ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 24. Texas Agricultural Finance Authority: Farm and Ranch Finance Program 4 TAC sec.24.8, sec.24.12 The Board of Directors of the Texas Agricultural Finance Authority (the Authority), a public authority within the Texas Department of Agriculture (the department), adopts amendments to sec.24.8 and sec.24.12, concerning the Farm and Ranch Finance Program, without changes to the proposed text as published in the July 21, 1995, issue of the Texas Register (20 TexReg 5342). These amendments are adopted in order to comply with statutory changes enacted by the 74th Legislature, Senate Bill 699. The amendment to sec.24.8 will function by requiring that an applicant have at least three years experience in agriculture production relevant to the application, increasing the maximum acceptable net worth of the applicant to $400,000, and requiring that the applicant disclose any and all business and familial affiliations with board members, staff, and the lender, that could present a conflict of interest. The amendment to sec.24.12 will function by deleting references to the down payment, and renumbering the paragraphs accordingly. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Agriculture Code, sec.59.022, which provides the Texas Agricultural Finance Authority with the authority to adopt rules governing various aspects of the program; sec.59.023, which states that the Authority has the power to adopt rules and procedures as necessary to carry out Chapter 59; and Texas Government Code, sec.2001.004, which requires that the Authority adopt rules of practice stating the nature and requirements of all available formal and informal procedures. 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 September 13, 1995. TRD-9511751 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: October 4, 1995 Proposal publication date: July 21, 1995 For further information, please call: (512) 463-7583 26> Chapter 26. Texas Agricultural Diversification Program: Linked Deposits 4 TAC sec.sec.26.1-26.12 The Texas Department of Agriculture (the department) adopts the repeal of sec.sec.26.1-26.12, concerning the Texas Agricultural Diversification Program: Linked Deposits, without changes to the proposed text as published in the July 21, 1995, issue of the Texas Register (20 TexReg 5343). The repeals are adopted in order to comply with statutory changes enacted by the 74th Legislature, Senate Bill 372, which, effective September 1, 1995, transfers rulemaking authority for the Linked Deposit Program from the Commissioner of Agriculture to the Board of Directors of the Texas Agricultural Finance Authority (the Authority). The repeals will function by repealing these sections so that they may be replaced by new sections adopted by the Authority. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Agriculture Code, sec.44.007, which provides the Texas Department of Agriculture with the authority to promulgate rules for the administration of the linked deposit program. 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 September 13, 1995. TRD-9511752 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: October 4, 1995 Proposal publication date: July 21, 1995 For further information, please call: (512) 463-7583 26> Chapter 26. Texas Agricultural Finance Authority: Linked Deposit Program 4 TAC sec.sec.26.1-26.12 The Board of Directors of the Texas Agricultural Finance Authority (the Authority), a public authority within the Texas Department of Agriculture (the department), adopts new sec.sec.26.1-26.12, concerning the Linked Deposit Program (the program), without changes to the proposed text as published in the July 21, 1995, issue of the Texas Register (20 TexReg 5343). These new sections are adopted in order to comply with statutory changes enacted by the 74th Legislature, Senate Bill 372, which, effective September 1, 1995, transfers rulemaking authority for the program from the Commissioner of Agriculture to the Authority. These new sections replace sections repealed by the department, and provide for the continued implementation of the program. New sec.sec.26.1-26.4 will function by providing definitions, an introduction to the program rules, and a statement of the program's purpose and scope. New sec.26.5 will function by outlining the application procedures for applicants to the linked deposit program, and new sec.26.6 will function by outlining the application procedures for lenders wishing to participate in the program. New sec.26.7 will function by describing the application review procedure for the program. New sec.26.8 will function by describing the acceptance and rejection procedures for the program. New sec.26.9 will function by stating the permissible and impermissible uses of loan proceeds under the program, and new sec.26.10 will function by describing the program limitations. New sec.26.11 will function by providing that any sections of the new rules found to be invalid by any court shall not affect the validity of the remaining provisions. New sec.26.12 will function by providing the address to which communications regarding the program should be sent. One comment was received regarding the adoption of the new sections. Jack Burkett, Associate Counsel for the Independent Bankers Association of Texas (IBAT), commented that the Linked Deposit Program failed to recognize that loans under the program were set at interest rates with set maturities tied to the State's biennium. Mr. Burkett stated that, apparently, when rates dropped in 1994, the Texas State Treasury arbitrarily changed the deposits such that they were no longer tied to the State's biennium, failing to recognize that loans had set interest rates with set maturities tied to the State's biennium. Mr. Burkett stated that it was the bank's and IBAT's belief that the loans made under the Linked Deposit Program were to be locked in to an interest rate not to exceed four points above the rate of interest earned on the deposit. Mr. Burkett felt that loans made under the program are, in fact, variable rate loans, many banks will not participate, because the nature of the commercial banking business depends upon a bank being able to predict with accuracy the bank's future income based on certain U.S. Treasury maturities and not be subject to some arbitrary reduction in interest income. If the loans turn out to be variable rate loans, states Mr. Burkett, then the note is incorrect and the bank will have incorrectly disclosed the terms of the loan, which can have serious consequences under both state and federal law. As a solution, Mr. Burkett suggested adding a sentence at the end of new sec.26.6(5) which would state, "The rate thus set shall remain fixed at that rate until the end of the then existing fiscal biennium." The board does not disagree with Mr. Burkett's suggestion, but at this time, the board does not have the authority to incorporate the comment into this rule. The board's rulemaking authority is limited to the loan portion of the program. The proposal contained in the comment seeks to control the actions of the Texas State Treasury (the Treasury) in the depository portion of the program. The board will enter into discussions with the Treasury and, if agreement is reached with the Treasury, may consider the amendment of these rules at a later date. The new sections are adopted under the Texas Agriculture Code, sec.44.007, as amended by the 74th Legislature, Senate Bill 372, which, effective September 1, 1995, provides that the Board of Directors of the Authority shall promulgate rules for the administration of the loan portion of the linked deposit program; and Texas Government Code, sec.2001.004, which requires that the Authority adopt rules of practice stating the nature and requirements of all available formal and informal procedures. 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 September 13, 1995. TRD-9511753 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: October 4, 1995 Proposal publication date: July 21, 1995 For further information, please call: (512) 463-7583 26> Chapter 28. Texas Agricultural Finance Authority: Loan Guaranty Program 4 TAC sec.sec.28.3, 28.5-28.13 The Board of Directors of the Texas Agricultural Finance Authority (the Authority), a public authority within the Texas Department of Agriculture (the department), adopts amendments to sec. sec.28.3, 28.5-28.13, concerning the Loan Guaranty Program, without changes to the proposed text as published in the July 21, 1995, issue of the Texas Register (20 TexReg 5346). These amendments are adopted in order to comply with statutory changes enacted by the 74th Legislature, Senate Bill 372, to delete duplicative and unnecessary provisions, to better reflect the actual practice of the program, to provide greater clarity to the rules, and to provide for more efficient operation of the program. The amendment to sec.28.3 will function by deleting references to the complete title of the Texas Agricultural Finance Authority throughout the sections, and use the term "Authority" instead, to make full use of the definition of Authority contained in sec.28.3, and by clarifying the definitions of "Act", "interest rate", and "qualified application." The amendment to sec.28.6 will function by deleting subsection (b), which provides for maximum loan guaranty amounts and ratios, as it is an unnecessary duplication of other sections. The amendment to sec.28.7(a)(2) will function by deleting the requirement that the employment opportunities created by a proposed project be in the field of diversified, innovative, or value-added agricultural production, processing, marketing, or exporting of agricultural products. The deleted provision is unnecessary and duplicative of other provisions regarding the nature of businesses to be assisted by the loan guaranty program. The amendment to sec.28.7(a)(7) will function by deleting the word "preliminary" in reference to the letter of commitment from a lender to the Authority. The amendment to sec.28.7(c) will function by clarifying that refinancing of a debt is not an eligible project cost where the refinancing will be used to improve the lender's position in the loan, thereby preventing lenders from refinancing loans in an attempt to decrease their exposure on the loans. The amendment to sec.28.8(e) will function by adding a time limitation of 30 days for the acceptance of a loan commitment, altering the time limitation for closing of a loan from 90 to 180 days, and providing that the board may approve an additional extension of not more than 60 days. The amendment to sec.28.9(a)(15) will function by providing that applicants must disclose business and familial affiliations with employees of the department that may create a conflict of interest. The amendment to sec.28.9(a)(16) will function by requiring that an acknowledgment form be provided by the applicant for all guarantors and/or owners with more than 20% ownership. The amendment to sec.28.10(c) will function by providing that the maximum aggregate loan amount may not exceed $1 million, but upon a two-thirds vote, the maximum aggregate loan amount may exceed $1 million, but may not exceed $2 million. The amendment also provides that a business that already has an existing loan with the authority may not obtain a second loan except upon a two-thirds vote of the board. The amendment to sec.28.10(d) will function by deleting provisions regarding maximum loan amounts as duplicative, and by stating that the Authority shall participate in every loan in an amount no less than 80% of the loan guaranty amount. The amendment reflects the current practice of the Authority. The proposed amendment to sec.28.10(h) will function by deleting the amount of the nonrefundable application fee. The amendment to sec.28.10(i) will function by deleting, as unnecessary verbiage, the language that states that the loan closing will be held at the date, time, and location determined by the Authority. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Agriculture Code, sec.58.022, which provides the Authority with the authority to adopt rules and procedures as necessary for the administration of its programs; sec.58.023, which provides the Authority with the authority to adopt rules to establish criteria for eligibility of applicants and lenders under the Loan Guaranty Program; and Texas Government Code, sec.2001.004, which requires that the Authority adopt rules of practice stating the nature and requirements of all available formal and informal procedures. 