PROPOSED RULES Before an agency may permanently adopt a new or amended section or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before action is taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive action, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 22. EXAMINING BOARDS Part XXI. Texas State Board of Examiners of Psychologists Chapter 463. Applications 22 TAC sec.463.31 The Texas State Board of Examiners of Psychologists proposes an amendment to sec.463.31, concerning Temporary License/Certificate Application File Requirements. The amendment is being proposed in order to reflect changes made in the Psychologists' Certification and Licensing Act by the 74th Legislature and to streamline the rule to make it easier for all licensees/certificands to follow. Rebecca E. Forkner, executive director, has determined that for the first five- year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing the section. Ms. Forkner also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to bring the rule in compliance with amendments made to the Psychologists' Certification and Licensing Act and advise the public of the procedures by which temporary licensure or certification can be obtained by individuals who are seeking permanent licensure or certification with the Board. There will be no effect on small businesses. The anticipated economic cost to persons who are required to comply with the section as proposed will be in direct proportion to the type of license or certificate for which the person is applying. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700. The amendment is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. The proposed amendment does not affect other statutes, articles, or codes. sec.463.31. Temporary [Provisional] License/Certificate Application File Requirements. (a) An application file must be complete and contain whatever information or examination results the Board requires. An incomplete application remains in the active file for 90 days, at the end of which time, if still incomplete, it is void. If a temporary
    [provisional] license or certificate is sought again, a new application and filing fee must be submitted. An application for licensure as a psychological associate, certification as a psychologist, [or] licensure as a psychologist, or any application for licensure or certification by reciprocity
      must be on file with the Board. (b)
        [(1)] A completed application for a temporary
          [provisional] license or certificate must include
            [as a psychological associate includes]: (1)
              [(A)] an application and required fee(s) for temporary
                [provisional] license or certificate
                  [as a psychological associate]; (2)
                    [(B)] two current passport pictures of the applicant; [(C) official transcripts sent directly to the Board's office from all colleges/universities where post-baccalaureate course work was completed as found in Board Rule 463. 8 of this title (relating to Subdoctoral Certification Education Requirements); ] (3)
                      [(D)] a statement which has a notary seal or a state seal from the appropriate psychology licensing agency in another jurisdiction confirming that the applicant has an active license/certificate [as a psychological associate], and is in good standing with that jurisdiction; (4)
                        [(E)] an official notification directly from the Professional Examination Service that the applicant has passed the Examination for [the] Professional Practice in
                          [of] Psychology with a score that meets or exceeds the cut-off score in Texas at the time the application is filed with the Board; and [(F) a notarized statement from a psychologist licensed in the State of Texas confirming that the psychologist sponsors the applicant; [(G) a notarized statement from a psychologist, licensed in the State of Texas, confirming that the applicant will practice with the psychologist until receiving a permanent license from the Board; and] (5)
                            [(H)] proof that the requirements for licensure/certification [as a psychological associate] in the other jurisdiction are substantially equal to those prescribed by the Psychologists' Certification and Licensing Act for the State of Texas. [(2) A completed application for provisional certification as a psychologist includes: [(A) an application and required fee(s) for provisional certification as a psychologist; [(B) two current passport pictures of the applicant; [(C) an official transcript from the regionally accredited educational institution which indicates that an applicant has received a doctoral degree in psychology and meets the requirements of the Psychologists' Certification and Licensing Act, sec.11(b) or (c) for the State of Texas; [(D) a statement which has a notary seal or a state seal from the appropriate psychology licensing agency in another jurisdiction confirming that the applicant has an active license/certificate as a psychologist, is in good standing with that jurisdiction; [(E) an official notification directly from the Professional Examination Service that the applicant has passed the Examination for the Professional Practice of Psychology with a score that meets or exceeds the cut-off score in Texas at the time the application is filed with the Board; [(F) a notarized statement from a psychologist licensed in the State of Texas confirming that the psychologist sponsors the applicant; [(G) a notarized statement from a psychologist, licensed in the State of Texas, confirming that the applicant will practice under the supervision of the/a psychologist; and [(H) proof that the requirements for licensure/certification as a psychologist in the other jurisdiction are substantially equal to those prescribed by the Psychologists' Certification and Licensing Act for the State of Texas. [(3) A completed application for provisional license as a psychologist includes: [(A) an application and required fee(s) for provisional licensure as a psychologist; [(B) two current passport pictures of the applicant; [(C) an official transcript from the regionally- accredited educational institution which indicates that an applicant has received a doctoral degree in psychology and meets the requirements of the Psychologists' Certification and Licensing Act, sec.11(b) or (c) for the State of Texas; [(D) a statement which has a notary seal or a state seal from the appropriate psychology licensing agency in another jurisdiction confirming that the applicant has an active license to practice psychology and is in good standing with that jurisdiction; [(E) an official notification directly from the Professional Examination Service that the applicant has passed the Examination for the Professional Practice of Psychology with a score that meets or exceeds the cut-off score in Texas at the time the application is filed with the Board; [(F) a notarized statement from a psychologist licensed by the Board confirming that the psychologist sponsors the applicant; [(G) a notarized statement from a psychologist, licensed in the State of Texas, that the applicant will practice with the psychologist until receiving a permanent license as a psychologist from the Board; and [(H) proof that the requirements for licensure/certification as a psychologist in the other jurisdiction are substantially equal to those prescribed by the Psychologists' Certification and Licensing Act for the State of Texas.] (c) In addition to the requirements listed in subsection (b) of this section, all applications must include the following: (1) For temporary licensure as a psychological associate, official transcripts sent directly to the Board's office from all colleges/universities where post-baccalaureate course work was completed as found in Board Rule 463.8 of this title (relating to Subdoctoral Licensure Education Requirements; or (2) For temporary certification or licensure as a psychologist, an official transcript from the regionally accredited educational institution which indicates that an applicant has received a doctoral degree in psychology and meets the requirements of the Psychologists' Certification and Licensing Act, sec.11(b) or (c) for the State of Texas. [(4) In addition to the requirements stated in paragraphs (1)-(3) of this subsection, applicants for provisional license as a psychological associate or provisional certification as a psychologist must have taken and passed the Jurisprudence Examination as administered by the Texas State Board of Examiners of Psychologists prior to their receiving a provisional license/certificate; applicants for provisional license as a psychologist must have taken and passed the Jurisprudence Examination as well as the Oral Examination as administered by the Texas State Board of Examiners of Psychologists prior to their receiving a provisional license as a psychologist.] This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 29, 1995. TRD-9516877 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: February 9, 1996 For further information, please call: (512) 305-7700 Chapter 465. Rules of Practice 22 TAC sec.465.20 The Texas State Board of Examiners of Psychologists proposes an amendment to sec.465.20, concerning Rehabilitation Guidelines. The amendment is being proposed in order to simplify the wording of the rule so that the rule does not have to be amended each time there is a change in classifications of licensees and/or certificands. Rebecca E. Forkner, executive director, has determined that for the first five- year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing the section. Ms. Forkner also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to make the rules easier for the public to follow. There will be no effect on small businesses. There will be no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700. The amendment is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. The proposed amendment does not affect other statutes, articles, or codes. sec.465.20. Rehabilitation Guidelines. (a) In the event of revocation[, cancellation,] or suspension of a certificate or license due to non-compliance with the rules of the Board and/or its ethical principles, certificands or licensees
