Federal Regulations sec.226.16(d)(4)(ii). (b) Contractors that sponsor day homes conduct their reviews of day home providers according to 7 Code of Federal Regulations sec.226.16 and this chapter. (c) Day home sponsoring organizations must conduct at least three monitoring reviews of each of their day care homes each 12 months. A meal service must be observed during each of the reviews. Each review of each provider must be conducted without prior notice (unannounced). An unannounced follow-up review must be made no more than two weeks after a review at which the sponsor is unable to confirm program participation. (d) Each fiscal year, DHS will select by random sample at least 10% of the providers of each sponsor participating in the CACFP. Each contractor that sponsors day care homes must verify that the children for which meals are being claimed for reimbursement are enrolled for and receiving child care services and participating in the program. For each provider selected, the sponsor must contact the family of each child reported as enrolled for child care and participating in the program, excluding the day care home provider, during a test period established by DHS. Nothing in this chapter shall prohibit a contractor from verifying the participation of children in day care homes not randomly selected for verification by DHS or from conducting additional verification of participation in homes randomly selected by DHS. (e) Day home sponsoring organizations must ensure that at least one of their three monitoring reviews of day home providers participating on weekends is conducted on Saturday or Sunday. sec.12.24. Sanctions and Penalties. (a)-(e) (No change.) (f) If a sponsoring organization of day homes determines during a monitoring review, or by other means, that a provider has failed to comply with program requirements, the sponsor must execute a corrective action plan to achieve compliance. If a sponsoring organization conducts two or more unannounced monitoring reviews in any 12-month period during which the sponsor cannot confirm that children are enrolled for child care and participating in the program, the sponsor must execute a corrective action plan to ensure they are able to effectively monitor the provider's participation in the program. Exception: A sponsor may terminate the participation of a day care home provider without a corrective action plan if the safety of the children in care is at risk or if the sponsor determines that the program noncompliance is the result of intentional program abuse, deficient program operation, or fraudulent activities. The corrective action plan must: (1) prescribe the actions to be taken by the sponsor and the provider to achieve compliance; and (2) include the date by which corrective action must be completed. 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 August 31, 1995. TRD-9511048 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: October 1, 1995 Proposal publication date: June 16, 1995 For further information, please call: (512) 450-3765 Chapter 48. Community Care for Aged and Disabled In-Home and Family Support Program 40 TAC sec.48.2703, sec.48.2707 The Texas Department of Human Services (DHS) adopts amendments to sec.48. 2703 and sec.48.2707, without changes to the proposed text as published in the August 1, 1995, issue of the Texas Register (20 TexReg 5748). The justification for the amendments is public access to correct information. The amendment to sec.48.2703 will function by revising the In-Home and Family Support Program copayment schedule based on updated state median income figures compiled by the United States Department of Health and Human Services. The amendment to sec.48.2707 will function by changing the reference of the "Nursing Facility Waiver" program to the "Community Based Alternatives" program. No comments were received regarding adoption of the amendments. The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 35, which provides the department with the authority to administer public assistance and support services for persons with disabilities programs. The amendments implement the Human Resources Code, sec. sec.22.001-22.024 and sec.sec.35.001-35.012. 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 September 1, 1995. TRD-9511101 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: October 1, 1995 Proposal publication date: August 1, 1995 For further information, please call: (512) 450-3765 Chapter 79. Legal Services Subchapter K. Informal Hearings 40 TAC sec.79.1001-79.1005, 79.1007 The Texas Department of Human Services (DHS) adopts amendments to sec.sec.79. 1001-79.1005 and sec.79.1007 without changes to the proposed text as published in the July 28, 1995, issue of the Texas Register (20 TexReg 5608). The amendments are justified to clarify the language in the rules to make them consistent and accurate. The amendments will function by ensuring that rules are clearer and will be applied accurately. The department received no comments regarding adoption of the amendments. The amendments are adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The amendments implement the Human Resources Code sec. sec.22.001-22.024. 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 August 31, 1995. TRD-9511049 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: October 1, 1995 Proposal publication date: July 28, 1995 For further information, please call: (512) 450-3765 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 1. Management Advisory Committees 43 TAC sec.1.82, sec.1.83 The Texas Department of Transportation adopts amendments to sec.1.82 and sec.1.83, concerning department advisory committee operations and procedures and advisory committee responsibilities. Section 1.82 is adopted with changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5052). Section 1.83 is adopted without changes and will not be republished. Senate Bill 1428, 74th Legislature, 1995, repealed Texas Civil Statutes, Article 6673g, sec.2, which required the governor, the lieutenant governor, and the speaker of the house of representatives to appoint members to a committee to advise the commission on the rules of the department that may affect the environment. Senate Bill 3, 74th