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 September 13, 1995. TRD-9511754 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: October 4, 1995 Proposal publication date: July 21, 1995 For further information, please call: (512) 463-7583 26> TITLE 13. CULTURAL RESOURCES Part I. Texas State Library and Archives Commission Chapter 7. Local Records Records Retention Schedules 13 TAC sec.7.125 The Texas State Library and Archives Commission adopts an amendment to sec.7.125, concerning the adoption of a records retention schedule for records of various public works and services departments of local governments and a revised records retention schedule for records common to all local governments pursuant to the Government Code, sec.441.158(a). Section 7.125 is adopted with changes to the proposed text as published in the April 28, 1995, issue of the Texas Register (20 TexReg 3125). The changes occurred only to the Local Schedule GR, FIGURE 1: 13 TAC sec.7.125(b)(1), and Local Schedule PW, FIGURE 2: 13 TAC sec.7.125(b)(2), and are adopted with minor editorial changes to correct the title of Form SLR 501, (Request for Authority to Destroy Unscheduled Records) on page 2 of each schedule and to correct typographical errors. A retention note was added to item number 1075-01(a) in Local Schedule GR (page 22) to clarify application of the retention period. There were no changes made to the text of sec.7.125 and the rule will be republished only for clarification. The schedules establish mandatory minimum periods of time the records listed must be retained by local governments and elected county officers before disposal. Local Schedule PW provides retention periods for building inspection records, traffic and transportation records, environmental hazards records, parks and recreation records, libraries and museum records, records of social services, and records of other public works or services activities in local governments. Local Schedule GR is amended by adding retention periods for records relating to workplace safety and data processing. The schedules provide guidelines to local officials concerning how long records must be retained before they are eligible for disposal as specified by the Local Government Code, sec.203.042, and assist those officials in meeting the requirements of the Local Government Code, sec.203.41, for preparation and filing of records control schedules that conform to the records retention schedules issued by the commission. No comments were received regarding adoption of the amendment. The amendment is adopted under the Government Code, sec.441.158(a), which requires the commission to prepare and distribute records retention schedules for local government records and to adopt the schedules by rule. The amendments were approved by the Local Government Records Committee, as required by the Government Code, sec.441.165, at an open meeting held in Austin on June 20, 1995. The Government Code, sec.441.158(a) is affected by the amendment. sec.7.125. Records Retention Schedules. (a) The following records retention schedules, required to be adopted by rule under the Government Code, 441.158(a), are adopted by reference. Copies of the schedules are available from the State and Local Records Management Division, Texas State Library, P.O. Box 12927, Austin, Texas 78711-2927; (512) 452-9242. (1) Local Schedule LC: Records of Justice and Municipal Courts; (2) Local Schedule TX: Records of Property Taxation, 2nd Edition; (3) Local Schedule EL: Records of Elections and Voter Registration; (4) Local Schedule SD: Records of Public School Districts; (5) Local Schedule JC: Records of Public Junior Colleges; (6) Local Schedule HR: Records of Public Health Agencies; (7) Local Schedule PS: Records of Public Safety Agencies; (8) Local Schedule CC: Records of County Clerks; (9) Local Schedule DC: Records of District Clerks; (10) Local Schedule UT: Records of Utility Services. (b) The following records retention schedules, required to be adopted by rule under the Government Code, 441.158(a), are adopted. (1) Local Schedule GR: Records Common to All Local Governments, 3rd Edition. FIGURE 1: 13 TAC 7.125(b)(1). (2) Local Schedule PW: Records of Public Works and Services. FIGURE 2: 13 TAC 7.125(b)(2). (c) The retention periods in the records retention schedules adopted under subsections (a) and (b) of this section serve to amend and replace the retention periods in all editions of the county records manual published by the commission between 1978 and 1988. The retention periods in the manual, which were validated and continued in effect by the Government Code, 441.159, until amended, are now without effect. 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 14, 1995. TRD-9511793 Raymond Hitt Assistant State Librarian Texas State Library and Archives Commission Effective date: November 1, 1995 Proposal publication date: April 28, 1995 For further information, please call: (512) 463-5460 26> Part III. Texas Commission on the Arts Chapter 31. Agency Procedures 13 TAC sec.31.10 The Texas Commission on the Arts adopts by reference an amendment to sec.31.10, concerning the Application Forms and Instructions for the Financial Assistance Application, with changes to the proposed text as published in the August 8, 1995, issue of the Texas Register (20 TexReg 5978). This section is being adopted to be consistent with the Texas Arts Plan as amended September, 1993. By adopting the amendment, the commission will be better able to assist applicants in completing the application form for financial assistance. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Government Code, sec.444.009, which provide the Texas Commission on the Arts with the authority to make rules and regulations for its government and that of its officers and committees. sec.31.10. Financial Assistance Application Form. The commission adopts by reference the application form and instructions for the Financial Assistance as outlined in the Texas Arts Plan as amended September, 1993. This document is published by and available from the Texas Commission on the Arts, P.O. Box 13406, Austin, Texas 78711. 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 14, 1995. TRD-9511795 Rhonda L. Hill Director of Finance and Administration Texas Commission on the Arts Effective date: October 5, 1995 Proposal publication date: August 8, 1995 For further information, please call: (512) 463-5535 26> Chapter 35. Texas Arts Plan 13 TAC sec.35.2 The Texas Commission on the Arts adopts by reference new sec.35.2, concerning the Addendum to the Texas Arts Plan which outlines the activities of the commission, with changes to the proposed text as published in the August 8, 1995, issue of the Texas Register (20 TexReg 5978). This section is being adopted to be consistent with the Texas Arts Plan as amended September, 1993. By adopting the new section, the commission will be able to inform the public of changes to select programs and procedures in the Texas Arts Plan. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Government Code, sec.444.009, which provide the Texas Commission on the Arts with the authority to make rules and regulations for its government and that of its officers and committees. sec.35.2. Addendum to the Texas Arts Plan. The commission adopts by reference the Addendum to the Texas Arts Plan. This document is published by and available from the Texas Commission on the Arts, P.O. Box 13406, Austin, Texas 78711. 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 14, 1995. TRD-9511796 Rhonda L. Hill Director of Finance and Administration Texas Commission on the Arts Effective date: October 5, 1995 Proposal publication date: August 8, 1995 For further information, please call: (512) 463-5535 26> Chapter 37. Application Forms and Instructions for Financial Assistance 13 TAC sec.37.23, sec.37.24 The Texas Commission on the Arts adopts by reference amendments to sec.37. 23 and sec.37.24, concerning the Application Forms and Instructions for the Arts In Education Program-Sponsors and the Texas Touring Arts Program-Company/Artist, with changes to the proposed text as published in the August 8, 1995, issue of the Texas Register (20 TexReg 5979). These sections are being adopted to be consistent with the Texas Arts Plan as amended September, 1993. By adopting the amendments, the commission will be able to better assist applicants in completing the financial assistance application forms. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Government Code, sec.444.009, which provide the Texas Commission on the Arts with the authority to make rules and regulations for its government and that of its officers and committees. sec.37.23. Application Form and Instructions for Arts In Education Program- Sponsors. The commission adopts by reference the application form and instructions for the Arts In Education Program-Sponsors as outlined in the Texas Arts Plan as amended September, 1993. This document is published by and available from the Texas Commission on the Arts, P.O. Box 13406, Austin, Texas 78711. sec.37.24. Application Form and Instructions for Texas Touring Arts Program- Company/Artist. The commission adopts by reference the application form and instructions for the Texas Touring Arts Program-Company/Artist as outlined in the Addendum to the Texas Arts Plan. This document is published by and available from the Texas Commission on the Arts, P.O. Box 13406, Austin, Texas 78711. 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 14, 1995. TRD-9511797 Rhonda L. Hill Director of Finance and Administration Texas Commission on the Arts Effective date: October 5, 1995 Proposal publication date: August 8, 1995 For further information, please call: (512) 463-5535 26> 13 TAC sec.37.25 The Texas Commission on the Arts adopts the repeal of sec.37.25, concerning the Applications Forms and Instructions for the Texas Touring Arts Program- Visual Arts, without changes to the proposed text as published in the August 8, 1995, issue of the Texas Register (20 Tex Reg 5978). This section is being adopted to be consistent with the Texas Arts Plan as amended September, 1993. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Government Code, sec.444. 009, which provide the Texas Commission on the Arts with the authority to make rules and regulations for its government and that of its officers and committees. sec.37.25. Application Forms and Instructions for the Texas Tour Arts Program -Visual Arts. 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 14, 1995. TRD-9511798 Rhonda L. Hill Director of Finance and Administration Texas Commission on the Arts Effective date: October 5, 1995 Proposal publication date: August 8, 1995 For further information, please call: (512) 463-5535 26> 13 TAC sec.37.26 The Texas Commission on the Arts adopts by reference an amendment to sec.37.26, concerning the Applications Forms and Instructions for the Texas Touring Arts Program-Fee Support, with changes to the proposed text as published in the August 8, 1995, issue of the Texas Register (20 TexReg 5979). This section is being adopted to be consistent with the Texas Arts Plan as amended September, 1993. By adopting the amendment, the commission will be able to conform with the new application procedures for the Touring Arts Program as reflected in the Addendum to the Texas Arts Plan. No comments were received regarding adoption of the amendment. The amendmnet is adopted under Texas Civil Statutes, Government Code, sec.444.009, which provide the Texas Commission on the Arts with the authority to make rules and regulations for its government and that of its officers and committees. sec.37.26. Application Form and Instructions for Texas Touring Arts Progam Fee Support. The commission adopts by reference the application form and instructions for the Texas Touring Arts Program Fee Support as outlined in the Texas Arts Plan as amended September, 1993. This document is published by and available from the Texas Commission on the Arts, P.O. Box 13406, Austin, Texas 78711. 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 14, 1995. TRD-9511799 Rhonda L. Hill Director of Finance and Administration Texas Commission on the Arts Effective date: October 5, 1995 Proposal publication date: August 8, 1995 For further information, please call: (512) 463-5535 26> TITLE 16. ECONOMIC REGULATION Part VIII. Texas Racing Commission Chapter 305. Licenses for Pari-mutuel Racing Subchapter B. Individual Licenses Specific Licensees 16 TAC sec.305.47 The Texas Racing Commission adopts an amendment to sec.305.47, concerning jockey and apprentice jockey license, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5469). The amendment is adopted to ensure that jockeys will be fit and ready to ride. The amendment requires a jockey to have a current physical examination at all times. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.7.02, which authorizes the commission to adopt rules specifying the qualifications and experience for occupational licenses. 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 September 15, 1995. TRD-9511848 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: October 15, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 794-8461 26> Chapter 315. Officials and Rules for Greyhound Racing Subchapter A. Officials Appointment of Officials 16 TAC sec.315.1 The Texas Racing Commission adopts an amendment to sec.315.1, concerning the required officials at greyhound racetracks, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5470). The amendment is adopted to ensure that pari-mutuel greyhound racing will be of the highest caliber and will be conducted with the utmost integrity. The amendment authorizes the executive secretary to rescind the approval of an official if the executive secretary makes certain determinations. One comment was received regarding the proposal. The commenter suggested that the amendment include some procedural safeguards. The commission disagrees with the comment because the amendment as proposed requires the executive secretary to make specific findings before the approval of an official may be rescinded. The commission finds that the required findings before recission provides sufficient procedural safeguards. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.3.07, which authorizes the commission to approve racetrack officials; and sec.6.06, which authorizes the commission to adopt rules relating to all aspects of the operation of pari- mutuel racetracks. 