                              [the psychologist or psychological associate] can expect to receive from the Board a plan of rehabilitation at the next regularly scheduled Board meeting following the date of the order. The plan shall outline the steps the person must follow in order to be considered for recertification/relicensure or removal of suspension. Completion of the plan may lead to consideration of submission of an application for recertification and/or relicensure; removal of suspension; removal of supervision requirements. In the event the certificand or licensee
                                [psychologist or psychological associate] has not met the Board's criteria for rehabilitation, the plan may be revised, expanded, and/or continued depending upon the progress of the rehabilitation program. (b) The Board may follow one or more options in devising a rehabilitation program: (1) The individual may be supervised in all or selected areas of activities related to his/her practice as a certificand or licensee
                                  [psychologist or psychological associate] by a licensed psychologist approved by the Board for a specified length of time. (A) -(E) (No change.) (2)-(4) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 29, 1995. TRD-9516878 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: February 9, 1996 For further information, please call: (512) 305-7700 TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 408. Standards and Quality Assurance Subchapter D. Additional Mandatory Standards for Selected Providers of Community-based Mental Retardation Supports and Services 25 TAC sec.sec.408.101-408.106 The Texas Department of Mental Health and Mental Retardation (TDMHMR) proposes new sec.sec.408.101-408.106 of Chapter 408, Subchapter D, concerning additional mandatory standards for selected providers of community-based mental retardation supports and services. The proposed new sections would allow agencies certified by TDMHMR to satisfy the requirements for licensing by the Texas Department of Health (TDH) home and community support services agencies. The requirements are outlined in Section IV, Paragraph 4 of a memorandum of understanding (MOU) between the TDMHMR, TDH, and other state agencies under the Texas Health and Human Services Commission (THHSC). The MOU is required by Texas Health and Safety Code, sec.142.009(k), which statute requires the department and other state agencies under the Texas Health land Human Services Commission (THHSC) to execute a memorandum of understanding (MOU) establishing procedures to eliminate or reduce duplication and conflicts in standards as well as surveys and complaint investigations. The state agencies affected are those that contract with or operate home and community support services agencies to deliver home health, hospice, or personal assistance services for which a license is required under the Texas Health and Safety Code, Chapter 142. In addition to TDMHMR, this includes TDH, Texas Department of Aging, Texas Department of Protective and Regulatory Services, Texas Rehabilitation Commission, Texas Commission for the Blind, and the Texas Department of Human Services. The additional standards referenced in the sections are TDH licensure standards described in TDH rules at 25 TAC sec. s115.1-115.62 (relating to Home and Community Support Services Agencies Rules and Regulations) which have no counterparts in the 1988 TDMHMR Community Standards for Individuals with Mental Retardation or the outcome standards of the Home and Community-based Services (HCS) and Home and Community-Based Services-OBRA (HCS-O) programs. Donald C. Green, chief financial officer, has determined that for the each year of the first five-year period the sections as proposed are implemented there will be no significant additional fiscal implications to state or local government or small businesses as a result of enforcing the sections. Steve Shon, director, Managed Care Administration, has determined that for each year of the first five year period the sections as proposed are in effect the public benefit anticipated is the department's compliance with state law and the elimination or reduction of standards or conflicts between standards and functions in license, certification, or compliance surveys and complaint investigations. There will be no significant impact on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Questions about the content of the proposal may be directed to Sue Dillard, Director, Monitoring and Compliance division, Managed Care Administration. Written comments on the proposal may be sent to Linda Logan, Director, Policy Development, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication. A hearing to accept public testimony regarding the proposal has been scheduled for 1:30 p.m., Monday, January 29, 1996, in the TDMHMR Central Office auditorium (main building) at 909 West 45th Street in Austin, Texas. If interpreters for the hearing impaired are required, please contact Laura Thomas in the Office of Policy Development at (512) 206-4516 at least 72 hours prior to the hearing. The new sections are proposed 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 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. These sections would affect the Texas Health and Safety Code, sec.142.009(k) and sec.532.052. sec.408.101. Purpose. (a) This subchapter describes the additional mandatory standards for selected providers of community-based mental retardation supports and services funded by the Texas Department of Mental Health and Mental Retardation as described in a memorandum of understanding (MOU) between the department, the Texas Department of Health (TDH) and other state agencies under the Texas Health and Human Services Commission. (1) The MOU is required by Texas Health and Safety Code (THSC), sec.142.009(k). (2) These standards are in addition to the 1988 TDMHMR Community Standards for Individuals with Mental Retardation and the outcome standards of the Home and Community-based Services (HCS) and Home and Community-Based Services-OBRA (HCS - O) programs. (b) This subchapter implements, in part, the Texas Health and Safety Code, sec.534.052, concerning standards for community-based mental health and mental retardation services provided through a local mental health or mental retardation authority. (c) This subchapter is consistent with TDH rules at 25 TAC sec.sec.115.1- 115.62 (relating to Home and Community Support Services Agencies Rules and Regulations). sec.408.102. Application. The provisions of this subchapter apply to community-based mental retardation services and supports funded by the department and delivered by: (1) local mental retardation authorities and the providers with which they contract; and (2) designated providers. sec.408.103. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Agency-A home and community support services agency. Care plan- (A) a written plan prepared by the appropriate health care personnel for a client of the home and community support services agency; or (B) for home dialysis designation, a written plan developed by the physician, registered nurse, dietitian and qualified social worker to personalize the care for the client and enable long and short term goals to be met. Certified agency -A home and community support services agency that: (A) provides a home health service; and (B) is certified by an official of the Department of Health and Human Services as in compliance with condition of participation in Social Security Act, Title XVIII (42 United States Code (U.S.C.), sec.sec.1395 et seq. Certified home health services-Home health services that are provided by a certified agency. Client-An individual receiving home health, hospice, or personal assistance services from a licensed home and community support services agency. This term includes each member of the primary client's family if the member is receiving services. Department-The Texas Department of Mental Health and Mental Retardation. Designated provider -As defined in the Texas Health and Safety Code, sec.534.054, a service provider with whom the department contracts for the delivery of a specific community-based mental health or mental retardation service in a specified local service area of the state. The term does not include a local authority. Health assessment -A determination of a client's physical and mental status through inventory of systems. Home and community support services agency-A person who provides home