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 II. Texas Animal Health Commission CHAPTER 43.Tuberculosis SUBCHAPTER C.Eradication of TB in Cervidae 4 TAC sec.43.21 The Texas Animal Health Commission adopts amendments to Chapter 43, Tuberculosis, sec.43.21, General Requirements, without changes to the proposed text as published in the February 27, 1996, issue of the Texas Register (21 TexReg 1429). The amendments are necessary to amend sec.43.21(e) to require branding on the left hip rather than the jaw. This change reflects federal requirements. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, Texas Civil Statutes, Chapter 161, which provides the Commission with the authority to adopt rules and sets forth the duties of this commission to control disease. The amendment implements the Agriculture Code, sec.161.041. The agency hereby certifies that the rules as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas on May 22, 1996. TRD-9608094 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date of adoption: July 5, 1996 For further information, please call: (512) 719-0714 TITLE 22. EXAMINING BOARDS PART IX. Board of Nurse Examiners CHAPTER 217.Licensure and Practice 22 TAC sec.217.2 The Board of Nurse Examiners adopts an amendment to sec.217.2, concerning Licensure by Examination for Graduates of Basic Nursing Education Programs with no changes in the proposed text as published in the May 7, 1996, issue of the Texas Register (21 TexReg 3887). The Board of Nurse Examiners spends considerable staff time and money processing applications on individuals who request authorization to write the National Council Licensure Examination for Registered Nurses (NCLEX-RN) who have a prior criminal conviction with grounds for denial. These applicants may currently avoid paying the $100 fee charged to Petitioners for a Declaratory Order. The adopted amendment will eliminate the relitigation of these cases, all of which would have been declared ineligible to sit for the NCLEX-RN based upon a hearing before the Administrative Law Judge. The amendment will also cause the applicant to pay the same fee as Petitioners for a Declaratory Order. One comment was received with respect to the Board's authority to investigate and process eligibility matters arising from applications, to the language of the preamble and the preclusion effect of prior eligibility determination. Response: The statutory authority is clear in Article 4525a. Articulation by rule provides notice to the public and persons who may seek examination and licensure. With respect to the Board's authority regarding relitigation, the rule conforms to well established law regarding res adjudicata and the example given in the rule is clearly illustrative rather than exclusive. The amendment is adopted under the Nursing Practice Act, (Texas Civil Statutes), Article 4514, sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it and Article 4525(a) which authorizes the Board to refuse to admit persons to the licensing examination. Articles 4519a and 4525(a) are affected by this section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 10, 1996. TRD-9608146 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: July 9, 1996 Proposal publication date: May 7, 1996 For further information, please call: (512) 305-6811 CHAPTER 219.Advanced Practice Nursing Program 22 TAC sec.sec.219.1-219.3, 219.5, 219.6, 219.8, 219.11, 219.13, 219.15, 219.18 The Board of Nurse Examiners adopts amendments to sec.sec.219.1-219.3, 219.5, 219.6, 219.8, 219.11, 219.13, 219.15 and 219.18, concerning Definitions, New Programs, Accreditation, Administration and Organization, Faculty Qualifications, Faculty Policies, Curriculum, Students, Clinical Resources, and Closing of a Program with no changes to the proposed text as published in the May 7, 1996, issue of the Texas Register (21 TexReg 3888). The amendments are being adopted to conform with the APN title language which changed in 1995. The 74th Legislature changed the title of advanced nurse practitioner to advanced practice nurse. In addition to the proposed change in title and usage from "advanced nurse practitioner program" to "advanced practice nursing program", a change is proposed in rule 219.11(b) relating to curriculum that incorporates the Texas Higher Education Coordinating Board requirements for clinical nurse specialist and nurse practitioner education. In 1995, the Board of Nurse Examiners (BNE), in collaboration with the Texas Higher Education Coordinating Board (THECB), developed curricular guidelines for advanced practice nurses. These curricular components will be required for CNS and NP programs by the BNE beginning in January, 1997. These requirements have been clearly communicated to nursing programs under the authority of the THECB. The adopted amendments will bring the rule language of the Board into harmony with statutory language, and clarify curricular requirements of the Board for those advanced practice nursing programs accredited by the Board. No comments were received regarding the adoption of the amendments. The amendments are adopted under the Nursing Practice Act, (Texas Civil Statutes, Article 4514), sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. Article 4514, sec.8 is affected by this section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 10, 1996. TRD-9608147 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: July 9, 1996 Proposal publication date: May 7, 1996 For further information, please call: (512) 305-6811 CHAPTER 221.Advanced Practice Nurses 22 TAC sec.221.3 The Board of Nurse Examiners adopts an amendment to sec.221.3, concerning Advanced Practice Nurses, Education with no changes to the proposed text as published in the May 7, 1996, issue of the Texas Register (21 TexReg 3890). The amendment is being adopted to reflect the appropriate APN title language which changed in 1995. The 74th Legislature changed the title of advanced nurse practitioner to advanced practice nurse. In addition to the proposed change in title and usage from "advanced nurse practitioner program" to "advanced practice nursing program", a change is proposed in rule 221.3(4) to incorporate the Texas Higher Education Coordinating Board (THECB) requirements for clinical nurse specialist (CNS) and nurse practitioner (NP) education. In 1993, the Board of Nurse Examiners (BNE), in collaboration with the THECB, developed curricular guidelines for advanced practice nurses for CNS and NP roles and specialties. Nursing programs preparing CNSs and NPs are required to include specific courses within their curricula beginning January 1, 1997. The adopted amendment will clarify that the nursing programs under the authority of the THECB must be in compliance with their accreditation requirements beginning January 1, 1997 and NP and CNS graduates must complete their courses for Board recognition after January 1, 1998. No comments were received regarding adoption of the amendment. The amendment is adopted under the Nursing Practice Act, (Texas Civil Statutes, Article 4514), sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. Article 4514, sec.8 is affected by this section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 10, 1996. TRD-9608148 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: July 9, 1996 Proposal publication date: May 7, 1996 For further information, please call: (512) 305-6811 CHAPTER 223.Fees 22 TAC sec.223.1 The Board of Nurse Examiners adopts an amendment to sec.223.1, concerning Fees with no changes to the proposed text as published in the May 7, 1996, issue of the Texas Register (21 TexReg 3890). The Board of Nurse Examiners spends considerable staff time and money processing applications on individuals who request authorization to write the National Council Licensure Examination for Registered Nurses (NCLEX-RN) who have a prior conviction. The adopted amendment will cause these applicants to pay the same amount as those individuals who currently file a petition for a Declaratory Order seeking the same approval. Therefore, all eligibility cases will now pay the same fee. No comments were received regarding adoption of the amendment. The amendment is adopted under the Nursing Practice Act, (Texas Civil Statutes), Article 4514, sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. Article 4527 is affected by this section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 10, 1996. TRD-9608149 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: July 9, 1996 Proposal publication date: May 7, 1996 For further information, please call: (512) 305-6811 TITLE 25. HEALTH SERVICES PART I. Texas Department of Health CHAPTER 143.Medical Radiologic Technologist 25 TAC sec.sec.143.1-143.9, 143.11, 143.13 The Texas Department of Health (department) adopts amendments to sec.sec.143.1 - 143.9, 143.11, and 143.13; the repeal of 143.14; and new 143.14, 143.17 and 143.18, concerning the regulation of persons performing radiologic procedures. Sections 143.2, 143.5, 143.7, 143.9, 143.11, 143.13, 143.14, and 143.17 are adopted with changes to the proposed text published in the December 22, 1995, issue of the Texas Register (20 TexReg 10949). Sections 143.1, 143.3, 143.4, 143.6 143.8, and new 143.18 are adopted without changes and therefore will not be republished. The repeal is adopted as proposed and will not be republished. Proposed new sec.143.16 and sec.143.19, which were simultaneously proposed, are withdrawn from consideration for permanent adoption. Specifically, the sections provide for the regulation of persons performing radiologic procedures and cover purpose and scope, definitions, the Medical Radiologic Technologist Advisory Committee (MRTAC), fees, applicability, application requirements and procedures, types of certificates and applicant eligibility, examinations, standards for the approval of curricula and instructors, continuing education (CE) requirements, certifying persons with criminal backgrounds, disciplinary actions, mandatory training programs for non- certified technicians (NCTs), and registry of NCTs. New sec.sec.143.17 and 143.18 will implement Acts 1995, 74th Legislature, Chapter 613 (House Bill 1200), which amends the Medical Radiologic Technologist Certification Act (Act), Texas Civil Statutes, Article 4512m. The repeal of sec.143.14 will allow for new sec.143.14. Proposed new sec.143.16 and sec.143.19 are withdrawn as a result of comments. New sec.sec.143.14, 143.17 and 143.18 are adopted in order to comply with the legislative mandates in House Bill 1200 (HB 1200). The new sections regarding training for NCTs have raised concerns about access to care. In its rule-making efforts the department sought input from the public, radiologic technologists, physicians, chiropractors, podiatrists, registered nurses (RNs), medical physicists, physician assistants (PAs), hospitals, and other individuals and organizations in the medical community. The rule-making has been underway since September 1995. In addition, public