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 September 15, 1995. TRD-9511849 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: October 15, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 794-8461 26> Subchapter B. Entries and Pre-Race Procedures 16 TAC sec.315.111 The Texas Racing Commission adopts an amendment to sec.315.111, concerning schooling, with changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5470). The amendment is adopted to ensure that pari-mutuel greyhound racing will be of the highest caliber and will be conducted with the utmost integrity. The amendment changes the schooling requirements for greyhounds who come to a racetrack who have recently raced at another Texas track. Comments were received regarding the proposal from the Texas Greyhound Association and a pari-mutuel greyhound racetrack. Both commenters suggested the commission merely state that the racing judges may waive the schooling requirement if a greyhound has transferred from a Texas track. The commission disagrees with these comments on the grounds that authorizing the racing judges to waive the schooling requirement on a case-by-case basis will not promote uniformity of application of the rules. The pari-mutuel greyhound racetrack also suggested the need for the racing judges to be authorized to require additional schooling if it is necessary to protect the welfare of the greyhound and the betting public. The commission disagrees with the comment on the grounds that the racing judges are already authorized to require additional schooling at any time. The changes from the proposed text consists of a minor stylistic change which clarifies the number of days during which a greyhound must have raced to forego the schooling requirement. The amendment is proposed under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.3.07, which authorizes the commission to approve racetrack officials; and sec.6.06 which authorizes the commission to adopt rules relating to all aspects of the operation of pari-mutuel racetracks. sec.315.111. Schooling. (a)-(b) (No change.) (c) A greyhound that transfers from a racetrack outside of Texas must school at least once before it may start in a race other than a stakes or futurity race. A greyhound that transfers from a Texas racetrack may start in a race without additional schooling if the greyhound has raced in the ten-day period preceding the race. (d)-(g) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on September 15, 1995. TRD-9511850 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: October 15, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 794-8461 26> Part IX. Texas Lottery Commission Chapter 401. Administration of the State Lottery Act Subchapter A. Procurement 16 TAC sec.401.101 The Texas Lottery Commission adopts an amendment to sec.401.101, concerning the lottery procurement procedures, without changes to the proposed text as published in the July 18, 1995, issue of the Texas Register (20 TexReg 5121). The section, as amended, makes the procurement procedures set out in the rule consistent with the procurement procedures set out in Texas Government Code, Chapter 466. The section, as amended, sets out the procurement procedures to be used by the Texas Lottery in procuring goods and services. No comments were received regarding the amendment of the section. The amendment is adopted under Texas Government Code, sec.466.015, which provides the Texas Lottery Commission with the authority necessary to administer the State Lottery Act, Texas Government Code, Chapter 466. 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 September 13, 1995. TRD-9511761 Kimberly L. Kiplin General Counsel Texas Lottery Commission Effective date: October 4, 1995 Proposal publication date: July 18, 1995 For further information, please call:(512) 323-3791 26> Subchapter D. Lottery Game Rules 16 TAC sec.401.308 The Texas Lottery Commission adopts new sec.401.308, concerning on-line game rules relating to a new on-line game, "Cash 5", without changes to the proposed text as published in the July 18, 1995, issue of the Texas Register (20 TexReg 5123). The new section will generate additional revenue for the state of Texas through the sales of the new on-line game's tickets. The new section will provide specific game details and requirements for the Texas Lottery's on-line game "Cash 5". No comments were received regarding adoption of the new section. The new section is adopted under Texas Government Code, sec.466.015, which provides the Texas Lottery Commission with the authority to adopt rules governing the type of lottery games to be conducted. 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 September 13, 1995. TRD-9511760 Kimberly L. Kiplin General Counsel Texas Lottery Commission Effective date: October 4, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 323-3791 26> TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 401. System Administration Subchapter B. Interagency Agreements 25 TAC sec.401.49 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeal of sec.401.49, concerning memorandum of agreement: community resource coordination groups for youth, without changes to the proposed text as published in the July 28, 1995, issue of the Texas Register (20 TexReg 5587). The section is replaced by new sec.401.49 dealing with similar matters which is adopted contemporaneously in this issue of the Texas Register. No public hearing was held concerning the proposal. No written comments were received. The repeal is adopted under the Texas Health and Safety Code, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority, and with Texas Human Resources Code, sec.41.0011, which requires the MOU to be adopted by rule. 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 15, 1995. TRD-9511879 Ann Utley Chair Texas Department of Mental Health and Mental Retardation Effective date: October 6, 1995 Proposal publication date: July 28, 1995 For further information, please call: (512) 206-4516 26> The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.401.49, concerning memorandum of understanding (MOU) on coordinated services to children and youths, without changes to the proposed text as published in the July 28, 1995 issue of the Texas Register (20 TexReg 5587). The new section replaces existing sec.401.49 dealing with similar matters which is repealed contemporaneously in this issue of the Texas Register. The new section adopts by reference rules of the Texas Department of Protective and Regulatory Services (TDPRS) in sec.736.701 (relating to Memorandum of Understanding for Coordinated Services to Children and Youths). The adopted text of the TDPRS rule was published in the March 10, 1995, issue of the Texas Register (20 TexReg 1765). The TDPRS rule constitutes a memorandum of understanding (MOU) between TDPRS, TDMHMR, Texas Commission for the Blind, Texas Department of Health, Texas Department of Human Services, Texas Education Agency, Texas Interagency Council on Early Childhood Intervention, Texas Juvenile Probation Commission, Texas Rehabilitation Commission, and Texas Youth Commission as required by the Texas Human Resources Code, sec.41.0011. The MOU provides for the implementation of a system of community resource coordination groups to coordinate services for children and youths who need services from more than one agency. The statute further requires the signatory agencies to regularly review and update the MOU and to adopt all revisions by rule. No public hearing was held concerning the proposal. Written comments were received from Riceland Regional Mental Health Authority in Wharton, Texas, and the Texas Alliance for the Mentally Ill (TEXAMI). A commenter questioned how coordination groups could "clarify" the financial and service responsibilities of a mental health authority (MHA) as described in the MOU at sec.736.701(c)(3) when those responsibilities are outlined in the MHA's contract with the department. The department responds that the "clarification" occurs on a case-by-case basis when a child or youth receives services from several agencies and some of those services are duplicated. As the language specifies, "whenever necessary in particular cases, " the coordination group will clarify which agency is to provide the duplicated service, for how long, and how it is to be coordinated. Each local agency involved is represented on the coordination group, so the MHA would be involved in decisions affecting one of its consumers. The same commenter requested a clarification of the term "cost-sharing" as used in the MOU at sec.736.701(e), questioning whether the MHA is expected to set aside money for services not provided by the MHA. The commenter stated that a coordinating group could not tell the MHA to share costs for services not required in the MHA's contract with the department, and that if the services being suggested by the coordinating group are core services needed by the consumer then the matter is an issue between the MHA and the department. The department responds that the referenced subsection clearly specifies that costs are to be shared by agencies who are part of the coordination group when the services are within the agencies' financial capabilities and statutory responsibilities. Therefore, the MHA would not be required to set aside money for services which it does not provide. In fact, if a child or youth served by the MHA were to need more extensive services than the MHA could provide and that child or youth was eligible for similar or related services from another agency, the MHA could request that the coordination group consider that case. The MOU clearly does not permit a coordination group to require an agency to provide services which are not within either its financial capabilities or its statutory responsibilities. The same commenter questioned how the private sector groups serving on the coordinating group could have the same status as public agencies, as required by sec.736.701(h) of the MOU. The commenter stated that private agencies have no statutory responsibilities and it is highly doubtful that they will share their organizations' financial capabilities, and further suggested that private agencies would bring cases to the coordination group when their resources were exhausted and expect the public agencies to pick up the provision of services. The department responds that coordination groups have been operating effectively with private agency involvement for several years since the original MOU-of which this document is a revision-was adopted in 1988. The department reiterates that coordination groups cannot require a public agency such as an MHA to provide services which are not within either its financial capabilities or statutory responsibilities. The MHA, therefore, could not be required to provide services to a child or youth if there were no funds to do so and/or the assistance requested was not a part of the MHA's service array or within its statutory authority, e.g., the child or youth was not a part of the priority population. Another commenter stated that although the MOU acknowledges the importance of the family, it fails to encourage the inclusion of the family in planning of the services for the child or adolescent. The department acknowledges the lack of such language, noting that nine other agencies were party to the development of the MOU. The department notes, however, that various policy documents for which this agency is solely responsible, including the strategic plan, numerous rules, community standards, board policy manual, and the quality of life principles, reiterate department's commitment to involving both the consumer and the consumer's family, as appropriate, in the planning of services. The new section is adopted under the Texas Health and Safety Code, sec.532. 015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority, and with Texas Human Resources Code, sec.41.0011, which requires the MOU to be adopted by rule. 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 15, 1995. TRD-9511880 Ann Utley Chair Texas Department of Mental Health and Mental Retardation Effective date: October 6, 1995 Proposal publication date: July 28, 1995 For further information, please call: (512) 206-4516 26> Chapter 403. Other Agencies and the Public Subchapter B. Charges for Community-Based Services 25 TAC sec.sec.403.41-403.53 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.sec.403.41-403.53 of a new subchapter, concerning charges for community- based services. Sections 403.46, 403.48, 403.50, and 403.51 are adopted with changes to the proposed text as published in the July 18, 1995, issue of the Texas Register (20 TexReg 5136). Sections 403.41-403.45, 403.47, 403.49, 403.52, and 403.53 are adopted without changes to the proposed text and will not be republished. Language was added to sec.403.45(c)(1) clarifying that the person's interdisciplinary or multidisciplinary team must determine that the person's failure to produce financial documentation is related to the person's mental illness or mental retardation. Language was added to sec.403.46(a) clarifying that when two or more members of the same family are receiving services, the provider may bill the family as a unit if a family member is identified as the payor of services. Subsection (c) was expanded to require a copy of the financial assessment form to be sent to the person. Language was added requiring the person to be notified in writing that he/she may discuss concerns regarding information in the written notification with his/her interdisciplinary or multidisciplinary team. Language was changed in sec.403.48(c) to direct the local MHMR authority to bill third-party payors first, then subtract the third-party payment from the person's monthly services charge, leaving the remaining balance to be paid by the person, up to the person's maximum monthly fee. Language was also added which directs local MHMR authorities to charge a person in accordance with any contract the local MHMR authority may have with the person's insurance company or HMO. In subsection (d), language was added clarifying "itemized list" to include day and type of services in the statement. Language was also added to allow for certain types of billing when required by federal regulations and to clarify the conditions and requirements under which a person would not be charged or billed for services. A subsection was added requiring receipts for cash payments. In sec.403.50, the