Legislature, 1995, enacted Texas Civil Statutes, 6675c, requires the department to appoint a rules advisory committee to advise the department on the adoption of rules concerning the registration of tow trucks under Texas Civil Statutes, Article 6675c, and the administration of the Vehicle Storage Facility Act, Texas Civil Statutes 6687-9a. Senate Bill 3, 74th Legislature, 1995, further provides that the department may adopt rules to govern the operations of the advisory committee. Texas Civil Statutes, Article 6252-33, provide that a state agency which is advised by an advisory committee shall 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 agency. The amendments are adopted to comply with Senate Bill 1428 and Senate Bill 3. The amendments will abolish the Environmental Advisory Committee and establish the Tow Truck Rules Advisory Committee, with representation from the regulated community, law enforcement, and the general public, to help ensure effective communication among interested parties and valuable input into the development of the rules affecting the tow truck industry. On July 21, 1995, the department conducted a public hearing on the proposed amendments to sec.1.82 and sec.1.83 and no oral or written comments were received. Section 1.82(b)(3) has been changed to reflect a change in title from assistant deputy director to assistant executive director. The amendments are adopted under Texas Civil Statutes, Articles 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically Senate Bill 1428, which repealed Texas Civil Statutes, Article 6673g, sec.2, which required the governor, the lieutenant governor, and the speaker of the house of representatives to appoint members to a committee to advise the commission on the rules of the department that may affect the environment, and Senate Bill 3, 74th Legislature, 1995, which requires the department to appoint a rules advisory committee to advise the department on the adoption of rules concerning the registration of tow trucks under Texas Civil Statutes, Article 6675c, and the administration of the Vehicle Storage Facility Act, Texas Civil Statutes 6687-9a. sec.1.82. Statutory Advisory Committee Operations and Procedures. (a) Applicability. This section applies to statutory advisory committees. (b) Membership. (1) Aviation. (A) The commission will appoint the members of the aviation advisory committee to staggered terms of three years, unless sooner removed at the discretion of the commission, with two members' terms expiring August 31 of each year. (B) The commission will appoint six members in August, 1995 for initial terms as follows: two to serve terms expiring August 31, 1997, two to serve terms expiring August 31, 1998, and two to serve terms expiring August 31, 1999. (C) Existing members shall serve until the commission appoints new members under subparagraph (B) of this paragraph. (2) Public Transportation. Members of the Public Transportation Advisory Committee shall be appointed and shall serve pursuant to Texas Civil Statutes, Article 6663b. (3) Tow Truck Rules. The department's assistant executive director for motorists services will appoint to the Tow Truck Rules Advisory Committee two members who represent the general public and one member each as representatives of the following: (A) tow truck operators; (B) vehicle storage facility operators; (C) owners of property having parking facilities; (D) law enforcement agencies or municipalities; and (E) insurance companies. (4) Officers. Each committee shall elect a chair and vice-chair by majority vote of the members of the committee. (c) Meetings. (1) Open meeting requirements. Advisory committees shall post and hold all meetings in accordance with the provisions applicable to meetings of the commission under the Texas Open Meetings Act, the Government Code, Chapter 551. Filing of notice of open meetings with the secretary of state shall be coordinated through the department's general counsel. (2) Regular meetings. The chair of the committee shall provide notice of time, date, place, and purpose of regular meetings to the members and the executive director, by mail or telephone or both, at least ten calendar days in advance of each meeting. (3) Quorum. A majority of the membership of an advisory committee constitutes a quorum. The committee may act only by majority vote of its membership. (4) Attendance. A record of attendance at each meeting shall be made. If a member of a committee appointed by the commission or by the department misses two consecutive meetings, written notice shall be given to the member. A third consecutive absence from a regular meeting will be sufficient grounds for removal of the member. (5) Parliamentary procedure. Parliamentary procedures for all committee meetings shall be in accordance with the latest edition of Roberts Rules of Order, except that the chair may vote on any action as any other member of the committee. (6) Record. Minutes of all committee meetings shall be prepared and filed with the commission. The complete proceedings of all committee meetings must also be recorded by electronic means. (7) Open records. All minutes, transcripts, and other records of the advisory committees are records of the commission and as such are subject to disclosure under the provisions of the Government Code, Chapter 552. (d) Reimbursement. Advisory committee members are not entitled to receive compensation for serving as members. Members of the Public Transportation and Aviation Advisory Committees will be reimbursed for reasonable and necessary expenses for performing their duties. Current rules and laws governing reimbursement of expenses for state employees shall govern reimbursement for expenses of advisory committee members. (e) Conflict of interest. Advisory committee members are subject to the same laws and policies governing ethical standards of conduct as those for commission members and employees of the department. (f) Administrative support. For each advisory committee, the executive director will designate an office of the department that will be responsible for providing any necessary administrative support essential to the functions of the committee. (g) Advisory committee recommendations. In developing department policies, the commission will consider the recommendations submitted by advisory committees. (h) Manner of reporting. (1) The office designated under subsection (f) of this section shall, in writing, report to the commission an official action of a statutory advisory committee, including any advice and recommendations, prior to commission action on the issue. The chair of the advisory committee or his or her designee will also be invited by the department to appear before the commission prior to commission action on a posted agenda item to present the committee's advice and recommendations. (2) In the event a written report cannot be furnished to the commission prior to commission action, the report may be given orally, provided that a written report is furnished within ten days of commission action. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 1, 1995. TRD-9511106 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: September 22, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 463-8630 43 TAC sec.1.85 The Texas Department of Transportation adopts an amendment to sec.1.85, concerning department advisory committees, with changes to the proposed text as published in the June 13, 1995, issue of the Texas Register (20 TexReg 4341) and July 18, 1995, issue of the Texas Register (20 TexReg 5224). Texas Civil Statutes, Article 6252-33, provide that a state agency which is advised by an advisory committee shall 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 agency. Texas Civil Statutes, Article 6252-33, further provide that a state agency shall establish by rule a date on which the committee will automatically be abolished unless the governing body of the agency affirmatively votes to continue the committee in existence. The proposed amendment which appeared in the June 13, 1995, issue of the Texas Register (20 TexReg 4341) added paragraph (22) to subsection (a). This amendment is adopted with changes to the number of paragraph only and will now appear as paragraph (17). An amendment to sec.1.85(a) is adopted by adding paragraph (17) which created the Safety Management System Committee to comply with the Intermodal Surface Transportation Efficiency Act of 1991, the federal rules governing its implementation which require that the state administer a Safety Management System, and the department's policy and goal to promote safe transportation. The governor has appointed the executive director of the department as the official focal point for the Safety Management System which will provide identification, consideration, evaluation, recommendations, selection, and implementation of improvements to transportation safety strategies and projects. The committee will provide advice and recommendations to the department on matters of transportation safety. On June 23, 1995, the department conducted a public hearing on the proposed amendment which created the Safety Management System Committee and no oral or written comments were received. The proposed amendment to sec.1.85, which appeared in the July 18, 1995, issue of the Texas Register (20 TexReg 5225) are adopted without changes. Section 1.85 mandates that the department's advisory committees shall be abolished on September 1, 1995, unless continued in existence by affirmative vote of the commission. Section 1.85 also provides that the Public Transportation Assessment Advisory Committee, which provides a forum for communication pertaining to a comprehensive assessment of public transportation performed by a private consultant, will automatically be abolished upon termination of the private consultant contract, but no later than August 31, 1995. To comply with Texas Civil Statutes, Article 6252-33, the amendment to sec.1. 85 is adopted to abolish the Transit Vehicle Specification Committee, Texas Department of Transportation-Texas Natural Resource Conservation Council-Tax Assessor-Collector Working Group, Federal Highway Administration Electronic Data Sharing Task Force, Hurricane Evacuation Route Task Force, and Public Transportation Assessment Advisory Committee because they have fulfilled their mission. The amendment to sec.1.85(a)(2) is adopted to change the name of the Specialist Certification Advisory Committee name to the Quality Control/Quality Assurance Certification Advisory Committee to more accurately reflect the committee's tasks related to certification. The amendment to sec.1.85(a)(7)-(16) is adopted to re-create the following remaining committees that have not yet completed their tasks: Quality Control/Quality Assurance Specification Development Committee, Quality Control/Quality Assurance Certification Advisory Committee, Consultant Engineering Advisory Committee, Statewide Transportation Policy Committee, Transit Operators' Advisory Committee, Registration and Title System (RTS) Liaison Committee and Dealer System Advisory Board, County Tax Assessor- Collector Review Team, Hydraulics and Erosion Control Laboratory Industry Advisory Committee, Traffic Records Council, Local IVHS steering committees, Motor Transportation Advisory Committee, Bicycle Advisory Committee, and El Paso District Citizen's Advisory Team (CAT). On July 28, 1995, the department conducted a public hearing on the proposed amendment to sec.1.85 to abolish some committees and to extend other committees and no oral or written comments were received. The amendment is adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically Texas Civil Statutes, and Article 6252-33, which provide that a state agency that is advised by an advisory committee shall 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 agency and shall establish by rule a date on which the committee will automatically be abolished unless the governing body of the agency affirmatively votes to continue the committee in existence. sec.1.85. Department Advisory Committees. (a) Creation. The following committees are established as department advisory committees. (1) Quality Control/Quality Assurance Specification Development Committee. (A) Purpose. The Quality Control/Quality Assurance Specification Development Committee is created for the purpose of developing a quality control/quality assurance specification for hot-mix asphaltic concrete