hearings were scheduled as follows: January 9, 1996, in Midland Texas; January 11, 1996, in Austin, Texas; January 16, 1996, in Arlington, Texas; and January 17 & 18, 1996, in Houston, Texas. The department has specified the required number of hours of training for NCTs in sec.143.17. The subsection reflects the number of hours recommended to the Texas Board of Health (board) by the MRTAC. The "core" training which consists of 98 classroom/clock hours, at least one unit of human anatomy and radiologic procedures must be completed before a person may perform a radiologic procedure after January 1, 1998. The number of hours of training, in addition to the "core" hours, which must be completed will be as follows: skull - 16; chest - 15; spine -20; abdomen - 8, upper extremities - 15; lower extremities 15; and podiatric -5. For example, a person who performs x-rays of the chest must complete a total of 113 hours (98 + 15) by December 31, 1997. Likewise, a person who will perform skull, chest, spine, abdomen and extremities procedures must complete 187 hours (98 + 16 + 15 + 20 + 8 + 15 + 15) by December 31, 1997. The impact on access to care is expected to be minimized by adjusting or pearranging job duties for persons who perform radiologic procedures but who will not comply with the training requirements by January 1, 1998; practitioners performing radiologic procedures, as necessary, whenever a certified technologist or NCT is unavailable after January 1, 1998; allowing exemptions in documented hardship situations; and allowing persons to comply with the training requirements over a two-year period ending December 31, 1997. Persons who are required to comply with the training requirements are encouraged to exercise responsible consumer choice in selecting the training program which will best fulfill the needs of the person to be trained. The department will not offer or provide the training. A summary of the comments received and the department's responses are as follows. COMMENT: A comment was received regarding the definition of fluoroscopy in sec.143.2. The commenter stated the definition assumed that all fluoroscopy was performed using conventional methods. RESPONSE: The department agrees with the commenter and has added wording to clarify that it covers both digital and conventional methods. COMMENT: A comment was received regarding the deletion of definitions for "direct supervision" and "rural area" from sec.143.2. RESPONSE: The department has deleted all of sec.143.19, therefore, these definitions have been removed. COMMENT: Concerning sec.143.3, a commenter questioned whether the term "board," used in this subsection meant the Texas Board of Health or the MRTAC. RESPONSE: No changes were made as a result of the comment. The term "board" was previously clarified in sec.143.2, Definitions, and in sec.143.3(a)(2) to mean the Texas Board of Health. Both items were not proposed for amendment and did not appear with the proposed rules published in the December 22, 1995, issue of the Texas Register. COMMENT: Concerning sec.143.5(d)(3), a commenter asked that the department amend the wording to cover students of osteopathic medicine. RESPONSE: The department agrees and has added the wording. COMMENT: Two commenters expressed concerns about the wording in sec.143.6(e)(1)(J)(i)-(iii) and how the denial of an application would be impacted by the American with Disabilities Act (ADA). One of the commenters recommended that the department's legal counsel review these clauses with the ADA in mind. RESPONSE: No changes were made as a result of the comments. The department included this language in order to comply with the statutory language in the Act, as amended by HB 1200. Section 2.11 of the Act authorized the department to take disciplinary actions for the reasons stated in the rule. The department acknowledges there will be concerns and questions raised regarding the ADA in situations where the department proposes disciplinary action under these clauses. The department will comply with the ADA as it applies to the rights of licensees and applicants for a professional license. COMMENT: Several commenters asked that sec.143.7[(c)], which was proposed for deletion, be retained in the rules and that only the January 1, 1990, application deadline be deleted. Retaining and revising the rule would permit persons who had experience performing radiologic procedures from September 1, 1982 - August 31, 1987, to qualify for the general certificate or limited certificate, and continue to perform radiologic procedures without completing the training set out in sec.143.17. RESPONSE: The department agrees that the Act allows these persons to become certified and has retained and revised this subsection. The department prefers that these persons become certified as medical radiologic technologists (MRTs) and limited medical radiologic technologists (LMRTs). Then these persons will be subject to the department's renewal and CE requirements, as well as the section in the rules related to violations and subsequent actions. In the alternative, the facilities where these persons perform radiologic procedures could apply for a hardship exemption and be exempt from the certification or training rules. COMMENT: A comment was received regarding sec.143.7(c) [(d)] (3) and the application of ADA. The commenter remarked that the language was too broad and vague. RESPONSE: No changes were made as a result of the comments. This paragraph was not proposed for a