term "procedures" was changed to "content" for accuracy. In sec.403.51, language was added exempting the requirement in a crisis or emergency. The Monthly Ability-to-Pay Fee Schedule (Exhibit A) was revised to reflect the 1995 Federal Poverty Guidelines. A public hearing was held on August 2, 1995, at the TDMHMR Central Office in Austin, Texas, to accept oral and written testimony on the proposed new sections. Written and/or oral testimony was provided by Brad Rzepniewski, Tarrant County MHMR Center, Fort Worth; Cynthia Hopkins, Texas Mental Health Consumers, Austin; and two consumers of community-based mental health services, Fort Worth. During the public comment period written comments were also received from Burke Center, Lufkin; Tarrant County MHMR Center, Fort Worth; Andrews Center, Tyler; Dallas County MHMR Center, Dallas; The Arc of Texas, Austin; Advocacy, Inc., Austin; Texas Advocates, Austin; Disability Policy Consortium, Austin; Texas Planning Council for Developmental Disabilities, Austin; Texas Mental Health Consumers, Austin; Mental Health Association of Tarrant County, Fort Worth; Montgomery County Alliance for Mentally Ill, Conroe; Erath Mental Health Consumers, Stephenville; Lufkin Alliance for the Mentally Ill, Lufkin; Temple Area Alliance for the Mentally Ill, Temple; Tarrant Alliance for the Mentally Ill, Fort Worth; Alliance for the Mentally Ill/Dallas, Inc., Dallas; Gulf Coast Alliance for the Mentally Ill, Alvin; Panhandle Alliance for the Mentally Ill; El Paso Alliance for the Mentally Ill, El Paso; five advocates for persons with mental retardation or mental illness; and 137 private citizens. Seventeen advocacy organizations, five advocates, and 137 private citizens from all areas of the state were overwhelmingly in favor of the proposed rules and the fee schedule. The commenters stated that persons with an ability to pay should pay for services but indigent persons should not be charged. Texas Mental Health Consumers and Gulf Coast AMI stated that charging indigent persons would only alienate them and drive them away from seeking much-needed services. One of the commenters stated that the only reason her homeless son was currently recovering from mental illness was because he was not charged for services. Texas Mental Health Consumers (TMHC) stated that while it recognized the public mental health system is underfunded, it does not believe that underfunding should affect billing policies for indigent consumers who are being served by the department. The organization noted that charges for services are a barrier that only compounds consumers' problems because lack of resources is the same reason consumers can't get services in the private sector. TMHC wanted to dispel the myth that consumers feel "dignified" when deciding whether to walk to the clinic and pay for their medication or to put $.50 in the bus meter and then not be able to afford their medication. Consumers find nothing dignifying about going to their parents and asking for money to pay for their mental health care or having to borrow money for necessities while putting their money toward treatment. Texas Mental Health Consumers explained that the fee schedule was based on 150% of the Federal Poverty Guidelines to allow consumers to break the "minimum wage barrier" before being charged for services. The organization further explained that family income is only considered for minor consumers to prevent families from being charged for services for their adult children. TMHC strongly disagrees with the notion that the department will foster an unhealthy entitlement attitude in the consumers it serves with this rule. Texas Advocates believed the fee schedule was fair and supported no additional fees or co-payments for medication unless approved by the federal government. The Disability Policy Consortium felt the fee schedule would help assure that persons with little or no income would not be unfairly charged or denied services if they lacked a source of third-party payment. The Texas Planning Council for Developmental Disabilities believed the rule will ensure that consumers across the state are treated equitably and are not denied access or discriminated against based on their ability to pay. The Council also supported the inclusion of medication in the fee schedule. Erath Mental Health Consumers stated that for an indigent consumer, any fee imposed can become an insurmountable barrier to overcome, which escalates anxiety. The Mental Health Association of Tarrant County stated that a uniform fee schedule for all MHMR centers was an optimal goal. The organization stated that experience and literature have shown the value of paying even a nominal fee for service, but recognizes that not everyone will be able to pay a nominal fee, or that a nominal fee may place a hardship on some consumers' already limited means. The organization strongly agrees that no eligible consumer should be denied services due to an inability to pay. Advocacy, Inc. submitted comments that chronicled the events which led to the proposal of this subchapter, which are: the fee for service statute was first enacted in 1985; the department did not attempt to develop a statewide uniform fee collection policy until 1991; the 1991 policy only required community services divisions of state facilities to comply, giving community MHMR centers the option of adopting the department's policy or developing an alternate policy that was consistent with the department's; community MHMR centers that developed an alternate policy were instructed to submit their policy to the department for review to determine if the centers' policies were consistent with the department's policy; only seven of 35 community MHMR centers submitted alternate policies; in addition to the seven community services divisions of state facilities, approximately ten community MHMR centers adopted the department's policy; the department never reviewed the seven alternate policies submitted, failing to comply with its own directive; as a result of the department's failure to implement a uniform fee collection policy, indigent consumers have been charged for services and a lawsuit was filed against a community MHMR center and the department. Advocacy, Inc. detailed the fee collection actions taken against three consumers of the community MHMR center named in the lawsuit. The action taken by the center was inconsistent with the fee collection policy of the department. Advocacy, Inc. stated it conducted an informal analysis of 29 community MHMR centers that revealed a wide deviation from the department's policy by those centers choosing to develop an alternate policy. Advocacy, Inc. believed it demonstrated the necessity of having a prescribed training program to prevent community MHMR centers from adopting the policy in letter but circumventing the spirit and intent of the policy through their own in-house training procedures. Advocacy, Inc. commented that the proposed rules represented a compromise which balanced the interests of consumers and community MHMR centers and are a product of extensive negotiations with the Texas Council of Community MHMR Centers, Advocacy, Inc., Texas Mental Health Consumers, and Texas Alliance for the Mentally Ill. The following compromises were made in order to reach a consensus over the proposed rules: a sliding fee schedule based on 150% of the federal poverty guidelines, rather than 200% which is the department's current policy; increased maximum monthly fees for consumers with the ability to pay; increased consumer responsibility in providing documentation to verify income; inclusion of medications under the fee schedule; and co-payments for medications if Medicaid waiver is approved. Advocacy, Inc. stated that the proposed rules are necessary to prevent community MHMR centers from denying services to indigent consumers who lack a source of third-party payments. The organization stated that unlike the private mental health system, the public sector cannot be driven by whether the consumer has the money or the insurance to pay for services. The organization commented that it is imperative that the department establish and enforce a uniform fee for service policy that does not discriminate against persons who lack the ability to pay, adding that the whole community mental health system will be subverted if centers are allowed to select clients to serve based on whether or not they have access to Medicaid or private insurance. This rule would ensure that community MHMR centers serve persons with severe and persistent mental illness whether or not they have Medicaid or private insurance. One commenter who is a clinician by training, the coordinator of consumer accounts and benefits at an MHMR authority, and a family member of a consumer of services, was pleased to see a recognition of the need to eliminate charges for consumers without an ability to pay, believing it was always clinically inappropriate to bill a consumer with no income. The commenter stated that it was much more realistic to recognize the consumer's inability to pay and allow him/her to receive the needed services with dignity. As the coordinator of consumer accounts and benefits at a large MHMR authority, the commenter stated it would be much more appropriate and efficient from a business perspective to write off the cost of the service for an indigent consumer at the time of service, adding that to carry a false accounts receivable balance that has no likelihood of ever being collected gives a false impression of an ability to offset the expense of operations to the public. An advocate and a family member of a consumer of services stated that as a tax- payer and supporter of the public system, the commenter supported the right of (and need for) community centers to be able to collect fees for services when fees are set consistently and reasonably. The commenter believed that the integrity of the public system will only be retained when those persons who have the least amount of support have equal access to public services. One commenter, a consumer of services from a local MHMR authority, expressed appreciation that when the rule goes into effect she will no longer have to pay for services. Her current income is $646 per month and she is being charged a monthly fee. The commenter also stated that whenever she wants a copy of any form she filled out for the community local MHMR authority, she must request it in writing and pay $.75 per page. The department responds by requiring the local MHMR authority to provide each person with a copy of his/her financial assessment form. One commenter requested language be modified so that only one member of a family would be billed when more than two members of the family are receiving services. The department responds that this was already allowed, but added language to clarify the intent. The same commenter believed sending a statement with "an itemized list of all services received" would result in lengthy statements (sometimes two inches thick), and suggested "summary of all services received" as replacement language. The department responds by adding language to clarify the information to be included. The same commenter requested that language in sec.403.48(c) regarding third- party coverage be replaced with: "If a person has third-party coverage, then the local MHMR authority will bill the third-party payor. The local MHMR authority will subtract the third-party payment from the person's monthly service charge, and the remaining balance, if any, is what the person will pay up to the person's maximum monthly fee." The department responds by using the commenter's suggested language with additional language to ensure billing only takes place if the local MHMR authority has an assignment of benefits from the person. The commenter requested that language be added so that local MHMR authorities with managed care contracts (with a capitated rate) could charge rates below the Medicaid rates to non-Medicaid persons. The department responds that capitated rates and fees for service are two very different payment systems. This subchapter applies only to department-funded services provided to the priority population and addresses only the fees for service payment system; it would be inappropriate to refer to another type of payment system. This subchapter does not preclude an MHMR authority from entering into managed care contracts with other entities with capitated rates. The same commenter expressed concern about being able to implement the changes in the computerized billing system by the time the rule became effective. The department responds by delaying the effective date of the subchapter to November 1, 1995, to allow adequate time for billing implementation and staff training. Two commenters expressed concern over third-party payments being used to "pay for" the person's maximum monthly fee, and asked what the legal implications were of using an insurance payment to pay for the person's insurance co-payment. The department responds by changing the language to require billing of third- party payors first, then subtracting the third-party payment from the person's monthly service charge, and charging the remaining balance to the person, up to the person's maximum monthly fee. Two commenters believed that the fee schedule, when used for persons with third-party payors, was too generous with taxpayers' dollars. The department responds that the change in third-party payment language allows for the person to pay up to his/her maximum monthly fee in addition to his/her third-party payments. One commenter requested adding the requirement to provide receipts for cash payments. The department responds by adding the requirement. One commenter wanted to know how the principle "paying for services rendered reinforces the role of the