health, hospice, or personal assistance services for pay or other consideration in a client's residence, an independent living environment, or another appropriate location. Home health service-The provision of one or more of the following health services required by an individual in a residence or independent living environment: (A) nursing; (B) physical, occupational, speech, or respiratory therapy; (C) medical social service; (D) intravenous therapy; (E) dialysis; (F) service provided by unlicensed personnel under the delegation of a licensed health professional; (G) the furnishing of medical equipment and supplies, excluding drugs and medicines; or (H) nutritional counseling. Independent living environment-A client's individual residence, which may include a group home or foster home, or other settings where a client participates in activities, including school, work, or church. Local mental retardation authority-As defined in the Texas Health and Safety Code, sec.531.002, an entity to which the Texas Mental Health and Mental Retardation Board delegates its authority and responsibility within a specified region for planning, policy development, coordination, and resource development and allocation and for supervising and ensuring the provision of mental retardation services to individuals with mental retardation in one or more local service areas. Manager-A person having a contractual relationship to provide management services to a home or community support services agency for the overall operation of a home and community support services agency including administration, staffing, or delivery or services. Examples of contracts for services that will not be considered to be contracts for management services include contracts solely for maintenance, laundry, or food services. Personal assistance services-Routine ongoing care or services required by an individual in a residence or independent living environment that enable the individual to engage in the activities of daily living or to perform the physical functions required for independent living, including respite services. The term includes health-related services performed under circumstances that are defined as not constituting the practice of professional nursing by the Board of Nurse Examiners through a memorandum of understanding with TDH in accordance with Texas Health and Safety Code, sec.142.016, and health-related tasks provided by unlicensed personnel under the delegation of a registered nurse. Plan of care -The written orders of a practitioner for a client who requires skilled services. Practitioner-A person who is currently licensed in a state in which the person practices as a physician, dentist, podiatrist, or a person who is a registered nurse registered with the Board of Nurse Examiners for the State of Texas as an advanced nurse practitioner. Psychoactive treatment -The provision of a skilled nursing visit to a client with a psychiatric diagnosis under the direction of psychiatrist that includes one or more of the following: (A) assessment of alterations in mental status or evidence of suicide ideation or tendencies; (B) teaching coping mechanisms or skills; (C) counseling activities; or (D) evaluation of the plan or care. Skilled services -Services in accordance with a plan of care that require the skills of a: (A) registered nurse; (B) licensed vocational nurse; (C) physical, occupational or respiratory therapist; (D) speech-language pathologist; (E) audiologist; (F) social worker; or (G) dietitian. Supervision-Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity with initial direction and periodic inspection of the actual act of accomplishing the function or activity. Unlicensed person -An individual who is not licensed as a health care professional. The term includes, but is not limited to, home health aides, medication aides permitted by the department, and other individuals providing personal care or assistance in health services. sec.408.104. Additional Mandatory Standards. (a) A person may not engage in the business of providing home health, hospice, or personal assistance services, or represent to the public that the person is a provider of home health, hospice, or personal assistance services for pay or other consideration without a license issued by the Texas Department of Health. (b) A license shall be displayed in a conspicuous place in the designed place of business and must show: (1) the name and address of the licensee; (2) the name and address of the owner or owners if different than the licensee; (3) the license expiration date; and (4) the categories of services authorized to be provided under the license. (c) A license may be transferred from one location to another without prior approval from the Texas Department of Health (TDH). If an agency is considering relocation, the agency shall notify TDH 30 calendar days prior to the intended relocation. TDH will provide written notification to the agency amending the annual license to reflect the new location. (d) An agency must notify TDH in writing of any change in its telephone number within 30 calendar days. (e) A license shall not be materially altered. (f) An agency shall implement and enforce the provisions of the Texas Human Resources Code, Chapter 102 (relating to Rights of the Elderly) for clients 55 years or older. (g) An agency shall adopt, implement, and enforce a written policy to ensure compliance of the agency and its employees and contractors with the Texas Health and Safety Code, Chapter 85, Subchapter I, relating to the prevention of the transmission of human immunodeficiency virus and hepatitis B virus. (h) An agency shall adopt, implement, and enforce a written policy to ensure compliance of the agency and its employees and contractors with the Texas Health and Safety Code, sec.sec.161.091 et seq, relating to the prohibition of illegal remuneration for securing or soliciting clients or patronage. (i) An agency that provides laboratory services must meet the requirements of Federal Public Law 100-578, Clinical Laboratory Improvement amendments of 1988 (CLIA 1988). CLIA 1988 applies to all agencies with laboratories that examine human specimens for the diagnosis, prevention, or treatment of any disease or impairment of, or the assessment of the health of, human beings. (j) An agency shall adopt, implement, and enforce a written policy for publicly known natural disaster preparedness for clients receiving services. The written policy shall include a plan for the reasonable mechanism for triaging clients, the notification of appropriate personnel and clients in the event of a disaster if possible, the identification of appropriate community resources, and the identification of possible evacuation procedures. The plan need not require that the agency actually evacuate, transport, or triage the clients. (k) An agency shall adopt, implement, and enforce a policy on pronouncement of death if that function is carried out by an agency registered nurse. The policy shall be in compliance with Texas Health and Safety Code, sec.671.001. (l) If an agency provides skilled nursing psychoactive treatments under the direction of a psychiatrist, the registered nurse providing skilled nursing psychoactive treatments must: (1) have a master's degree in psychiatric or mental health nursing; (2) have a bachelor's degree in nursing with one full-time year of experience in an active treatment unit in a mental health facility or outpatient clinic; (3) have a diploma or associate degree with two full-time years of experience in an active treatment unit in a mental health facility or outpatient clinic; or (4) have been approved to meet the qualifications of psychiatric nurse under contract with the Health Care Financing Administration (HCFA). (m) An agency shall have written documentation of qualifications of a registered nurse providing skilled nursing psychoactive treatments under the direction of a psychiatrist, if the agency provides such services. (n) If an agency provides skilled nursing psychoactive treatments, the initial assessment of clients receiving such treatments shall include: (1) mental status including psychological and behavioral status; (2) sensory and motor function; (3) cranial nerve function; (4) language functions; and (5) other criteria established by an agency's policy. (o) An agency shall adopt, implement, and enforce a policy on a quality assurance program which provides for accountability and desired client outcomes. An agency shall conduct an ongoing, comprehensive, integrated, self-assessment of the quality and appropriateness of care provided, including services provided under arrangement. The findings are to be used by the agency to correct identified problems and to revise policies, if necessary. (p) Those responsible for the quality assurance program shall: (1) implement and report on activities and mechanisms for monitoring the quality of care; (2) identify and when possible resolve problems; and (3) make suggestions for improving care. (q) Organizational structure and operational policies of the agency must be clearly stated in writing. An agency shall adopt, implement, and enforce its operational policies. The policies must include the lines of authority and delegation of responsibilities down to the client care level and services provided. (r) A personnel record shall be maintained on each employee. A personnel