change. This wording, adopted in 1988, has never been used as a basis for denial of an application. However, the language is now under subsection (d)(3) in the final rules. COMMENT: A commenter noted a typographical error in sec.143.7(e)(3), where the reference should be to the NMTCB, not the MNTCB. RESPONSE: The department agrees and has made the correction. COMMENT: Regarding sec.143.7(g) [(i)] (1), a commenter noted that the letter "d" should be added to the word "file." RESPONSE: The department agrees and has corrected the typographical error and relettered the subsection as (h)(1). COMMENT: Two commenters supported the changes in sec.143.9(b) and (c)(2) which replaced the Committee on Allied Health Education and Accreditation (CAHEA) with the name(s) of the appropriate Joint Review Committee(s). RESPONSE: The department agrees and no changes were made as a result of the comments. The department acknowledges their support. COMMENT: Concerning sec.143.9(d)(6)(E)(v), two commenters asked that the rule be changed to allow a practitioner to supervise students while the student is completing the clinical experience. One of the commenters stated that the justification was because the practitioners have the credentials to supervise students. RESPONSE: The department acknowledges that practitioners have education and training in the diagnosis of conditions and diseases and in the interpretation of diagnostic films, rather than training and education in the performance of a radiologic procedure. The department changed the rule so that a practitioner, an MRT employed at the clinical facility or an LMRT employed a the clinical facility must supervise the student. COMMENT: Concerning sec.143.9, a commenter stated that the rules were unclear as to whom could supervise students. RESPONSE: The department agrees with the comment. The additional wording in sec.143.9(d)(6)(E)(v) should clarify who may supervise students. COMMENT: The department received a comment regarding sec.143.9(d)(6)(I), where name of the agency authorized to regulate proprietary schools should be updated. RESPONSE: The department changed the wording in this subparagraph from Texas Education Agency (TEA) to the Texas Workforce Commission (TWC). COMMENT: Concerning sec.143.9(d)(6)(J), a commenter had questions and concerns about the wording and whether it was intended to limit the number of students. The commenter also stated that the rules were ambiguous regarding supervision and direction of students. RESPONSE: The department disagrees with the comment and no changes were made. The department needs the information regarding enrollment to determine the adequacy of resources, staffing and facilities. COMMENT: Regarding sec.143.9(d)(8)(A), a commenter stated that the ratio of students to technologists should be one to one. The justification was that department-approved educational programs should have the same standards as a Joint Review Committee approved program. RESPONSE: No changes were made as a result of the comment. The department determined that the proposed ratio was adequate. COMMENT: Another commenter asked that in sec.143.9(d)(8)(A), the ratio of students to the supervising MRT or LMRT also apply to a practitioner, and that the MRT or LMRT should be employed by the clinical facility. RESPONSE: No changes were made as a result of the comment. The department believes the current wording is sufficient. COMMENT: A comment stated that in sec.143.9(d)(8)(A), the clause "if the program is sponsored by an institution" was not needed. RESPONSE: The department agrees and revised the wording. COMMENT: Regarding sec.143.9(e)(1), a comment was received in support of increasing the basic theory from 120 to 132 clock hours for the categories of skull, chest, spine, extremities and chiropractic. The commenter also supported the increase for the podiatric category from 60 to 66 clock hours. RESPONSE: The department agrees with the comment and no changes were made. COMMENT: A comment on sec.143.11(k) regarding the partial exemption suggested that the wording be changed to clarify that " . . . one-half of the CE requirements will be considered non-ionizing and indirect." RESPONSE: The department agrees with the request for clarification, but disagrees with the suggested language. A technologist receives no "credit" for successful completion of an examination. Rather, the technologist is excused from one-half of the required number credits. The concept of an "exemption" is different from the concept of a "credit." In addition, a "non-ionizing radiation" topic can never be an "indirect" topic, and vice-versa. An explanation of the term "indirect" can be found in sec.143.11(c)(3), which was not proposed for amendment. The wording in subsection (k) has been clarified to indicate that the balance of the CE credits must be directly related to the performance of a procedure utilizing ionizing radiation. COMMENT: A comment was received asking that the magnetic resonance imaging (MRI) examination offered by the American Registry of Radiologic Technologists (ARRT) be added to sec.143.11(k). RESPONSE: The department agrees and added the wording. COMMENT: Concerning sec.143.14(b)(6), a commenter stated that the rule was vague as to whom had the power to determine an impairment. RESPONSE: No changes were made as a result of the comment. The wording was taken directly from the statute. The application of both the rule and the statute fall under the rules for a contested case hearing, and by Chapter 