persons served as a customer, having the right and responsibility to influence the provision of those services" had any effect on someone who has Medicaid, and what was the role of the Medicaid-eligible person or his/her guardian. The department responds that Medicaid pays on behalf of the person, just as private insurance pays on behalf of the person; therefore, the person is considered to have "paid" for his/her services, giving the person or guardian, as appropriate, "the right and responsibility to influence the provision of those services." The same commenter requested adding the requirement of the person to submit a copy of his/her last tax return for financial documentation of annual or monthly gross income/earnings. The department responds that a copy of the person's most recent tax return would be sufficient to document income, but the department recognizes that not all consumers have access to their tax returns; therefore, the department would accept other verification, e.g., W-2 form, Statement of Wages from employer, recent pay check stub, etc. Two commenters from a community MHMR center suggested that the department substitute its center's fee schedule for the fee schedule that was proposed. The department responds that the fee schedule suggested by the commenter presumes no one has an inability to pay. The fee schedule adopted by the department would begin charging $23 a month when the person had an annual income of $11,190. The fee schedule suggested by the commenter would begin charging $10 a month when the person had an annual income of $368. The department cannot support or endorse a fee schedule which charges one-third of a person's income for mental health or mental retardation services. Several commenters from the same community center claimed that the proposed rules would drastically cut their center's revenue and probably result in employee layoffs. The commenter stated that the community center recently implemented a local fee policy and fee schedule which "is both affordable to the consumer and allows us to collect revenues locally to supplement funding." Based upon the projected revenue from its local fee schedule, the commenter reported that the center would lose $484,020 of budgeted revenue and would incur an additional $255,583 in expenses for fiscal year 1996. The commenter further stated that implementing the proposed rules would result in 85% of the center's consumers paying nothing for services/medications, encouraging overutilization of services and a lack of consumer investment in the treatment process. The commenter claimed clinical research and experience shows that payment for services is likely to increase a consumer's investment in treatment and improve compliance. The department responds that this community center and the department have differing views of what constitutes an ability to pay. The department notes that the majority of consumers in the priority population are poor and do not have an ability to pay for services. Charging consumers with an inability to pay does not result in payment, but rather it heightens consumer anxiety and can result in them not seeking much-needed services. Additionally, the department notes that it does not distinguish between "services" and "medications" when charging for services. The provision of medication is included as a community-based service in statute. One person receiving mental health services from the community center mentioned in the previous paragraph testified at the public hearing that she could not afford what she was being charged for services. The commenter stated that she was on a fixed income of $419 a month. Her rent was $388 a month and she could not afford all of her other bills as well as a co-payment for medication. Another person receiving services from the same center testified that if consumers cannot afford to pay for their services then they don't know where to turn. The commenter said that the center's fee schedule was making it very difficult for consumers like himself. Texas Mental Health Consumers stated that research generated by the department showed why consumers failed to follow-up at clinics, failed to follow through with treatment, and failed to take their medications and it wasn't because they receive the service for free. The reasons cited were: (1) people couldn't afford the co-pay, (2) they weren't treated with dignity and respect, (3) they didn't like the side effects of their treatment, and (4) they didn't have choices about the treatment they received. One commenter, an advocate and family member of a consumer of services from the same community center, expressed concerns about access to mental health services for an uninsured consumer and appreciated the department recognizing the necessity of treating people who cannot pay. The commenter also supported reasonable charges for those have an ability to pay. The commenter agreed with the fee schedule and believed that the out-of-pocket fees to her family member, who is insured by an HMO, is within only a few dollars of the limit on the proposed fee schedule for the family member's household income. The new sections are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. sec.403.46. Determination of Ability to Pay. (a) Maximum monthly fee. A maximum monthly fee is established for persons who are determined as having an ability to pay. The maximum monthly fee is based on the person's financial assessment and calculated using the Monthly Ability-To- Pay Fee Schedule, referenced as Exhibit A, copies of which are available by contacting TXMHMR, Policy Development, P.O. Box 12668, Austin, Texas 78711-2668. This calculation is based on the number of family members, annual gross income reduced by extraordinary expenses paid during the past 12 months or projected for the next 12 months. No other sliding scale may be used. If two or more members of the same family are receiving services, then the family's maximum monthly fee is divided equally among those members, unless the service provider is able to bill the family as a unit and a family member is identified as the payor of services. (b) Inability to pay. A maximum monthly fee of zero is established for persons who are determined as having an inability to pay, based on the person's financial assessment and calculated using the Monthly Ability-To-Pay Fee Schedule. No other minimum fee (e.g., co-payment) may be assessed, unless a federal waiver to allow co-payments by Medicaid is approved. (c) Notification. Written notification is provided to the person that includes: (1) the determination of whether the person has an ability or an inability to pay; (2) a copy of the financial assessment form that is signed by the person and a copy of the Monthly Ability-to-Pay Fee Schedule, with the applicable areas indicated (i.e., annual gross income, number of household members, etc.); (3) the amount of the person's maximum monthly fee, if any; (4) a statement that the person may discuss with his/her interdisciplinary or multidisciplinary team any concerns the person may have regarding the information contained in the written notification; and (5) a statement that the person may voluntarily pay more than their maximum monthly fee. sec.403.48. Billing Procedures. (a) Monthly services charge. All services provided during a month, and the rates for those services, are listed on the person's monthly services charge. If the total charges: (1) exceed the person's maximum monthly fee, then the charges are discounted to equal the maximum monthly fee and the person is billed the maximum monthly fee; (2) are less than the person's maximum monthly fee, then the person is billed for the charges listed on the monthly services charge. (b) Medicaid recipients. For Medicaid recipients, the Medicaid program is billed for Medicaid-covered services rendered according to federal and state regulations and procedures. Medicaid reimbursement is considered full payment. (c) Third-party coverage. If a person has third-party coverage and executes an assignment of benefits, then the local MHMR authority will bill the third-party payor. The local MHMR authority will subtract the third- party payment from the person's monthly service charge, and the remaining balance, if any, is what the person will pay up to the person's maximum monthly fee. Charges to a person must be made in accordance with any contract the local MHMR authority may have with the person's insurance provider. (d) Statements. (1) Persons who have been determined as having the ability to pay are sent monthly or quarterly statements that include: (A) an itemized list, at least by date and by type, of all services received; (B) the standard rate for each service; (C) the total charge for the period; (D) the amount that is being discounted, if any; and (E) the amount to be paid, if any. (2) Statements may not be sent to persons who have been determined as having an inability to pay, except when required by federal regulations. (3) When the persons's interdisciplinary or multidisciplinary team has determined that being charged for services and receiving statements will result in a reduction in the functioning level of the person or the person's refusal or rejection of the needed services, then charges will cease and statements will no longer be sent. This determination requires clinical documentation and must be reassessed at least annually by the team. (e) Receipts. Receipts must be provided for all cash payments. sec.403.50. Training. All professional and support staff who are involved in implementing or explaining the content of this subchapter must annually demonstrate competency in accordance with a prescribed training program developed by the department, in consultation with local MHMR authorities and consumer representatives. sec.403.51. Information for Persons. Persons must be provided department- approved information on the department's policy of charges for community-based services contained in this subchapter prior to entry into services except in a crisis or emergency. 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 15, 1995. TRD-9511873 Ann Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: November 1, 1995 Proposal publication date: July 28, 1995 For further information, please call: (512) 206-4516 26> Chapter 408. Standards and Quality Assurance Subchapter B. Mental Health Community Services Standards 25 TAC sec.sec.408.21-408.25 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.sec.408.21-408.25. Section 408.21 is adopted with changes to the proposed text as published in the August 4, 1995, issue of the Texas Register (20 TexReg 5850). Sections 408.22-408.25 are adopted without changes and will not be republished. Figure 1, the 1995 Mental Health Community Services Standards, is revised on adoption to clarify and reorganize standards and definitions consistent with program structure, law, rules, and performance measures of the Legislative Budget Board. Many changes are made to clarify intent. An introduction, which will be proposed for public comment in a subsequent issue of the Texas Register, provides more information concerning the minimum array of mental health services, core services, types of standards, and accountability for ensuring compliance. In Chapter 1, Requisite Standards, Standard 1.3.R is modified to include the clarifying phrase "such as Hepatitis B." The word "Appropriate" is deleted from Standard 1.4.R as unnecessary. Standard 1.11.R is revised to remove language that would have allowed delays of immediate assessment of persons in crisis. Standard 1.17.R is revised to require constant observation of an individual in mechanical restraint. Standard 1.20.R adds social workers and psychologists to the list of staff who must maintain evidence of current certification/licensure. In Standard 1.21.R, the requirement to comply with the Americans with Disabilities Act (ADA) is broadened to reference all local, state and federal laws. In Chapter 2, Rights and Responsibilities, confusing language in Standard 2. 