pavement. Through a formalized review process, the committee provides a forum for the exchange of information through a committee composed of the department engineering staff, highway industry material suppliers, and contractor representatives. Advice and recommendations expressed by the committee provide the department and the commission with increased insight in material and construction methods for quality control and quality assurance, thus aiding the department and the commission's goals of ensuring industry input into design standards and practices. (B) Duties. The committee shall advise the department and the commission concerning the development of a quality control/quality assurance hot-mix asphaltic concrete pavement specification. (C) Manner of reporting. The committee shall report its advice and recommendations to the pavement engineer of the Design Division. (D) Duration. Upon completion of the quality control/quality assurance hot-mix asphaltic concrete specification, the committee is abolished. (2) Quality Control/Quality Assurance Certification Advisory Committee. (A) Purpose. The purpose of the Quality Control/Quality Assurance Certification Advisory Committee is to review the Specialist Certification Program and to maintain a forum for the exchange of information between the department and the paving industry. Advice and recommendations expressed by the committee provide the department and the commission greater insight into pavement technology, testing, and specialist training, thus facilitating the department's and the commission's goals of ensuring safe, efficient, and economical pavement design, construction, and maintenance practices for increased pavement life and performance. (B) Duties. The committee shall provide advice and recommendations concerning: (i) modifications and improvements to the training program curriculum and operations; (ii) decertification claims; (iii) recertification refresher courses; and (iv) other matters as required to successfully implement and continue the Specialist Certification Program. (C) Manner of reporting. The committee shall report its advice and recommendations to the assistant executive director for field operations. (3) Consultant Engineering Advisory Committee. (A) Purpose. The purpose of the Consultant Engineering Advisory Committee is to coordinate and facilitate the use of the consultant engineering community in department operations. (B) Duties. The committee shall review, discuss, and recommend items of mutual concern between the department and the consultant engineering community. (C) Manner of reporting. The committee shall report its advice and recommendations to the deputy executive director for transportation planning and development. (4) Project advisory committees. (A) Purpose. The executive director may authorize a district engineer to create, by written order, an ad hoc project advisory committee composed of the following members as may be deemed appropriate by the district engineer: department staff; affected property owners and business establishments; technical experts; professional consultants representing the department; and representatives of local governmental entities, the general public, chambers of commerce, and the environmental community. A project advisory committee shall serve the purpose of facilitating, evaluating, and achieving support and consensus from the affected community and governmental entities in the initial stages of a highway improvement project. Advice and recommendations of a committee provide the department with an enhanced understanding of public, business, and private concerns about a project from the development phase through the implementation phase, thus facilitating the department's communications and traffic management objectives, resulting in a greater cooperation between the department and all affected parties during project development and construction. (B) Duties. A project advisory committee shall: (i) maintain community and local government communication; and (ii) respond in a timely fashion to affected parties' concerns about project development and construction. (C) Manner of reporting. A project advisory committee shall report its advice and recommendations to the district engineer. (D) Duration. A project advisory committee may be abolished at any stage of project development, but in no event may a committee continue beyond completion of the project. (5) Statewide Transportation Policy Committee. (A) Purpose. Texas Civil Statutes, Article 6663(f), and 23 United States Code sec.135 require the department to develop a statewide multimodal transportation plan that encompasses all modes of transportation. Federal law further provides that in developing the plan the department must seek public input from interested parties. To comply with these requirements, the Statewide Transportation Policy Committee, to be composed of private transportation providers and other governmental agencies and individuals concerned with transportation, will advise the department on its statewide transportation plan. The committee will provide a forum for identifying issues to be addressed by the planning process and for providing input into the department's planning process. The committee members represent a constituency of interests and in this way broaden input into the planning process. (B) Duties. The committee shall: (i) review and comment on issue papers prepared as part of developing recommended goals for Texas' transportation system; (ii) review and comment on the draft statewide transportation plan; (iii) have its members serve as chairs of issue committees to develop and explore issues that pertain to the statewide transportation planning process; and (iv) provide logistical assistance such as furnishing data and existing planning materials. (C) Manner of reporting. The committee shall report its advice and recommendations to the commission. (D) Statewide transportation policy issue committees. (i) The Statewide Transportation one or more issue committees to advise it on specific planning issues, such as environmental, intermodal, financial, and special transportation needs. (ii) An issue committee shall report its advice and recommendations