record shall include, but not be limited to, the following: job description; qualifications; application for employment; verification of license, permits, reference(s), job experience, and educational requirements as appropriate; performance evaluations and disciplinary actions; and letters of commendation. All information shall be kept current. In lieu of the job description and qualifications for employment, the personnel record may include a statement signed by the employee that the employee has read the job description and qualifications for the position accepted. (s) If an agency utilizes independent contractors, there shall be a written agreement between such independent contractors (i.e., per hour, per visit) and the agency. The agreement shall be enforced by the agency and clearly designate: (1) that clients are accepted for care only by the primary agency; (2) the services to be provided; (3) the necessity to conform to all applicable agency policies, including personnel qualifications; (4) the plan of care, care plan, or individualized service plan to be carried out; (5) the manner in which services will be coordinated and evaluated by the primary agency; (6) the procedures for submitting information and documentation regarding the client's needs and services, including clinical and progress notes, if required, the scheduling of visits; and periodic client evaluation for supervision; and (7) the procedures for determining charges and reimbursement. (t) Services provided by an agency under arrangement with another agency or organization must be subject to a written agreement conforming with the requirements of agreements for independent contractors as described in subsection (s) of this section. (u) Clinical notes are to be written the day the service is rendered and incorporated into the clinical record on a timely basis. An agency shall adopt, implement, and enforce a policy on incorporation of clinical notes into the clinical record. (v) The agency must have the financial ability to carry out its functions. (w) The agency must have a written contingency plan which is implemented in the event of dissolution for continuity of client care. All records shall be retained even if the agency discontinues operation. (x) The agency shall accept a client for home health services on the basis of a reasonable expectation that the client's medical, nursing, and social needs con be met adequately in client's residence. The agency shall start providing licensed home health services to a client within a reasonable time from acceptance of the client. The initiation of licensed home health services shall be based on the client's health service needs. An agency shall adopt, implement, and enforce a policy on the time frame for the initiation of home health services. (y) An initial assessment shall be performed in the client's residence by the appropriate health care professional prior to or at the time that licensed home health services are initially provided to the client. The assessment shall determine whether the agency has the ability to provide the necessary services. (z) If a practitioner orders skilled treatment, then the appropriate health care professional shall prepare a plan of care. The plan of care must be signed and approved by the practitioner in a timely manner. The plan of care shall be developed in conjunction with agency staff and shall cover all pertinent diagnosis, including mental status, types of services and equipment required, frequency of visits at the time of admission, prognoses, functional limitations, activities permitted, nutritional requirements, medications and treatments, any safety measures to protect against injury, and any other appropriate items. The appropriate health care personnel shall perform services as specified in the plan of care. The plan of care shall be revised as necessary, but it shall be reviewed and updated at least every six months. An agency shall adopt, implement, and enforce a policy on the time frame for the timely countersignature of a practitioner's verbal orders. (aa) An agency shall provide at least one home health service. All services shall be rendered and supervised by qualified personnel. The appropriate health professional shall be available to supervise as needed, when services are provided. If nursing services is provided, a registered nurse shall be employed by or under contract with the agency to provide services or supervision. (bb) If services are provided by unlicensed personnel, a qualified person shall be employed by or under contract with the agency to provide the service and a registered nurse shall be employed by or under contract with the agency to perform the initial assessment, prepare the clients care plan, as appropriate, and supervise the unlicensed personnel. (cc) Personal assistance services may be performed by an unlicensed person who is at least 18 years of age and is competent to perform the tasks assigned by the supervisor. (dd) The following tasks may be performed under a personal assistance services category: (1) health related tasks which may be delegated by an RN in accordance with the agency's policy except for nursing tasks that may not be delegated and nursing tasks that may not be routinely delegated; and (2) health related tasks that are not the practice of professional nursing under the memorandum of understanding between the TDH and the Board of Nurse Examiners. (ee) A person who meets the qualifications of an administrator shall be authorized in writing by the administrator to act in his or her absence. (ff) Supervisors must be licensed nurses or have completed two years of full- time study at an accredited college or university. Individuals with a high school diploma or general equivalence diploma (GED) may substitute one year of full-time employment in a supervisory capacity in a health care facility, agency, or community-based agency for each required year of college. (gg) Unlicensed persons performing health related tasks that fall within the practice of professional nursing shall be supervised by an RN. (hh) An agency must comply with Texas Health and Safety Code, Chapter 250, Nurse Aide Registry and Criminal History Checks of Employees and Applicants for Employment in Certain Facilities Serving the Elderly or Persons with Disabilities. Failure to comply shall be grounds for denial, suspension, or revocation of the agency's license. (ii) Agencies which are providers in the Home and Community-based Services (HCS) and Home and Community-Based Services-OBRA (HCS-O) programs must comply with subsections (a)-(t), (x), (y), and (aa)-(hh) of this section. (jj) Agencies which operate under the 1988 TDMHMR Community Standards for Individuals with Mental Retardation must comply with subsections (a)-(f), (h), (i), (k)-(n), (q), (r), (t)-(x), (z), (aa), (cc), (ee), and (gg) of this section. sec.408.105. References. State and federal statute, agency rules, and other documents referenced in this subchapter include: (1) Social Security Act, Title XVIII (42 United States Code (U.S.C.), sec.sec.1395 et seq; (2) Federal Public Law 100-578, Clinical Laboratory Improvement amendments of 1988 (CLIA 1988); (3) Texas Health and Safety Code, Chapter 85, Subchapter I (Prevention of the Transmission of Human Immunodeficiency Virus and Hepatitis B Virus); (4) Texas Health and Safety Code, sec.142.016; (5) Texas Health and Safety Code, sec.sec.161. 091 et seq (Prohibition of Illegal Remuneration for Securing or Soliciting Clients or Patronage); (6) Texas Health and Safety Code, Chapter 250 ( Nurse Aide Registry and Criminal History Checks of Employees and Applicants for Employment in Certain Facilities Serving the Elderly or Persons with Disabilities); (7) Texas Health and Safety Code, sec.531.002; (8) Texas Health and Safety Code, sec.534.054 (relating to Designation of Provider); (9) Texas Health and Safety Code, sec.671.001; (10) Texas Human Resources Code, Chapter 102 (relating to Rights of the Elderly) ; (11) Texas Department of Health rules at 25 TAC sec. s115.1-115.62 (relating to Home and Community Support Services Agencies Rules and Regulations); (12) memorandum of understanding (MOU) between the department, the Texas Department of Health (TDH) and other state agencies under the Texas Health and Human Services Commission; (13) 1988 TDMHMR Community Standards for Individuals with Mental Retardation; and (14) outcome standards of the Home and Community-based Services (HCS) and Home and Community-Based Services-OBRA (HCS-O) programs. sec.408.106. Distribution. (a) Copies of this subchapter shall be distributed to: (1) members of the Texas Mental Health and Mental Retardation Board; (2) executive, management, and program staff of the department's Central Office; (3) chairs of boards of trustees of local mental retardation authorities; (4) chief executive officers (CEOs) of local mental retardation authorities and designated providers; and (5) interested advocates and advocacy organizations. (b) The CEOs of local mental retardation authorities and designated providers are responsible for distributing copies of this subchapter to: (1) appropriate staff; (2) providers; (3) agents; (4) any individual receiving services and supports who requests a copy; (5) family members and advocates who request a copy; and (6) any employee who requests a copy; and (7) any other person who requests a copy. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 3, 1996. TRD-9600011 Ann Utley Chairman Texas Department of Mental Health and Mental Retardation Earliest possible date of adoption: February 9, 1996 For further information, please call: (512) 206-4516 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part I. Texas Department of Public Safety Chapter 3. Traffic Law Enforcement Traffic Supervision 37 TAC sec.3.59, sec.3.62 The Texas Department of Public Safety proposes an amendment to sec.3.59 and new sec.3.62, concerning traffic supervision. The amendment and new section are necessary to implement the provisions of Senate Bill 3, 74th Legislature, 1995, effective September 1, 1995 (Chapter 705, Acts of 74th Legislature, Regular Session, 1995), which created Texas Civil Statutes, Article 6675d, which requires the director of the Texas Department of Public Safety to adopt, by reference, rules regulating the safe transportation of hazardous materials and to regulate the operations of commercial motor vehicles in the state. The authority section for the adoption of the hazardous material regulations was previously in Texas Civil Statutes, Article 6701d, sec.139. Section 31(a)(13) of Senate Bill 3 repealed Article 6701d, sec.139 effective September 1, 1995. Thus Article 6675d, sec.3 becomes the new authorizing statute for the adoption of the Federal Hazardous Material Regulations. On October 5, 1995, the department adopted emergency rules relating to traffic supervision. The new proposed rules contain substantial revisions from the previously adopted emergency rules. The amendment to sec.3.59 implements the provisions of Senate Bill 3, 74th Legislature, 1995, which changed the statute authorizing the director to adopt all or part of the Federal Hazardous Material Regulations (Title 49, Code of Federal Regulations), and assess administrative penalties. In proposed new sec.3.62, the director adopts, by reference Parts 382, 385, 386, 390-393, and 395-397 of Title 49, Code of Federal Regulations (Federal Motor Carrier Safety Regulations). The director further establishes the provisions for the Safety Audit Program, the assessment of administrative penalties, the issuance of safety ratings to motor carriers, and expands the requirements for municipal peace officers that could be trained and certified to enforce the Federal Safety Regulations. Section 3.62 also incorporates the provisions of Chapter 767, Acts of 74th Legislature, Regular Session, 1995, relating to the waiver of the visual standards for a commercial driver's license to operate a commercial motor vehicle only in this state. Lester Mills, Major, Traffic Law Enforcement Division, has determined that for each year of the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Major Mills also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be to ensure the public that a motor carrier is in compliance with all of the statutes and regulations pertaining to the safe operation of commercial motor vehicles and safe transportation of hazardous materials in the state. There will be a minimal effect on small or large businesses. The cost of compliance for small businesses is the same as the cost of compliance for large businesses for each employee. Due to the new requirement for the alcohol testing requirements in Part 382, there will be an economic cost to persons who are required to comply with the sections as proposed. However, the department does not have empirical data from which to determine the actual costs of the alcohol testing. Comments on the proposal may be submitted to John C. West, Jr., Chief of Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0001, (512) 424-2890. The amendment and new section are proposed pursuant to Texas Civil Statutes, Article 6675d, Texas Transportation Code, Chapter 522, and Texas Government Code, sec.411.006(4), which provide the director of the Texas Department of Public Safety with the authority to establish rules for the conduct of the work of the Texas Department of Public Safety, and which authorizes the director to adopt rules regulating the safe operation of commercial motor vehicles. The proposal affects Texas Civil Statutes, Article 6675d, Texas Transportation Code, Chapter 522, and Texas Government Code, sec.411.006(4). sec.3.59. Regulations Governing Transportation of Hazardous Materials. (a) Federal regulations adopted. On September 28, 1973, the director of the Texas Department of Public Safety adopted the Federal Hazardous Materials Regulations, Parts 171-173, 177, and 178, by reference including all amendments and interpretations thereto when operated intrastate
                                    . The department further adopts Part 180 by reference including all amendments and interpretations thereto. (b) Explanations and Exceptions. (1) Certain terms when used in the federal regulations as adopted in subsection (a) of this section will be defined as follows: (A) the definition of motor carrier will be the same as that given in Texas Civil Statutes, Article 6675c, sec.1(2)
                                      [6701d, sec.2(0)]; (B) [the definition of] hazardous material shipper means a consignor, consignee, or beneficial owner of a shipment of hazardous materials
                                        [will be the same as that given in Texas Civil Statutes, Article 6701d, sec.2(p)]; (C)-(G) (No change.) (2) (No change.) (3) All references in Title
                                          49,
                                            Code of Federal Regulations, Chapter 1, Parts 171-173, 177, 178, and 180 made to other modes of transportation, other than by motor vehicles operated on streets and highways of this state, will be excluded and not adopted by this department. (4) (No change.) (5) The reporting of hazardous material incidents as required by federal regulations has not been adopted, and, therefore, is not required by the Texas Department of Public Safety; however, reporting requirements required by Texas Transportation Code
                                              [Civil Statutes] will be applicable. (6) Regulations adopted by this department, other than placarding, shipping papers, fire extinguisher, and the federal motor carrier safety regulations requirements do not apply to cargo tanks having a capacity of 3, 000 gallons or less and used to transport flammable liquids, provided the tank was manufactured or assembled prior to January 1, 1982. All cargo tanks having a 3,000 gallon capacity or less and used to transport flammable liquids manufactured or assembled on or after January 1, 1982, will be required to meet all specifications and regulations for such tanks as required in Title
                                                49,
                                                  Code of Federal Regulations, Chapter 1, Parts 171-173, 177, 178, and 180. (7) Regulations and exceptions adopted herein are applicable to intrastate drivers and vehicles. All regulations contained in Title
                                                    49,
                                                      Code of Federal Regulations, Parts 382, 385, 386,
                                                        390-393, and 395-397 and all amendments thereto pertaining to interstate drivers and vehicles are adopted. (8) (No change.) (9) Penalties assessed for violations of the regulations adopted herein will be based upon the provisions of Texas Civil Statutes, Article 6675d, and s3.62 of this title (relating to Regulations Governing Transportation Safety)
                                                          [6701d, sec.139(h) and (j), and not those stated in 49 Code of Federal Regulations]. sec.3.62. Regulations Governing Transportation Safety. (a) General. The director of the Texas Department of Public Safety incorporates, by reference, the Federal Motor Carrier Safety Regulations, Title 49, Code of Federal Regulations, Parts 382, 385, 386, 390-393, and 395-397 including amendments and interpretations thereto. The rules adopted herein are to ensure that: (1) a commercial motor vehicle is safely maintained, equipped, loaded, and operated; (2) the responsibilities imposed on a commercial motor vehicle's operator do not impair the operator's ability to operate the vehicle safely; and (3) the physical condition of a commercial motor vehicle's operator enables the operator to operate the vehicle safely. (b) Terms. Certain terms, when used in the federal regulations as adopted in subsection (a) of this section, will be defined as follows: (1) the definition of motor carrier will be the same as that given in Texas Civil Statutes, Article 6675c, sec.1; (2) hazardous material shipper means a consignor, consignee, or beneficial owner of a shipment of hazardous materials; (3) interstate or foreign commerce will include all movements by motor vehicle, both interstate and intrastate, over the streets and highways of this state; (4) department means the Texas Department of Public Safety; (5) director means the director of the Texas Department of Public Safety or the designee of the director; (6) regional highway administrator means the director of the Texas Department of Public Safety; (7) farm vehicle means any vehicle or combination of vehicles controlled and/or operated by a farmer or rancher being used to transport agriculture products, farm machinery, and farm supplies to or from a farm or