2.O is clarified. Standard 2.8.P is revised to note that research must be conducted in accordance with applicable state and federal laws. Standard 3.4.P in Chapter 3, Information and Accessibility, is modified to more clearly state expectations concerning cultural competency. Sentence structure in Standard 3.5.P is corrected. In Chapter 4, Records Administration, Standard 4.1.P is revised to note that the record system should be nonduplicative. Standard 4.2.P is modified to reference the purging of records. Standard 4.4.P is modified to reflect that the role of the records committee is to review data that results from clinical records review by records administrators. In Chapter 5, material in Standard 5.4.P has been reorganized. In Chapter 6, Quality Improvement, capitalization is corrected in Standards 6.1.0 and 6.4.P. Standard 6.4.P is revised to include reference to departmental rules and other applicable documents listed in the current edition of the department's Policy News and Comment. Standard 6.5.P is added to require the mental health authority to have a utilization management program. In Standard 7.1.P of Chapter 7, Special Treatment Procedures, the requirement that aversive or highly restrictive procedures comply with departmental rules governing behavior therapy has been changed to require approval by the commissioner or the commissioner's designee. In Chapter 8, Environment, Standard 8.5.P is modified to add monitoring as a component of an infection control program. In the first bullet, language is added to reference infections. The title of Chapter 9 is changed from "Screening and Crisis Services" to "Crisis Services." Standard 9.5.P is revised to require the continuity of services staff person to notify other treatment staff when a crisis contact occurs. In Chapter 10, Assessment, Treatment and General Medical Care, the definition of "Medication-related Services" has been changed to include "provision of medication" as an element of this service. Standard 10.2.O is revised to delete reference to increasing coping skills as an indicator of symptom management because the terminology is vague and undefined. A more descriptive standard addressing the same issues is added as Standard 10.5.O, concerning improved functioning. Subsequent standards are renumbered. In new Standard 10.7.P, it is clarified that the referenced plan is a treatment plan. In new Standard 10.10.P, the third bullet, "substance usage" is deleted. In the fourth bullet, new language is added concerning determination of co-occurring substance abuse and mental illness disorders. The ninth and tenth bullets have been relocated to Standard 10.11.P. In new Standard 10.12.P, language changes address individual functioning and require that the treatment plan from the facility, which may be used, must be reviewed within 14 calendar days of the date of discharge or absence with assignment. In new Standard 10.13.P, language is added referencing the diagnosis and level of functioning as elements of the treatment plan which are reviewed. In Chapter 11, Services for Children and Adolescents, the definition of "Family Support Services" is altered to add classes/workshops as elements of the service. Language concerning case management is updated. Language concerning respite services is revised to be consistent with the language used in Chapter 13, Respite Services. In Chapter 12, Supports to Individuals, the definition for "Consumer Advocacy Network" has been extensively revised. In the definition of "Peer Support Services," examples are added. References to definitions and standards relating to socialization services are moved to Chapter 14. Definitions and standards related to supported housing are moved to Chapter 16. In Chapter 14, Psychosocial Rehabilitation Services, the definition for "Skills Training Services" is extensively revised. In Chapter 15, Continuity of Services, and throughout the standards, the definition of "case management services" is modified to correspond to the department's current definition for this service. Other minor language changes are made. Chapter 16, Housing and Residential Services, the definition of "Treatment/Training Residences" is revised to reference a specific timeframe. The definition of "Assisted Living Services" is also revised. Standards 16.1.O and 16.2.O are revised to reference satisfaction with support services and services for living environments of choice. New Standard 16.3.P is added. In the glossary to the standards, the following terms have been revised to be consistent with departmental definitions already in use: "aversive procedures"; "continuity of services staff person"; "self-assessment for quality"; and "treatment plan." The term "qualified mental health professional (QMHP)" has been changed to "qualified mental health professional-community services (QMHPCS)" to differentiate it from the term that is used in inpatient mental health settings. New definitions are added for "immediate crisis screening/QMHP assessment" and "utilization management." The definition of "supported housing" is deleted because it appears in Chapter 16. A public hearing was held on August 21, 1995, at TDMHMR Central Office in Austin, and testimony was provided by Mary Dees and another individual who also provided written comments. Written comments were received from Advocacy, Inc., Austin; Texas Mental Health Consumers, Austin; the Texas Alliance for the Mentally Ill, Austin; the National Association for Social Workers, Austin; and the Persons Experiencing Severe and Persistent Mental Illness Task Force, National Association of Social Workers/Texas, Dallas. Comments were received from the Texas Council of Community Mental Health and Mental Retardation Centers, Inc., Austin, and from the following mental health authorities which are community centers: Burke Center, Lufkin; the Center for Health Care Services, San Antonio; Lubbock Regional Mental Health Mental Retardation Center, Lubbock; and MHMR Services for the Concho Valley, San Angelo. Comments were received from one individual. Comments were also received from mental health authorities that are community- based services divisions of state hospitals and other employees. The mental health authorities made suggestions for revisions to the wording of specific standards to clarify intent, and many of these commenters' suggestions were incorporated in the adopted standards document. A comprehensive listing of recommendations for technical changes and the department's specific response to them is available from the department by writing or calling the Office of Policy Development, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, (512) 206-4570. Additional comments are discussed below. A number of comments were received after the closing date for the public comment period. These comments will be considered in the formulation of a subsequent submission to the to the Texas Register. A commenter stated that the standards need to reflect governance issues and should more adeptly define the outcomes expected of local boards of trustees, which should be audited. The department responds that it is in full agreement with the commenter and that in amendments to this new subchapter, new standards will address governance issues. Another commenter requested that language be added to ensure that mental health authorities comply with the Texas Health and Safety Code, sec.534.004(b), which governs the appointment of boards of trustees. The department responds although it is unnecessary to add such language to the standards when appointments to boards of trustees are mandated by state statute, a number of issues related to governance will be included in new standards which will be submitted in a subsequent issue of the Texas Register. The commenter is encouraged to review and comment on the new standards when they are proposed. A commenter supported the attempts of the department to increase accountability of services and to create shorter timeframes for the completion of clinical activities. Two commenters expressed concern that the standards relied heavily upon input from consumers and family members regarding their satisfaction with services but did not provide an avenue for gathering the information. The commenters suggested the department require mental health authorities to conduct consumer/family satisfaction surveys and, to ensure consistency in collecting such data, suggested that the department develop a uniform consumer/family satisfaction survey form and procedures for authorities to implement. The department responds that the development and improvement of methods of evaluating services is a priority for the department. A commenter stated that the standards fail to delineate the specific expectation for each service as well as the designation and emphasis of those which are core services as did the previous standards. The commenter stated that the previous standards clearly conveyed more information about the direction and goal of a particular service. The department responds that the new standards will continue to be refined over time. The commenter stated that in the past, enforcement of consequences was very difficult to address. The commenter supported strong consistent consequences which reflect directly on the contract of the mental health authority and impact funding when lack of compliance occurs. The department responds that the standards will play an important role in ensuring quality services are delivered, monitored, and improved. A commenter questioned why the department was revising the standards prior to the completion of major changes in the reorganization of services. The department responds that it is required by the Texas Health and Safety Code, sec.534.058(c) to review the standards every two years. As TDMHMR moves to a managed care system of service delivery and administration, the provider network will expand to include new providers who are not familiar with the TDMHMR system, the updated standards can provide a valuable grounding and link to the department's values and expectations. A commenter was concerned that the standards do not identify a minimum array of services. The department responds that an introduction to the standards that addresses this need will be proposed in a subsequent issue of the Texas Register. The service array has also been included in the Fiscal Year 1996 performance contract. A commenter called for more specificity and prescriptiveness in the standards. The department responds that it has attempted to balance the specificity and prescriptiveness of nationally accepted standards for mental health services and managed care plans, such as the standards of the Joint Commission, NCQA, and the Health Care Financing Administration, with the department's desire to move toward outcome-based standards. By retaining process standards for services requiring that level of specificity to ensure the health, safety, and rights of individuals, outcome and process standards can form an effective system. A commenter questioned the statement in the preamble to the proposal of the subchapter that stated that the public benefit is "the way in which the standards promote the critical evaluation of effects that mental health services have on people receiving the services." The commenter requested a copy of the analysis methodology. The department responds that it is currently developing a system of evaluation and as products relating to methodology become available, all MHAs will be provided copies. A commenter noted that the standards do not give sufficient attention to issues related to persons dually diagnosed with mental illness and chemical dependency/substance abuse. The department responds by adding Standard 10.9.P. A commenter urged the department to work with the Quality Services Council and the Office of Monitoring and Compliance to develop outcome measurements as expeditiously as possible. The department responds that the development of outcome measures will be a priority. A commenter recommended that the standards be based solely on person-based outcomes and that process standards be eliminated entirely. The commenter stated support for the increased accountability to consumers, families, and communities and stated that self-assessments are a valuable tool, noting the desire that self-assessment be reflective of people-based outcome measures. The department responds that it has carefully selected a limited number of areas in which process standards are necessary to ensure patient health, welfare, and safety. The MHA is required to conduct a self-assessment, although the type is not prescribed. A commenter noted that all applicable rules and laws must be adhered to and there is unnecessary to cite them individually in the standards document. Another commenter expressed the opinion that the rules of the department should always be cited unless they clearly do not apply to the MHA setting. The department responds that it cites applicable rules in an effort to produce a user-friendly document in which all rules and standards related to service delivery can be identified easily. A commenter stated that as TDMHMR reorganizes and develops an approach based on managed care concepts, it must make greater efforts to educate consumers and family members and to include them in treatment and system development. The commenter noted that the standards are a key resource for individuals who want to participate in the development and oversight of their mental health care. The current edition of the standards is not as detailed as its predecessor and therefore is more difficult for system users to understand. The commenter suggested that rules be referenced as often as possible and that any inconsistencies between rules and standards be eliminated. The commenter gave as an example of inconsistency Standard 1.16.R, which allows for a physician's order for restraint to be obtained "prior to, or as soon as possible following, implementation of the procedure." The commenter notes that the rule requires the order to be obtained prior to or within an hour of implementation. The department responds that inconsistencies such as this one will be corrected in a subsequent submission to the Texas Register. One commenter expressed concern that in several areas (Standards 1.1, 1.8, and 1.9) mental health authorities should develop a system to collect and review data for trends and patterns so they may explore opportunities to address problems. The department agrees with the commenter. Regarding Standard 1.8.R, the commenter supported the change mandating written criteria be approved by an authority psychiatrist. The commenter also supports the language specifying training. The commenter requested language specifying the frequency of assessment of an individual on homicide or suicide precaution. The department responds that the frequency of assessment of an individual on suicide or homicide precautions is individually determined. Another commenter requested clarification concerning Standard 1.8.R. The department responds that the commenter appears to be referencing other material. Regarding Standard 1.9.R, the commenter stated that the standard failed to define or indicate what an unusual incident is and suggested that department rules governing unusual incidents be referenced. The department concurs with the commenter and responds that with the reorganization of the department, the development of a risk management system will require consistency in specification of what constitutes this types of incident. Regarding Standard 1.10.R, the commenter requested language specifying the qualifications and