to the Statewide Transportation Policy Committee. (E) Reimbursement. The department may reimburse a member of the Statewide Transportation Policy Committee or an issue committee for reasonable and necessary travel expenses. Current rules and laws governing reimbursement of expenses for state employees shall govern reimbursement of expenses for advisory committee members. (6) Transit Operators' Advisory Committee. (A) Purpose. Through an open communication process the Transit Operators' Advisory Committee provides a forum for the exchange of information between transit operators and the Public Transportation Division. (B) Duties. The committee shall: (i) provide input to the Public Transportation Division on procedures that are developed for the routine management of grant programs; (ii) provide input to the Public Transportation Division in the development of the Rural Transit Assistance Program as recommended in the Federal Transit Administration's Circular 9040. 1C, which stipulates that operators should be given maximum opportunity to participate in the development process; and (iii) perform other duties as determined by the Public Transportation Division director. (C) Manner of reporting. The committee shall report its advice and recommendations to the Public Transportation Division director. (7) Ad hoc transit advisory panels. (A) Purpose. In order to provide for effective and timely input from affected public transportation providers and riders, the commission, by minute order, may create an ad hoc transit advisory panel. (B) Duties. An ad hoc advisory panel shall advise the Public Transportation Division on a single issue or program that only affects a specific segment of the public transportation industry or of the public. An example of an ad hoc panel would be a committee created to advise the division on the funding allocation rules for a particular grant program. (C) Manner of reporting. An ad hoc advisory panel shall report its advice and recommendations to the Public Transportation Division director. (D) Duration. An ad hoc advisory panel shall be abolished no later than 90 days after its creation. (8) Registration and Title System (RTS) Liaison Committee and Dealer System Advisory Board. (A) Purpose. The Registration and Title System (RTS) Liaison Committee and Dealer System Advisory Board provide forums to aid in the implementation of the RTS. The purpose of the committee and board is to obtain feedback from the primary users of the system, and to seek solutions to potential impediments before the system is put in daily use. (B) Duties. The committee and board shall: (i) identify RTS user requirements; (ii) convey system status information to the users and obtain the input of users; and (iii) obtain system acceptance approval from the users. (C) Manner of reporting. The committee and board shall report their advice and recommendations to the Vehicle Titles and Registration Division director. (9) County Tax Assessor-Collector Review Team. (A) The County Tax Assessor-Collector Review Team provides a forum for the review of proposed motor vehicle title and registration related policies and procedures prior to implementation. The review team advises the department of the potential impact of such policies and procedures on the offices of Texas' county tax assessor-collectors, who are the department's statutorily designated agents for motor vehicle title and registration matters. By establishing formal two-way communication, the review team provides an opportunity for partnering, thus allowing for the smoothest possible operation of Texas' motor vehicle title and registration system. (B) Duties. The team shall: (i) advise the department of the potential impact of proposed policies and procedures; and (ii) suggest changes or improvements to the department's title and registration operations. (C) Manner of reporting. The team shall report its advice and recommendations to the Vehicle Titles and Registration Division director. (10) Rulemaking advisory committees. (A) Purpose. The commission, by order, may create ad hoc rulemaking advisory committees pursuant to the Government Code, Chapter 2001, sec.2001.031, for the purpose of receiving advice from experts, interested persons, or the general public with respect to contemplated rulemaking. (B) Duties. A rulemaking advisory committee shall provide advice and recommendations with respect to a specific contemplated rulemaking. (C) Manner of reporting. A rulemaking advisory committee shall report its advice and recommendations to the division responsible for the development of the rules. (D) Duration. A rulemaking committee shall be abolished upon final adoption of rules by the commission. (11) Hydraulics and Erosion Control Laboratory Industry Advisory Committee (IAC). (A) Purpose. The IAC provides a forum through which affected industry groups and personnel may comment on and participate in the formal evaluation program for erosion control products undertaken by the Texas Department of Transportation/ Texas Transportation Institute Hydraulic and Erosion Control Laboratory. Through the IAC, the department is assured that open lines of communication with affected industries are maintained. In this way, the department assures product evaluation takes place with substantive industry comment and that any erosion control materials used by the department will be of the highest possible quality. (B) Duties. The IAC shall provide advice and recommendations concerning the: (i) results of the current product evaluation cycle; and (ii) product evaluation procedures for the next available evaluation cycle. (C) Manner of reporting. The IAC shall report its advice and recommendations to the assistant executive director for field operations. (12) Traffic Records Council (TRC). (A) Purpose. The TRC coordinates and guides the planning and implementation of various Texas traffic records systems. The overall goal of the TRC is to share information regarding the various state data bases related to traffic records, establish a mutual understanding of the overall state goal of increasing the safety and efficiency of the roadway system, and to develop strategies for continued cooperation among all state and local participants