ranch; and (8) commercial motor vehicle has the meaning assigned by Texas Transportation Code, sec.548.001(1), as amended by Texas Civil Statutes, Article 6701d, sec.140A(a); (c) Applicability. (1) The regulations shall be applicable to the following vehicles: (A) a vehicle with an actual gross weight, a registered gross weight, or a gross weight rating in excess of 26,000 pounds when operating intrastate; (B) a farm vehicle with an actual gross weight, a registered gross weight, or a gross weight rating of 48,000 pounds or more when operating intrastate; (C) a vehicle designed to transport more than 15 passengers, including the driver; and (D) a vehicle transporting hazardous material requiring a placard. (2) All regulations contained in Title 49, Code of Federal Regulations, Parts 382, 385, 386, 390-393, and 395-397, and all amendments thereto pertaining to interstate drivers and vehicles are also adopted except as otherwise excluded. (3) Nothing in this section shall be construed to prohibit an employer from requiring and enforcing more stringent requirements relating to safety of operation and employee health and safety. (d) Exemptions. Exemptions to the adoption in subsection (a) of this section were made pursuant to Texas Civil Statutes, Article 6675d, sec.4 and sec.5 and are adopted as follows: (1) Such regulations shall not apply to the following vehicles when operated intrastate: (A) a vehicle used in oil or water well servicing or drilling which is constructed as a machine consisting in general of a mast, an engine for power, a draw works, and a chassis permanently constructed or assembled for such purpose or purposes; (B) a mobile crane which is an unladen, self-propelled vehicle constructed as a machine used to raise, shift, or lower weights; (C) a vehicle transporting a seed cotton module; or (D) concrete pumps. (2) Drivers in intrastate commerce will be permitted to drive 12 hours following eight consecutive hours off duty. (3) Drivers in intrastate commerce who are not transporting hazardous materials and were regularly employed in Texas as commercial vehicle drivers prior to August 28, 1989, are not required to meet the medical standards contained in the federal regulations. (A) For the purpose of enforcement of this regulation, those drivers who reached their 18th birthday on or after August 28, 1989, shall be required to meet all medical standards. (B) The exceptions contained in this paragraph shall not be deemed as an exemption from drug testing requirements contained in Title 49, Code of Federal Regulations, Part 382. (4) The maintenance of any type of government form, separate company form, driver's record of duty status, or a driver's daily log is not required if the vehicle is operated within a 150 air-mile radius of the driver's normal work reporting location if: (A) the owner has another method by which he keeps, as a business record, the date, time and location of the delivery of product or service so that a general record of the driver's hours of service may be compiled; or (B) another law requires or specifies the maintenance of delivery tickets, sales invoices, or other documents which show the date of delivery and quantity of merchandise delivered, so that a general record of the driver's hours of service may be compiled; and (C) the business records generally include the following information: (i) the time the driver reports for duty each day; (ii) the total number of hours the driver is on duty each day; (iii) the time the driver is released from duty each day; and (iv) the total time on duty for the preceding seven days in accordance with Title 49, Code of Federal Regulations, Part 395.8(j)(2) for drivers used for the first time or intermittently. (e) Exceptions. Exceptions adopted by the director of the Texas Department of Public Safety not specified in Texas Civil Statutes, Article 6675d, sec.5, are as follows: (1) Title 49, Code of Federal Regulations, Part 393.86, requiring rear-end protection shall not be applicable provided the vehicle was manufactured prior to September 1, 1991 and is used solely in intrastate commerce. (2) Drivers of vehicles under this section operating in intrastate transportation shall not be permitted to drive after having worked and/or driven for 70 hours in any consecutive seven-day period. (3) Drivers of vehicles operating in intrastate transportation claiming the 150-mile radius exemption in subsection (d)(4) of this section must return to the work reporting location and be released from work within 12 consecutive hours. (4) Title 49, Code of Federal Regulations, Part 391.11b(1), is not adopted for intrastate drivers. The minimum age for an intrastate driver shall be 18 years of age. (5) Title 49, Code of Federal Regulations, Part 391.11b(2), is not adopted for intrastate drivers. An intrastate driver must have successfully passed the examination for a Texas Commercial Driver's License and be a minimum age of 18 years old. (6) The Alcohol Testing Regulations of Title 49, Code of Federal Regulations, Part 382 will become effective January 1, 1996, for intrastate drivers. (7) The Drug Testing Regulations of Title 49, Code of Federal Regulations, Part 382, as in effect on December 21, 1990, under Part 391.81, remain in effect under this adoption of Part 382. (8) Texas Transportation Code, sec.547.401 and sec.547.404, concerning brakes on trailers weighing 15,000 pounds gross weight or less take precedence over the brake requirements in the federal regulations for trailers of this gross weight specification. (9) Texas Transportation Code, Chapter 642, concerning identifying markings on commercial motor vehicles shall take precedence over Title 49, Code of Federal Regulations, Part 390.21, for vehicles operated in intrastate commerce. (10) Title 49, Code of Federal Regulations, Part 390.23 (Relief from Regulations), is adopted for intrastate motor carriers with the following exceptions: (A) Title 49, Code of Federal Regulations, Part 390.23(a)(2) is not applicable to intrastate motor carriers making residential deliveries of heating fuels, public utilities as defined in the Public Utility Regulatory Act, the Gas Utility Regulatory Act, and the Texas Water Code and charged with the responsibility for maintaining essential services to the public to protect health and safety provided the carrier: (i) documents the type of emergency, the duration of the emergency, and the drivers utilized; and (ii) maintains the documentation on file for a minimum of six months. (B) The requirements of Title 49, Code of Federal Regulations, Parts 390.23(c)(1) and (2), for intrastate motor carriers shall be: (i) the driver has met the requirements of Texas Civil Statutes, Article 6675d; and (ii) the driver has had at least eight consecutive hours off-duty when the driver has been on duty for 15 or more consecutive hours, or the driver has been on duty for more than 70 hours in seven days. (f) Vision Waiver. Under this section the Texas Department of Public Safety may provide a waiver for a person who is otherwise disqualified under Title 49, Code of Federal Regulations, Part 391.41(b)(10) provided that intrastate drivers meet the vision standards specified in sec.16.9 of this title (relating to Qualifications to Drive in Intrastate Commerce). (1) Applications for a waiver shall be accepted by the Texas Department of Public Safety's Motor Carrier Bureau. (2) Waivers will be approved by the director or his designee and issued in conjunction with the medical examiner's certificate required by Title 49, Code of Federal Regulations, Part 391.43. (3) Waivers granted under this paragraph expire two years after the date of the medical examiner's physical examination of the vision waiver applicant. (4) Applications for renewals will be granted provided the applicant continues to meet the vision standards adopted by the Texas Department of Public Safety (intrastate drivers must meet vision standards specified in sec.16.9 of this title, relating to Qualifications to Drive in Intrastate Commerce) and all other requirements of Title 49, Code of Federal Regulations, Part 391.43; (5) Applicants denied a waiver may appeal the decision of the department by contacting the director, in writing, within 20 days after receiving notification of the denial. The director may stay the denial pending the findings of the Medical Advisory Board. The decision of the Medical Advisory Board is final. (g) Authority to Enforce. (1) An officer of the department may enter or detain on a highway a motor vehicle that is subject to Texas Civil Statutes, Article 6675d. (2) Peace officers from any of the following Texas cities certified by the department may enter or detain on a highway within the municipality a motor vehicle subject to Texas Civil Statutes, Article 6675d: (A) a municipality with a population of 100,000 or more; (B) a municipality with a population of 25,000 or more, any part of which is located in a county with a population of 2.4 million or more; or (C) a municipality any part of which is located in a county bordering the United Mexican States. (h) Training and Certification Requirements. (1) Minimum standards. Peace officers certified to enforce this article must meet as a minimum the following standards: (A) successfully complete the North American Standard Roadside Inspection Course; (B) participate in an on-the-job training program following each course with a