expertise of the staff responsible for telephone screening and crisis response system. The commenter described a situation in which the 24- hour response system was a telephone answering service with referrals to call 9- 1-1. The department responds that language specifying staff qualification and expertise would not remedy the situation that the commenter described. The situation described by the commenter does not meet the standard and the department would cite a mental heath authority in such a situation. Regarding 1.11.R, the same commenter suggested language be added that provides guidelines as to what would be acceptable clinical justification for delaying assessment of an individual experiencing a behavioral/emotional crisis. The commenter also questioned how such clinically justified delays would be documented and evaluated. The department responds by deleting language that would provide a mechanism for delaying evaluation of an individual in crisis. With regard to Standards 1.13.R, 1.18.R, and 5.1.P, a commenter stated that if the standards require more in terms of professional competency than is required by licensing and certifying agencies, an undue burden is placed on MHAs. The department responds that it is hoped that the MHA will normally have expectations concerning staff competencies that are more specific to the populations it serves than the general licensing and certification standards of agencies. Concerning Standard 1.11.R, which states that an assessment by a QMHP for acute psychiatric crisis must be available 24 hours a day, 365 days a year "unless clinically documented," a commenter noted that the requirement should be stated in a manner that is easily understood and in agreement with the rules. Another commenter made similar comments and requested that more direction be given concerning what constitutes a clinically justifiable delay of evaluation of an individual in crisis. The department responds that language related to delaying evaluation of individuals in crisis has been deleted. Regarding 1.14.R, the commenter stated that language was too vague to understand how a determination of sufficient staffing is to be made. The commenter stated that this set up a system in which determinations were made reactively, after an accident occurred. The department responds that it is not possible to develop explicit staffing requirements for the range of programs that are provided by MHAs. The burden is on the MHA to demonstrate that staffing is adequate, not for the department to demonstrate that it is inadequate. The commenter expressed concern over the lack of guidelines regarding restraint and seclusion. The commenter stated that assurances must be in place which ensure that restraint and seclusion occurs only on an emergency basis; that the physician's order indicate what specific behaviors must be exhibited prior to release and that the individual be released as soon as those behaviors are exhibited; that restraint or seclusion is not used as punishment, solely for the convenience of staff, or as a substitute for effective treatment or habilitation; that the justification for the restraint or seclusion, target behaviors, and the individual's response to the restraint or seclusion be documented; that the physician's order not exceed four hours without reassessment; and that after restraint or seclusion occurs, individuals should be provided the opportunity to process the incident and intervention with staff. The commenter requested that the Standard reference compliance with department rules governing restraint and seclusion. The department responds that it has reviewed the commenter's concerns and will propose language addressing the concerns in a subsequent issue of the Texas Register. Regarding 1.17.R, the same commenter requested that language be added which requires that individuals in mechanical restraint be on one-to-one or close observation by staff to ensure the individual's protection and safety. The department responds by adding language to reflect the commenter's concern. Concerning Standard 1.20.R, a commenter suggested requiring posting licenses in the offices of QMHPs. The department responds that each profession has its own requirements concerning the availability of licenses/certifications for inspection. Also concerning Standard 1.20.R, two commenters suggested that social workers be included in the list of professionals. The department agrees and social workers have been added to the standard as adopted. A commenter requested that language be revised to require that reasonable accommodations be made for consumers and other persons with disabilities employed by the mental health authority. The commenter stated that this would ensure that individuals with disabilities, who were are not "MHMR" consumers and employed by the authority, are provided reasonable accommodations. The department responds that reasonable accommodations are ensured with Standard 1. 21.R., which requires mental health authorities to comply with the Americans With Disabilities Act. A commenter questioned the meaning of Standard 2.2.O. Another commenter stated that the language describing due process was incomprehensible and suggested referencing the department rule and federal regulation that addresses notice and appeal rights. The department agrees that as proposed the standard is unclear and has revised the language. A commenter requested that language be added to Standard 2.8.P which states that mental health authorities operated by the department must comply with the department's rules governing research. The department responds by adding language to reflect the commenter's concerns. Concerning Standard 3.1.O, a commenter stated that this and other proposed standards may be in compliance with department rules but do not define a measurable process or a specific minimum outcome measure. The department responds that the development of outcome measures is a priority. With reference to Standard 3.2.P, a commenter questioned whether it is fair for persons with the ability to pay for private services to be served equally with persons unable to pay. The department responds that the priority population definition mandating who should be served does make this distinction. By serving individuals who are able to pay, the system is able to collect revenue to enable it to serve more individuals who are not able to pay. The commenter expressed concern that the language in Standard 3.2.P was too vague to accomplish its intent to prioritize access to services for the priority population. The commenter suggested mandating the use of the department's definition of "priority population" as well as the use of the GAF. The commenter stated that the evaluation of the standard must include not only individuals who were able to access services, but also the population of individuals who were unable to access services. The department responds that the new performance contract requires MHAs to strictly adhere to the department's definition of priority population. The department is in the process of developing a uniform assessment system which will be used in all community-based programs and which includes the GAP and related assessments. The commenter requested that language be added to Standard 3.4.P, regarding cultural competency, requiring the mental health authority to comply with department rules governing the right to communication in a language and format understandable to the individual for all services provided. The commenter also requested that language be added requiring compliance with state statute governing the information provided to individuals related to prescription medication. The department responds by adding language to reflect the commenter's concerns. With reference to Standard 5.2.P, a commenter questioned expectations concerning competency-based job descriptions and performance evaluations. The department responds that expectations concerning competency-based job descriptions and performance evaluations are tied to each specific position and should be individualized by the MHA consistent with generally accepted practices relating to competency-based assessments. Concerning Standard 5.3, a commenter requested that direct contact staff receive training in basic pharmacology in order to identify and help individuals identify issues pertaining to medication. The department responds that resources are sufficiently limited to require training to be targeted to needs. Concerning Standards 5.4.P, a commenter questioned how a staff member will demonstrate true sensitivity through a competency-based evaluation. The commenter also disagreed with the requirement that sensitivity should be taught by individual and/or their families. The department responds that the involvement of individuals receiving services and their families provides a practical and realistic perspective on mental health services and the concerns of the people we serve. Regarding Standard 5.6.P, a commenter requested that there be a waiver for students and volunteers who can demonstrate that they have had training in required areas. The department responds that the training required of these individuals is minimal and if they can demonstrate that they have had specific training previously then there is no need to repeat it. With regard to Standard 6.1.O, a commenter questioned the meaning of "improved quality of life," and called for a less subjective measure of the impact of services. The department responds that there are currently available a number of valid and reliable measures for quality of life. Regarding Standard 6.1.O, the commenter stated that the Quality Improvement Process should be instrumental in providing ongoing information to the mental health authority CEO, its board of trustees, the department, consumers, family members, and advocates. The department agrees. Regarding Standard 6.4.O, the commenter requested that contracts ensure compliance with accreditation agencies, licensing and regulation standards, department rules, and directives. The department responds that the Fiscal Year 1996 performance contract requires compliance with the items requested by the commenter. Concerning Standard 8.5.P, a commenter noted that there was some question concerning the confidentiality code for HIV, but did not state the question. Concerning Standard 9.2.P and other references, a commenter stated that the emphasis on individual preferences, wishes, and desires risks stimulated unrealistic expectations. The commenter noted that there are times when the wishes of patients must be overridden and the Mental Health Code was designed to protect patients in this situation. The commenter further noted that resource limitations make it impossible to respond to all patient wishes, e.g., Clozaril, and that the medications desired by the patient or family may not be clinically appropriate. The commenter further stated that the influence of managed care is to prioritize cost effectiveness over the wishes of patients and even their physicians, and that there is no reason to expect that managed care will function differently in public care. The department responds that it appreciates the commenter's remarks and agrees that there are many instances in which the wishes and preferences of the consumer will not correspond to the choices available. However, if the wishes and preferences of the consumer are not explored, they cannot be taken into consideration when available. Also, by better understanding consumer choices and preferences, the system is better able to change to accommodate them in clinically appropriate ways. A commenter stated that Chapter 9 does not clearly state whether mental health authorities must provide any or all of the screening and crisis services listed in the standard. The department notes that Standard 9.2.P responds to the issue, i.e., individuals experiencing crises must have access to services that meet their needs. A commenter requested that Standard 9.4.P. include language requiring compliance with the notice and appeal requirement for crisis resolution services in accordance with sec.401.464(b)(2). The department responds that the notice and appeal requirement is contained in the referenced rule and is not repeated for each service to which it would pertain. A commenter requested that Standard 9.5.P. be revised to require crisis contacts by an individual receiving other authority services are communicated to the individual's treating psychiatrist and case manager. The department responds that language has been added requiring information to be communicated. A commenter requested that the definition of "crisis residential/in-home services" be amended to include crisis resolution house. The department responds that the current definition is sufficiently broad. A commenter recommended that a timeframe be added within which a person in crisis must be screened by a qualified mental health professional. The department responds that the requirement is contained in Standard 9.2.P, which requires individuals to have immediate access to services that meet their needs. A commenter requested criteria be added for the acceptable conditions of detention (i.e., what must be provided while persons are being detained before they are screened and/or treated). The department agrees that criteria are needed and will be developed. The commenter requested that language be added to Chapter 10 and 11 clarifying that the provision of medication is included in medication-related services. The department responds by adding language to reflect the commenter's concerns. Regarding Standard 10.2.O, a commenter suggested that relapse interruption, or relapse prevention, be included in all treatment rehabilitation, and support of persons experiencing a serious mental illness as an element of symptom management. The