with an interest in the traffic records process. (B) Duties. The TRC shall: (i) assist the department in the coordination and guidance of the planning and implementation of the various Texas traffic records systems to improve information quality and quantity; (ii) provide recommendations concerning the implementation of a strategic plan for the improvement of the state's record systems; (iii) help transfer related information on technology and systems through meetings and forums; and (iv) provide recommendations to the various agencies on system enhancements and linkages. (C) Manner of reporting. The TRC shall report its advice and recommendations to the various participating agencies, including the department and its Traffic Operations Division. (13) Local IVHS steering committees. (A) Purpose. Federal law encourages the expenditure of federal transportation funds to achieve improvements in the efficiency of transportation operations. A portion of these funds are specifically designated for the planning and testing of Intelligent Vehicle Highway Systems (IVHS) technologies. As part of the development and implementation of these projects, a district engineer, in conjunction with local officials, may create a steering committee to provide support for IVHS activities. Advice and recommendations expressed by a committee will foster the coordination of state and local benefit in the design, maintenance, and operation of IVHS facilities. (B) Duties. A committee shall provide advice and recommendations with respect to: (i) IVHS project priorities; (ii) the approval of projects; (iii) seeking project funding; (iv) coordinating public and private ventures; and (v) promoting IVHS at local, state, and national levels. (C) Manner of reporting. A committee shall report its advice and recommendations to the local district engineer, or his or her designee. (14) Motor Transportation Advisory Committee. (A) Purpose. The Motor Transportation Advisory Committee provides a forum for communication among state agencies, the trucking industry, motor bus companies that do not operate wholly within the limits of any incorporated town or city and its suburbs, and the affected public in a cooperative effort to seek solutions to common problems, and to support the department's mission to work cooperatively to provide safe, effective, and efficient movement of people and goods. (B) Duties. The Motor Transportation Advisory Committee shall provide advice with respect to: (i) the issuance of permits for the movement of oversize and overweight vehicles and loads; (ii) the registration of trucks and motor buses; (iii) future truck and motor bus equipment and highway needs; (iv) coordination of regulatory and enforcement activities of state agencies affecting the trucking and motor bus industries; (v) truck and motor bus safety; (vi) opportunities for one-stop shopping for state services and requirements of trucks and motor bus companies; and (vii) other issues concerning the department and the trucking and motor bus industries. (C) Manner of reporting. The committee shall report its advice and recommendations to the assistant executive director for motorist services and the assistant executive director for multimodal transportation. (15) Bicycle Advisory Committee. (A) Purpose. The purpose of the bicycle advisory committee is to advise the commission on bicycle issues. By involving representatives of the public, including bicyclists, the department helps ensure effective communication with the bicycle community, and that the bicyclist's perspective will be considered in the development of departmental policies affecting bicycle use including, the design, construction and maintenance of highways. (B) Duties. The committee shall review and make recommendations on items of mutual concern between the department and the bicycling community. (C) Manner of reporting. The committee shall report its advice and recommendations to the commission. (D) Creation. The effective date for establishment of the bicycle advisory committee will be the same date that the Bicycle Rules Advisory Committee is abolished. (E) Reimbursement. The department may reimburse a member of the bicycle advisory committee for reasonable and necessary travel expenses. Current rules and laws governing reimbursement of expenses for state employees shall govern reimbursement of expenses for advisory committee members. (16) El Paso District Citizen's Advisory Team (CAT). (A) Purpose. The purpose of the Citizen's Advisory Team is to provide the department with a comprehensive understanding of public perception and expectations regarding the department's roles and responsibilities for the El Paso area's transportation system. The committee, consisting of department staff, local government, and the general public, shall serve the purpose of facilitating and achieving effective communication and cooperation with the community, creating public awareness, and assisting the department in making presentations to decision makers. (B) Duties. The committee shall: (i) maintain community communication; and (ii) review and make recommendations on transportation issues in the El Paso area. (C) Subcommittees. (i) The CAT may independently on select transportation issues. (ii) A subcommittee shall report its advice and recommendations to the CAT. (D) Manner of reporting. The committee shall report its advice and recommendations to the district engineer of the El Paso district. (17) Safety Management System Committee. (A) Purpose. The Safety Management System Committee provides advice and makes recommendations to improve transportation safety by identifying and evaluating safety issues for consideration in transportation strategies, plans, and projects. (B) Duties. The committee shall: (i) develop and recommend safety goals and objectives for the state through consideration of current transportation trends; (ii) identify and recommend safety policies, procedures, and processes which affect safety-related decisions; and (iii) coordinate and communicate transportation issues with other agencies and individuals to ensure a functional and productive safety management system. (C) Subcommittees. (i) The committee may independently on select safety