certified officer and perform a minimum of 30 level one inspections; and (C) successfully complete an annual recertification examination. (2) Hazardous materials. Peace officers desiring to enforce the Hazardous Materials Regulations must: (A) successfully complete the North American Standard Roadside Inspection Course; and (B) successfully complete a Basic Hazardous Materials Course; (C) participate in an on-the-job training program following each course with a certified officer and perform a minimum of 30 level one inspections; and (D) successfully complete an annual recertification examination. (3) Cargo Tank Specification. Peace officers desiring to enforce the Cargo Tank Specification requirements must: (A) successfully complete the North American Standard Roadside Inspection Course; (B) successfully complete a Basic Hazardous Materials Course; and (C) successfully complete a Cargo Tank Inspection Course; (D) participate in an on-the-job training program following each course with a certified officer and perform a minimum of 30 level one inspections; and (E) successfully complete an annual recertification examination. (4) Training provided by the department. When the training is provided by the Texas Department of Public Safety, the department shall collect fees in an amount sufficient to recover from municipalities the cost of certifying its peace officers. The fees shall include: (A) the per diem costs of the instructors established in accordance with the Appropriations Act regarding in-state travel; (B) the travel costs of the instructors to and from the training site; (C) all course fees charged to the department; (D) all costs of supplies; and (E) the cost of the training facility, if applicable. (5) Training provided by other training entities. A public or private entity desiring to train peace officers in the enforcement of the Federal Motor Carrier Safety Regulations must: (A) submit a schedule of the courses to be instructed; (B) submit an outline of the subject matter in each course; (C) submit a list of the instructors and their qualifications to be used in the training course; (D) submit a copy of the examination; (E) submit an estimate of the cost of the course; (F) receive approval from the director prior to providing the training course; (G) provide a list of all peace officers attending the training course, including the peace officer's name, rank, agency, social security number, dates of the course, and the examination score; and (H) receive from each peace officer or municipality the cost of providing the training course(s). (i) Safety Audit Program. The rules in this subsection, as authorized by Texas Civil Statutes, Article 6675d, sec.15, establish procedures to determine the safety fitness of motor carriers, assign safety ratings, take remedial actions when necessary, assess administrative penalties when required, and prohibit motor carriers receiving a safety rating of "unsatisfactory" from operating a commercial motor vehicle. The department will use the Compliance Review Audit to determine the safety fitness of motor carriers and to assign safety ratings. The safety fitness determination will be assessed on intrastate motor carriers and the intrastate operations of interstate motor carriers based in Texas. (1) Definitions specific to the Safety Audit Program are as follows: (A) Compliance Review means an on-site examination of motor carrier operations to determine whether a motor carrier meets the safety fitness standard. (B) Culpability means an evaluation of the blame worthiness of the violator's conduct or actions. (C) Imminent Hazard means any condition of vehicle, employees, or commercial vehicle operations which is likely to result in serious injury or death if not discontinued immediately. (D) Satisfactory Safety Rating means that a motor carrier has in place and functioning adequate safety management controls to meet the safety fitness standard prescribed in Title 49, Code of Federal Regulation, Part 385.5. Safety management controls are adequate if they are appropriate for the size and type of operation of the particular motor carrier. (E) Conditional Safety Rating means a motor carrier does not have adequate safety management controls in place to ensure compliance with the safety fitness standard that could result in the occurrences listed in Title 49, Code of Federal Regulations, Part 385.5(a)-(k). (F) Unsatisfactory Safety Rating means a motor carrier does not have adequate safety management controls in place to ensure compliance with the safety fitness standard which has resulted in occurrences listed in Title 49, Code of Federal Regulations, Part 385.5(a)-(h). (2) Inspection of Premises. (A) Authority to Inspect. An officer or employee of the department who has been certified by the director may enter a motor carrier's premises to inspect lands, buildings, and equipment and copy or verify the correctness of any records, reports or other documents required to be kept or made pursuant to the regulations adopted by the director in accordance with Texas Civil Statutes, Article 6675d. (B) Entry of Premises. The officer or employee of the department may conduct the inspection: (i) at a reasonable time; (ii) on stating the purpose of the inspection; and (iii) by presenting to the motor carrier; (I) appropriate credentials; and (II) a written statement from the department to the motor carrier indicating the officer's or employee's authority to inspect. (C) Civil and Criminal Penalties for Refusal to Allow Inspection. (i) A person who does not permit an inspection authorized under Texas Civil Statutes, Article 6675d, s9, is liable to the state for a civil penalty not to exceed $1,000. The director may request that the attorney general sue to collect the penalty in the county in which the violation is alleged to have occurred or in Travis County. (ii) The civil penalty is in addition to the criminal penalty provided by Texas Civil Statutes, sec.10, Article 6675d. (iii) Each day a person refuses to permit an inspection constitutes a separate violation for purposes of imposing a penalty. (3) Compliance Review Audits. A Compliance Review will be conducted based upon the following criteria: (A) involvement in a fatality accident; (B) written complaints alleging violations of the Federal Safety Regulations which are substantiated by valid documentation; (C) follow-up investigations of motor carriers assessed an unsatisfactory safety rating; (D) follow-up investigations of motor carriers assessed administrative penalties resulting from enforcement actions; (E) history of non-compliance with out-of-service orders; (F) violations of the Federal Safety Regulations; (G) requests from the Legislature and state or federal agencies; (H) requests from the Texas Department of Transportation concerning violations of Texas Civil Statutes, Article 6675c; (I) requests for changes in safety rating assessed by the department; and (J) request for a safety rating determination. (4) Safety Fitness Rating. (A) A safety fitness rating is based on the degree of compliance with the safety fitness standard for motor carriers. (B) A safety rating will be determined following a compliance review using the factors prescribed in Title 49, Code of Federal Regulations, Part 385.7. The following safety ratings will be assigned: (i) Satisfactory Safety Rating; (ii) Conditional Safety Rating; (iii) Unsatisfactory Safety Rating. (C) The provisions of Title 49, Code of Federal Regulations, Part 385. 13 relating to "Unsatisfactory safety rating-Prohibition on transportation of hazardous materials and passengers" is hereby adopted by the department and is applicable to intrastate motor carriers. (D) The department will provide written notification to the motor carrier of the assigned safety rating within 15 days of the completion of the compliance review. (i) Notification of a "conditional" or "unsatisfactory" rating will include a list of those items for which immediate corrective action must be taken. (ii) A notification of an "unsatisfactory" safety rating will also include a notice that the motor carrier will be subject to the provisions of Title 49, Code of Federal Regulations, Part 385.13 which prohibit motor carriers rated "unsatisfactory" from operating a commercial motor vehicle to transport: (I) hazardous materials requiring placarding under Part 172, Subpart F, of Title 49, Code of Federal Regulations; or (II) more than 15 passengers, including the driver. (E) In addition to any criminal penalties provided by statute, a motor carrier assessed an unsatisfactory safety rating who continues to operate in violation of the notifications to cease operations under Title 49, Code of Federal Regulations, Part 385.13 will be subject to a civil suit filed by the Attorney General from a request from the director of the Texas Department of Public Safety. Each day of operation constitutes a separate violation. (F) Request for a change in a safety rating. A request for a change in a safety rating must be submitted to the Manager of the Motor Carrier Bureau within the time schedule provided in Parts 385.15 and 385.17 of Title 49, Code of Federal Regulations. (G) The safety rating assigned to a motor carrier will be made available to the public upon request. (i) Written requests should be addressed to the Texas Department of Public Safety, Motor Carrier Bureau, Box 4087, Austin, Texas 78773-0001. (ii) Oral requests by telephone will be given an oral response. (j) Administrative Penalties. (1) The compliance review may result in the initiation of an enforcement action based upon the number and degree of seriousness of the violations discovered during the review as well as those factors listed in Title 49, Code of Federal Regulations, Part 385.7. As a result of the enforcement action, the department may impose an administrative penalty against a motor carrier who violates a provision of Texas Civil Statutes, Article 6675d or a provision of the Texas Transportation Code, Chapters 541-600 (relating to the Uniform Traffic Laws), including any amendments to Texas Civil Statutes, Article 6701d not codified in the Texas Transportation Code. Each of these provisions relates to the safe operation of a commercial motor vehicle under Texas Civil Statutes, Article 6675d, sec.12(b). (2) The department shall have discretion in determining the appropriate amount of the administrative penalty assessed for each violation. A penalty under this section may not exceed the maximum penalty provided for violations of a similar federal safety regulation as provided under 49 United States Code, s521(b) and sec.5123, and Title 49, Code of Federal Regulations, Parts 386. 