department responds that language has been added concerning reducing relapse. With reference to Standards 10.7.P and 10.11.P, a commenter requested that the treatment plan, like the interim plan, be given to the consumer. The department responds that it is important that the individual receive a copy of the interim plan because the interim plan is developed to be understandable to consumers and to serve as a bridge to community services. Treatment plans are not formulated in the same manner and are not necessarily written in a way that is meaningful to the individual. Also concerning Standard 10.11.P, a commenter noted that the wording is more appropriate for hospital care and should be rewritten to take into account outpatient care plans. The department responds that the language as written addresses issues that apply in outpatient care plans. A commenter requested a more realistic array of services for children in Chapter 11. The department responds that the array listed in Chapter 11 is appropriate. Concerning the definition of "case management" in Chapter 11, a commenter stated that case management does not assure that persons "have access to and receive all resources available" but only those that are included in the treatment plan. The department responds that the commenter's point, which is correct, is implicit. With reference to the definition of "family support services" in Chapter 11, a commenter requested that language concerning respite found in Chapter 13 be incorporated to clearly reflect that the purpose of respite is to assist caregivers by providing a brief break from the responsibilities of providing care or from the usual living situation. The department agrees that the definitions should be consistent and has modified the definition of "family support services" accordingly. Concerning the definition of "hospital services/crisis stabilization" in Chapter 11, a commenter noted that these services are sometimes treatments of choice and are not only alternatives to long-term inpatient hospitalization. The department responds that in the context of the public system of care, these services are conceptualized as represented in the definition. Concerning the definition of "assessment services" in Chapter 11, a commenter stated that these services depend primarily on the direct person interview and examination of the patient by the professional. The department responds that the term can also include the other elements listed in the definition. Regarding the definition of "substance abuse treatment" in Chapter 11, a commenter noted that psychologists and psychiatrists are not required to obtain TCADA licensure to deliver these services. The department responds that the commenter is correct and language has been changed. Regarding the standards in Chapter 11, a commenter expressed a desire that the outcomes be detailed in an appendix to include such factors as changes in school attendance, school grades, and other performance measures routinely maintained by schools. The department responds that development of an outcome measurement system is a priority. A commenter strongly supported Chapter 16, Housing and Residential Services. A commenter noted that the definition of "aversive procedures," which appears to allow restraint to be used as a method of providing an aversive stimulus, is in conflict with departmental rules. The department responds that current rules provide for use of contingent restraint; furthermore, standards have been revised so that all aversive procedures must be approved by the commissioner or the commissioner's designee. A commenter praised the definition of "case manager." Regarding the definition of "case management," a commenter noted that the service must be guided and limited by the treatment plan developed by the responsible multidisciplinary team. The department responds that the commenter is correct. A commenter questioned the reference to DSM-IV-R. The department responds that the reference was in error and should be DSM-IV. A commenter praised the definition of "mental illness." A commenter questioned whether the definition of CADAC was consistent with TCADA licensure described in Chapter 11. The department responds that language has been changed to reflect its intent that CADACs provide substance abuse treatment to children and adolescents. A commenter noted that the definition of "treatment plan" was based on treatment plans developed by state facilities and should reflect treatment planning appropriate to outpatients. The department responds that the definition of treatment plan takes into account transition and community support phases of development and therefore should accommodate special treatment planning needs related to community-based services. Concerning the definition of "qualified mental health professional," a commenter noted that the reference to Certified Alcohol and Drug Abuse Counselor (CADAC) should be a Licensed Chemical Dependency Counselor (LCDC). The department responds that both are included and that LCDCs have been added to the definition. The commenter questioned the absence of a definition of a "requisite standard." The department responds by adding a definition to the introduction which will be proposed in a subsequent issue of the Texas Register. A commenter requested that the terminology with reference to individuals receiving services be changed to "patient" for people receiving mental health services and "client" for persons receiving mental retardation services. The commenter based the request on a change in language in the Mental Health Code. The department responds that over the years the terminology used to refer to persons receiving services has changed a number of times. Because medical care may not be the central component of treatment planning for individuals receiving community-based services, the use of the term "patient" is not always appropriate. A commenter was confused about how Appendix I, MH Service Array Additional Service Definitions, fits in the community standards, since there is no reference to the appendix. The department responds by adding an explanation. The new sections are adopted under the Texas Health and Safety Code, sec.532. 015, which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers, and sec.534.052, which gives the board rulemaking authority for community-based mental health and mental retardation services provided by community centers and other contract providers. sec.408.21. Purpose. The purpose of this subchapter is to define the requisite, organizational, and services standards for community-based mental health services funded by the Texas Department of Mental Health and Mental Retardation (TDMHMR). FIGURE 1: 25 TAC sec.408.21. 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 15, 1995. TRD-9511871 Ann Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: October 6, 1995 Proposal publication date: August 4, 1995 For further information, please call: (512) 206-4516 26> TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 116. Control of Air Pollution by Permits for New Construction or Modification Subchapter C. Permit Exemptions Construction or Modification 30 TAC sec.116.211 The Texas Natural Resource Conservation Commission (TNRCC or commission) adopts an amendment to sec.116.211, concerning Standard Exemption List, with changes to the proposed text as published in the April 11, 1995, issue of the Texas Register (20 TexReg 2693). The amendment to sec.116.211 will change the effective date of the Standard Exemption List to identify the date of the latest revisions to the list. The adopted changes to the Standard Exemption List clarify and update Standard Exemption (SE) 62. The adopted changes to SE 62, regarding confined animal feeding operations (CAFO) and associated feeding operations (AFO), will make the exemption consistent with Chapter 321, Subchapter K, which establishes permit requirements for CAFOs which cannot qualify for standard exemption. A public hearing on the proposal was held April 21, 1995, at 10:00 a.m. in Room 201S of TNRCC Building E, located at 12118 North IH-35, Park 35 Technology Center, Austin. Testimony was received from one commenter. The individual suggested the following changes to proposed SE 62: conditions (a) -(h) should limit the number of animals to no greater than 1,000; condition (b) should not count a nursing calf and cow as one animal and should count swine as one animal regardless of weight; and condition (e) should not eliminate the requirement for a dry manure handling and storage system for odor control problems. The individual was also concerned about the expansion of the chicken industry in Texas and the potential threat to the public health and welfare. The TNRCC believes the herd sizes established in this exemption are reasonable and will not be a significant source of nuisance odors. These limits were revised to provide consistency between federal, state air, and state water permitting regulations. It should be noted that the facilities authorized by this exemption must still comply with the rules and regulations of the TNRCC, including the prohibition against nuisance. The TNRCC believes the nursing young associated with animal confinement operations are an insignificant contributor of odors and waste. Most operations which house or confine nursing young employ extra measures to ensure a clean environment for mother and young to safeguard against high mortality rates. As with the mature animals, allowance for nursing young does not authorize a producer to create nuisance level odors. The TNRCC believes the requirement to incorporate a dry manure handling and storage system was eliminated to provide consistency with federal, state water, and state air permitting regulations. The TNRCC believes animal, as well as poultry operations with a wet manure handling system can be designed and operated without creating nuisance level odors. Operating under this paragraph does not eliminate the prohibition against nuisance level odors. In response to the final concerns relating to the increase of poultry farms and the citizen's interest, the TNRCC does not have the authority to limit the number of these types of operations in the state. The TNRCC does have responsibility for developing and enforcing rules for air emissions. The staff believes that the varying compliance history established by the TNRCC (and Texas Air Control Board) on existing animal feeding operations does not support lowering the confinement numbers, adding buffer zones, or prescribing certain waste management designs. As in most standard exemptions, Number 62 has been limited to smaller confinement operations that do not exceed maximum head counts. The staff revised the language in condition (h), concerning feed handling for better clarification in the standard exemption. There was some confusion over the intent of this condition. The revised language should clarify that off-site feed shippers may still use the exemption for their pens and confinement areas. They must obtain separate authorization for the feed milling/handling operations that are used for off-site shipping. The amendment is proposed under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.116.211. Standard Exemption List. (a) Pursuant to the Texas Clean Air Act (TCAA), sec.382.057, the facilities or types of facilities listed in the Standard Exemption List, dated September 6, 1995, are exempt from the permit requirements of the TCAA, sec.382. 0518, because such facilities will not make a significant contribution of air contaminants to the atmosphere. A facility shall meet the following conditions to be exempt from permit requirements. (1)-(6) (No change.) (b)-(e) (No change.) (f) Installations exempted by the TNRCC may be required by local air pollution control agencies to receive a permit or permits from that agency, or register with that agency. Any such requirements must be in accordance with the TCAA, sec.382.113 and any other applicable law. Figure 1: 30 TAC sec.116.211(f) 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 6, 1995. TRD-9511755 Lydia Gonzalez-Gromatzky Acting Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: October 4, 1995 Proposal publication date: April 11, 1995 For further information, please call: (512) 239-1966 26> TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 47. Primary Home Care The Texas Department of Human Services (DHS) adopts an amendment to sec.47. 2901, concerning referrals to provider agencies, and adopts the repeal of sec.47.2907, concerning 60-day supervisory visits, in its Primary Home Care chapter. The amendment and repeal are adopted without changes to the proposed text as published in the July 28, 1995, issue of the Texas Register (20 TexReg 5607). The justification for the amendment is to allow clients freedom of choice to change provider agencies without restriction. The justification for the repeal is to avoid duplication and/or possible conflict with the Texas Department of Health's licensing standards related to supervisory visits. The amendment and repeal will function by ensuring that clients will have an opportunity to select provider agencies that can better serve their needs. No comments were received regarding adoption of the amendment and repeal. Service Requirements 40 TAC sec.47.2901 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 14, 1995. TRD-9511805 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: November 1, 1995 Proposal publication date: July 28, 1995 For further information, please call: (512) 450-3765 26> 40 TAC sec.47.2907 The repeal is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 14, 1995. TRD-9511806 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: November 1, 1995 Proposal publication date: July 28, 1995 For further information, please call: (512) 450-3765