issues. (ii) A subcommittee shall report its finding or recommendation to the committee chair. (D) Manner of reporting. The committee shall report its advice and recommendations to the participating agencies and the Director of Traffic Operations. (E) Duration. The committee is abolished September 1, 1997, unless continued in existence by affirmative vote of the commission. (b) Operating procedures. (1) Membership. An advisory committee shall be composed of not more than 24 members to be appointed by the office or official to whom the committee is to report. When applicable to the purpose and duties of the committee, the membership shall provide a balanced representation between: (A) industries or occupations regulated or directly affected by the department; and (B) consumers of services provided either by the department or by industries or occupations regulated by the department. (2) Meetings. (A) An advisory committee shall meet once a calendar year and such other times as requested by the office to which it reports. (B) A majority of the membership of an advisory committee constitutes a quorum. A committee may take formal action only by majority vote of its membership. (3) Officers. Each committee shall elect a chair and vice-chair by majority vote of the members of the committee. (c) Duration. Except as otherwise specified in this subsection, a committee created under this section is abolished September 1, 1997, unless continued in existence by affirmative vote of the commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 1, 1995. TRD-9511107 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: September 22, 1995 Proposal publication date: June 13 and July 18, 1995 For further information, please call: (512) 463-8630 Chapter 3. Finance Division 43 TAC sec.3.1 The Texas Department of Transportation adopts the repeal of sec.3.1, concerning partial payments, without changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5055). This section is no longer necessary due to the simultaneous adoption of the re- enacted subject matter in Chapter 9, Contract Management, as new sec.9.20 concerning partial payments, in an amended form. On August 2, 1995, the department conducted a public hearing on the proposed repeal of sec.3.1 and no oral or written comments were received. The repeal is adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation. 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 September 1, 1995. TRD-9511108 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: September 22, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 463-8630 Chapter 9. Contract Management The Texas Department of Transportation adopts an amendment to sec.9.11, concerning definitions and new sec.9.20, concerning partial payments, without changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5058). New sec.9.20 replaces existing sec.3.1, concerning partial payments which is simultaneously repealed. The amendment and new section are necessary to update rules that carry out the provisions of Texas Civil Statutes, Article 6674m as amended by Senate Bill 532, 74th Legislature, Regular Session. Texas Civil Statutes, Article 6674m provide for the partial payment of highway improvement contracts, and require the department to retain 5.0% of the contract price until the entire work has been completed and accepted. Senate Bill 532, 74th Legislature removes the requirement from Texas Civil Statutes, Article 6674m that the department retain 5.0% of the contract price until the work is completed and accepted in contracts for maintenance or contracts for the making of necessary plans and surveys preliminary to construction, reconstruction, or maintenance. New sec.9.11 provides definitions of a routine maintenance contract and a preventive maintenance contract. These are necessary to distinguish preventive maintenance contracts from routine maintenance contracts, which are not required to have 5.0% of the contract price retained under new sec.9.20. New sec.9.20 provides that 5.0% of the contract price is retained in construction and preventive maintenance contracts until the work has been accepted and completed, the retained amount may be deposited in a trust account if the contract price exceeds $300,000, interest on the retainage will be paid to the contractor unless otherwise specified, and funds will not be retained for routine maintenance contracts or contracts for the making of all necessary plans and surveys preliminary to construction, reconstruction, or maintenance. On August 2, 1995, the department conducted a public hearing on the proposed repeal of sec.3.1 and written comment was received. The Consulting Engineers Council of Texas comment urged the commission to adopt the deletion of retainage as provided in new sec.9.20. Subchapter B. Highway Improvement Contracts 43 TAC sec.9.11 The amendment is adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, Texas Civil Statutes, Article 6674i, which require rules to be prescribed on all bidders on bids received for contracts awarded for the improvement of the state highway system, and Texas Civil Statutes, Article 6674m, which provide for the partial payment of highway improvement contracts, and require the department to retain 5.0% of the contract price until the entire work has been completed and accepted. 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 September 1, 1995. TRD-9511109 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: September 22, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 463-8630 43 TAC sec.9.20 The new section is adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, Texas Civil Statutes, Article 6674i, which require rules to be prescribed on all bidders on bids received for contracts awarded for the improvement of the state highway system, and Texas Civil Statutes, Article 6674m, which provide for the partial payment of highway improvement contracts, and require the department to retain 5.0% of the contract price until the entire work has been completed and accepted. 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 September 1, 1995. TRD-9511111 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: September 22, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 463-8630 43 TAC sec.sec.9.12, 9.13, 9.15, 9.17 The Texas Department of Transportation adopts amendments to sec.sec.9.12, 9. 