81 and 386.82, and Appendix A to Part 386. (A) Record keeping violations. These are violations of the administrative requirements of the Federal Safety Regulations. A penalty shall not exceed $500 for each violation. Each day of a violation shall constitute a separate violation, except that the total of all administrative penalties assessed against any violator for all violations relating to any single violation shall not exceed $2,500. (B) Serious pattern of safety violations. These violations are considered the middle range of violations between those of record keeping noncompliance and a willful case of negligence. These violations are not an isolated event but rather a tolerated pattern of noncompliance. An administrative penalty may be assessed in an amount not to exceed $1,000 for each violation; except that the maximum penalty for each such pattern of safety violations shall not exceed $10,000. (C) Substantial health or safety violations. These are violations which could reasonably lead to or have resulted in serious personal injury or death. An administrative penalty may be assessed in an amount not to exceed $10,000 for each violation. (D) Employee non-record keeping violations. These are acts committed by a driver of a non-record keeping nature that are considered to be of gross negligence or a reckless disregard for safety. The employee may be assessed an administrative penalty in an amount not to exceed $1,000. (E) Hazardous materials violations. A person that knowingly violates a hazardous material regulation is liable for an administrative penalty of at least $250 but not more than $25,000 for each violation. A person acts knowingly when the person has actual knowledge of the facts giving rise to the violation, or a reasonable person acting in the circumstance and exercising reasonable care would have that knowledge. A separate violation occurs for each day the violation, committed by a person that transports or causes to be transported hazardous material, continues. (3) The amount of the administrative penalty shall be determined by taking into account the following factors: (A) nature of the violation; (B) circumstances of the violation; (C) extent of the violation; (D) gravity of the violation; (E) degree of culpability; (F) history of prior offenses; (G) any hazard to the health or safety of the public caused by the violation or violations; (H) the economic benefit gained by the violation(s); (I) ability to pay; (J) the amount necessary to deter future violations; (K) effect on ability to continue to do business; (L) economic harm to property or the environment caused by the violation; (M) efforts to correct the violation; and (N) such other matters as justice and public safety may require. (k) Notification. (1) The department will notify a motor carrier of an enforcement action by the issuance of a claim letter. The notification will consist of the requirements of Title 49, Code of Federal Regulations, Part 386.11. (2) The notification may be submitted to the motor carrier's principal place of business by certified mail, first class mail, or personal delivery. A notification sent by mail shall be presumed to have been received by the motor carrier five days after the date of the mailing. (3) The motor carrier must reply within 20 days of receipt of a claim letter. The reply must contain: (A) an admission or denial of each allegation of the claim and a concise statement of facts constituting each defense; (B) a statement of whether the motor carrier requests an administrative hearing concerning the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty; (C) a statement of whether the motor carrier requests an informal hearing under subsection (l) of this section; (D) a statement of whether the motor carrier accepts the determination and recommended penalty; (E) a statement of whether the motor carrier wishes to negotiate the terms of payment or settlement of the amount of the penalty, or the terms and conditions of the order; and (F) a certification that the reply has been served in accordance with Title 49, Code of Federal Regulations, Part 386.31. (l) Informal hearing. (1) Request. If requested, the department will hold an informal hearing to discuss a penalty recommended under this section. Such hearing will be scheduled and conducted by the manager of the Motor Carrier Bureau or the manager's designee. (2) Procedure. An informal hearing shall not be subject to rules of evidence and civil procedure except to the extent necessary for the orderly conduct of the hearing. The department will summarize the nature of the violation and the penalty, and discuss the factual basis for such. The motor carrier will be afforded an opportunity to respond to the allegations verbally and/or in writing. (3) Resolution. In the event matters are resolved in the motor carrier's favor, the manager will send the carrier written notification that the proposed penalty is withdrawn. (4) Modified penalty. If matters are resolved resulting in a modified penalty, the manager may prepare a settlement agreement as provided by subsection (n) of this section . (5) Failure to resolve. If matters are not resolved in the informal hearing, the department will initiate a formal enforcement action as provided by subsection (m) of this section. (m) Formal Enforcement Action. (1) If the motor carrier requests an administrative hearing, fails to respond in a timely manner to the claim letter as identified in subsection (k) of this section, or does not negotiate a settlement, the department may initiate a formal enforcement action as a contested case. The department will provide written notice of such action to the motor carrier. (2) A contested case under this subsection will be governed by Texas Government Code, Chapter 2001, Subchapters C and D, and Chapter 29 of this title (relating to General Rules of Practice and Procedure), and not by Title 49, Code of Federal Regulations, Part 386, Subparts D and E. (n) Collection and Settlement. (1) If the motor carrier does not pay the amount of the penalty and the enforcement of the penalty is not stayed, the director may refer the matter to the attorney general for collection of the amount of the penalty. (2) At any time prior to the date on which a final order is issued by the director, the department and the motor carrier may agree to enter into a compromise settlement agreement. The compromise settlement agreement shall be signed by the motor carrier and the director, and will reflect that the motor carrier consents to the assessment of a specific administrative penalty or other action by the department against the motor carrier. (3) Simultaneously with the filing of a compromise settlement agreement, the motor carrier shall remit a cashier's check or money order to the Texas Department of Public Safety. (o) Suspension and revocation by the Texas Department of Transportation. (1) The director will determine whether the department will request the Texas Department of Transportation to suspend or revoke a registration issued by the Texas Department of Transportation based upon the department's compliance review. (2) This determination may be based upon the following: (A) an unsatisfactory safety rating under Title 49, Code of Federal Regulations, Part 385; (B) multiple violations of Article 6675d; (C) multiple violations of one of these rules; and/or (D) multiple violations of the Uniform Traffic Act or Transportation Code. (3) Once the determination has been made the director will forward a letter to the executive director of the Texas Department of Transportation requesting said department initiate a suspension/revocation proceeding against the motor carrier. (4) Any suspension/revocation action initiated by the Texas Department of Transportation, pursuant to this section, shall be administered in the manner specified by the rules of the Texas Department of Transportation. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 21, 1995. TRD-9600013 James R. Wilson Director Texas Department of Public Safety Earliest possible date of adoption: February 9, 1996 For further information, please call: (512) 424-2890