13, 9.15, and 9.17, concerning highway improvement contracts, without changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5059). House Bill 2176, 74th Legislature, Regular Session, amended Article 6674h to: limit the advertising necessary for highway improvement contracts involving an amount less than $300,000; allow bids for amounts less than $300, 000 to be filed with the district and opened and read by the district engineer or the district engineer's designee; and provide that the department may authorize the executive director or the director's designee to reject bids or award such contracts. Section 9.12 is amended to provide for bid information to be submitted by the bidder to the department's Construction and Maintenance Division in Austin 15 days prior to the last day of letting, that satisfactory audited financial information will qualify the bidder for a 12-month period, that the department may grant a three-month grace period, and that the department may require current financial information under certain circumstances. To clarify department procedures and inform potential bidders of department requirements, sec.9.12 is also amended to describe its levels of bidding capacity and the relation of the levels to previous experience. Section 9.13 is amended in accordance with House Bill 2176 to authorize limited advertising for contracts involving an engineer's estimated cost of less than $300,000. Section 9.15 is amended in accordance with House Bill 2176 to authorize bids for contracts with an engineer's estimate of less than $300,000 to be opened and read at a public meeting conducted by the district engineer, or his or her designee. Section 9.17 is amended in accordance with House Bill 2176, which provides that the commission may authorize the executive director or the director's designee to award or reject bids for contracts involving less than $300,000. The amendments authorize the executive director or the director's designee to reject bids or award such contracts under the same conditions and limitations as apply to other contracts. On August 1, 1995, the department conducted a public hearing on the proposed adoption of amendments to sec.sec.9.12, 9.13, 9.15, and 9.17 and no oral or written comments were received. The amendments are adopted under Texas Civil Statutes, Articles 6666, which provide the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation and Texas Civil Statutes, and Article 6674i which requires the commission to prescribe rules on all bidders on bids received for contracts awarded for the improvement of the state highway system. 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 September 1, 1995. TRD-9511110 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: September 22, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 463-8630 Subchapter C. Contracting for Architectural and Engineering 43 TAC sec.9.38 The Texas Department of Transportation permanently adopts an amendment to sec.9.38, concerning contract management, without changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5061). The amendment updates rules that carry out the provisions of Texas Civil Statutes, Article 6674m, as amended by Senate Bill 532, 74th Legislature, 1995. Texas Civil Statutes, Article 6674m, provide for the partial payment of highway improvement contracts, and require the department to retain 5.0% of the contract price until the entire work has been completed and accepted. Government Code, Chapter 2254, Subchapter A, the Professional Services Procurement Act, sets forth requirements for selection and contracting of architectural and engineering services. Senate Bill 532, 74th Legislature, 1995, removes the requirement that the department retain 5.0% of the contract price until the work is completed and accepted in contracts for the making of necessary plans and surveys preliminary to construction, reconstruction, or maintenance. In accordance with Senate Bill 532, 74th Legislature, 1995, the amendment to sec.9.38 removes the requirements that the department withhold 5.0% from each monthly payment until completion of the contract work and 2.0% until completion of the final audit. On August 2, 1995, the department conducted a public hearing on the amendment to sec.9.38 and one written comment was received. The Consulting Engineers Council of Texas urged the commission to adopt the deletion of retainage as provided in the amendment to sec.9.38. The amendment is adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation; Government Code, Chapter 2254, Subchapter A, the Professional Services Procurement Act which sets forth requirements for selection and contracting of architectural and engineering services; and Texas Civil Statutes, Article 6674m, which provide for the partial payment of highway improvement contracts, and require the department to retain 5.0% of the contract price until the entire work has been completed and accepted. 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 September 1, 1995. TRD-9511112 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: September 22, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 463-8630 Chapter 11. Design Notice of Lettings 43 TAC sec.11.31 The Texas Department of Transportation adopts the repeal of sec.11.31, concerning notification and legal advertisements of lettings, without changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5062). The repeal is no longer necessary due to the adoption of the re-enacted subject matter in an amended form in Chapter 9, Contract Management, as sec.9. 13, effective November 23, 1994. On July 11, 1995, a comment deadline of August 10, 1995, was published in the Texas Register and no comments on the repeal was received. The repeal is adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation and Texas Civil Statutes, Article 6674h which provide the procedure for competitive bids. 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 September 1, 1995. TRD-9511113 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: September 22, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 463-8630