2001, Government Code. Hence, the department may only propose disciplinary action. The hearing examiner prepares a proposal for decision which is forwarded to the Commissioner of Health. The hearing examiner would be in a position to determine whether the proposal was based on adequate or appropriate information regarding the person's incapacity. COMMENT: Concerning sec.143.14(c)(8), comments were received regarding the performance of radiation therapy by a certified MRT whose education and training were in only diagnostic radiography (x-ray). The rationale for the comments were based on the fact that the entry level education for radiation therapists was being raised to a baccalaureate degree in the year 2000 due to the explosion of technological advancements in the field and the complexity of the curriculum. RESPONSE: No changes were made as a result of the comments. The proposal to issue "specialty" certificates is not without merit, but requires a substantive change to the rules. The commenters' proposal would be best addressed through future rule-making. COMMENT: Concerning sec.143.14 (c)(19), a commenter asked that the wording "in the workplace" be deleted from the rule. RESPONSE: No changes were made as a result of the comment. The department disagrees with the comment because it is not unheard of for a patient to become a spouse, or for a spouse to become a patient. COMMENT: Concerning sec.143.16, a comment was received requesting that the proposed rules be amended to include a category of dangerous and hazardous procedures which could be performed only by RNs, PAs, or certified MRTs. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: Concerning sec.143.16, another commenter stated that because training for RNs and PAs did not include any of the technical aspects of diagnostic radiology, there was no justification for an additional list of radiologic procedures which could be performed by RNs or PAs. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: Concerning sec.143.16 and RNs, a commenter stated that RNs commonly assist with fluoroscopy procedures under the direction of a practitioner. The commenter further stated that the rules of the Texas State Board of Nurse Examiners' (BNE) "Standards of Nursing Practice" require the RN to "accept only those nursing assignments that are commensurate with (their) own educational preparation, experience, knowledge and ability." The commenter asked that an RN who performed radiologic procedures, for which they have been trained, under the direction of a practitioner be exempted from the restrictions of this section. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: Under sec.143.16 a commenter asked whether the operation of a gamma camera was a dangerous or hazardous procedure, and whether an RN could operate the camera. RESPONSE: No changes were made as a result of the comment. The operation of a gamma camera does not constitute the performance of a radiologic procedure, as the gamma camera does not utilize ionizing radiation. The source of radioactivity is the radiopharmaceutical administered to the patient being imaged by the camera. A person who handles and administers the radiopharmaceutical to the patient performs a radiologic procedure according to the definition of radiologic procedure contained in the Act. COMMENT: Regarding sec.143.16 a comment was received asking that the rules identify hazardous procedures which RNs and PAs can perform. The commenter stated that this would be helpful in rural areas where RNs and PAs perform radiologic procedures. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: Several comments were received in support of the list of hazardous procedures. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: Concerning sec.143.16, several commenters agreed with the proposed list of dangerous or hazardous procedures. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: Concerning sec.143.16 (b) & (c), several commenters asked that the definitions of "dangerous" and "hazardous" be changed so that they are less ambiguous. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: Concerning sec.143.16, one commenter urged that the department seek input from the BNE and the Texas State Board of Medical Examiners (BME) before adopting a list of dangerous or hazardous procedures. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The department agrees with the comments. Input from these boards was requested in October 1995. Written comments from the BNE were received in January and February 1996. No written comments were received from the BME. The departmet has requested that these agencies submit proposed language which specifically addresses dangerous and hazardous radiologic procedures and training for RNs and PAs. COMMENT: Several comments were received which went beyond the proposed language in sec.143.16 and urged the department to either issue specialty certificates for the various disciplines of radiologic technology: radiography, nuclear medicine technology and radiation therapy, or restrict the scope of practice for the certified MRT because of safety and liability issues. Many of the comments specifically asked the department to adopt rules that would allow only a registered radiation therapist to perform radiation therapy. RESPONSE: The department agrees with the concerns and will reconsider the issue of recalling all general certificates and issuing specialty certificates at a later date. The proposal did not address these issues. New rules cannot be adopted at this time to address these concerns. The department urges technologists, organizations and other interested persons or groups to make note of the new sec.143.14. Violations and Subsequent Actions, subsection (c)(8). Complaints about certified MRTs violating this subsection may be submitted to the department through the complaint hotline: 1-800- 942-5540. COMMENT: Regarding sec.143.16, many commenters remarked that there were no radiologic procedures which should be performed by persons who are not certified MRTs, and that all persons who perform radiologic procedures should be certified MRTs and LMRTs. No one should be allowed to be NCTs or exempt. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The department agrees that when incorrectly or inappropriately performed, all radiologic procedures are dangerous or hazardous. The department agrees that if all persons had to be certified and there were no exemptions, the rules could be greatly simplified. However, rule-making was done in response to a specific legislative mandate which allows NCTs and exemptions. COMMENT: Concerning sec.143.16, a comment was received concerning on-the-job trained technologists who have many years of experience performing dangerous or hazardous procedures in hospitals which participate in the federal Medicare cost-reimbursement program or which are accredited by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). The commenter was concerned because even if the technologist completed the training in sec.143.17, the technologist would not be allowed to perform a dangerous or hazardous procedure. The commenter urged the department to make a provision for this group so they would not become unemployable or apply for a hardship exemption. RESPONSE: The department determined that a change in sec.143.7 was needed as a result of the comment. The department acknowledges the concerns about on the job trained technologists with many years of experience who did not apply for certification under the "special provisions for persons who have performed radiologic procedures during the five year period immediately preceding September 1, 1987 (September 1, 1982 through August 31, 1987)." Section 143.7(c) was rewritten to allow these technologists to apply for either the general or limited certificate, based on their length of experience. With certification, the technologist would not be restricted to only non-dangerous or non-hazardous procedures. COMMENT: Two commenters had concerns about the impact of sec.143.16 on rural health clinics (RHCs). The commenters alleged that the section as proposed would be detrimental to the clinics because "the proposed rules begin to move some basic radiographic examinations into the realm of hazardous and/or dangerous examinations...inhibit[ing their] ability to train nurses to provide these services..." RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: Concerning sec.143.16, a commenter stated "[t]he list of 'dangerous' procedures was too broad when applied to hospitals." The commenter asked that NCTs in JCAHO accredited or Medicare-certified hospitals be allowed to perform computed tomography, interventional radiography, including angiography, fluoroscopy and or fluorography, and cineradiography. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: Under sec.143.16, a commenter asked if personnel performing one specific dangerous procedure could be "grandfathered in," or be exempt from the mandatory training requirements and instead be allowed to take a very brief proficiency exam limited to the one specific dangerous procedure. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The mandatory training requirements are for persons who may not perform dangerous or hazardous procedures. The training requirements do not apply to the situation described in the comments. In order to perform a dangerous or hazardous procedure, the person must be certified by the department as an MRT. The person could be "grandfathered in" under the provisions of sec.143.7(c), if the person had two years of experience performing radiologic procedures during the five year period September 1, 1982 - August 31, 1987. To perform a dangerous procedure the person must be an MRT. To perform a hazardous procedure on or after January 1, 1997, the person must be an MRT or LMRT. A proficiency examination was not authorized in HB 1200. COMMENT: A comment was received asking that sec.143.16 be amended so that senior students in a Joint Review Committee-accredited educational program could be employed to perform the procedures under the supervision of a certified MRT. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. The employed students would be allowed to perform non-dangerous or non-hazardous procedures if they have completed the training requirements for NCTs set out in sec.143.17(d). Concerns about if and when students in traditional education programs have completed the NCT training requirements will also be addresed through future rule-making. COMMENT: Regarding sec.143.16, a commenter agreed with pediatric radiography being listed as a hazardous procedure because these exams are some of the most challenging exams, even when performed by skilled technologists. The commenter indicated that these exams require expert knowledge in radiation safety, radiographic exposure, positioning and anatomy. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: A commenter stated that pediatric radiography should remain in sec.143.16 because in general, proliferating tissues are more radiosensitive. According to the commenter [most] people do not reach a level of radioresistance until approximately age 20, and that special skills in both imaging and radiation protection are required for pediatric radiography. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: A commenter stated that chest radiography is a difficult procedure that requires some talent for positioning in order to ensure that the entire lung field is included on the film. RESPONSE: During the rule development process, chest radiography was identified as a hazardous procedure, but was later removed from the list. Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule- making. COMMENT: A commenter stated that radiographs of the ribs were not mentioned in the proposed rules at sec.143.16. The commenter assumed that they would be included in chest radiography although the technique is significantly different. RESPONSE: No changes were made as a result of the comments. Training regarding rib radiography is covered under the chest component under sec.143.17 (d). COMMENT: A commenter suggested that in sec.143.16, "[p]erhaps a better way to address the problem [of identifying dangerous or hazardous procedures] is to list those procedures that may be performed by NCT personnel." RESPONSE: No changes were made as a result of the comments. The department's objective was to carry out the legislation which clearly indicates that the dangerous or hazardous procedures must be identified by rule. Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule- making. COMMENT: In sec.143.16 (b), several commenters asked about RCVTs performing fluoroscopy in a cardiac catheterization lab. Some of the commenters requested an exemption from either the rule or from the penalties. RESPONSE: The department acknowledges the concerns expressed, but has no authority to exempt the RCVTs from the rules or the penalties. The department will continue to study the issues and welcomes the continued input from the cardiovascular technology community. COMMENT: Many commenters asked why the department would allow an LMRT to perform the dangerous procedures as set out in the proposed sec.143.16(b), including administrations of radiopharmaceuticals, brachytherapy and radiation therapy. RESPONSE: The department agrees with the concerns expressed and did not intend to allow an LMRT to perform beyond the limited scope of practice. The wording will be clarified in future rule-making. An LMRT may not perform any dangerous procedures and may only perform those hazardous procedures which are within the LMRT's certification. COMMENT: Several comments were received indicating agreement with the listof procedures which the NCT should not perform in sec.143.16 (b). RESPONSE: The department acknowledges the comment in support of the proposal. Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. COMMENT: Regarding the proposed sec.143.16(b)(2), a commenter objected to the rule allowing a Registered Nurse (RN) to administer a radiopharmaceutical. The commenter asked that the rule indicate that the RN must be able to demonstrate that he/she was trained in the safe handling of radioactive materials in appropriately restricted areas since the injection of radiopharmaceuticals extended beyond the arena of just patient exposure (the patient becomes a source of radioactivity for a period of time and can expose others). RESPONSE: More information is needed in order to make a decision about procedures an RN may perform. The concerns would be best addressed through future rule-making. COMMENT: A comment was received indicating "[t]he phrase "... unless administered by a registered nurse" in sec.143.16 (b)(2) might be misleading. The commenter stated that it appeared to grant blanket approval for RNs to administer radiopharmaceuticals, regardless of training in the safe use of radiopharmaceuticals. The Bureau of Radiation Control (BRC) was responsible for reviewing user qualifications for all individuals who work with radiation, including personnel who handle and inject radioactive materials (technologists and nurses)." RESPONSE: More information is needed in order to make a decision about procedures an RN may perform. The concerns would be best addressed through future rule-making. COMMENT: A comment was received from the Texas Radiation Advisory Board (TRAB) on April 17, 1996, regarding sec.143.16(b) and (c). The TRAB recommended differentiating therapeutic nuclear medicine procedures as hazardous procedures, and diagnostic nuclear medicine procedures as dangerous procedures. Further, the TRAB recommended designating the administration of therapeutic quantities of radionuclides as a hazardous procedure. RESPONSE: The comments, which were not received in time to be considered by the MRTAC, would be best addressed through future rule-making. COMMENT: Another commenter suggested that more specific criteria for designating procedures as either dangerous or hazardous in sec.143.16 be added to (b) and (c). The commenter asked the department to recognize that the real danger or hazards associated with radiologic procedures was a missed diagnosis due to poor image quality as a result of operator error. The missed diagnosis could result in significant patient injury, suffering or death. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: Several commenters asked that sec.143.16(b)-(d) be clarified regarding which radiologic procedures the LMRT may perform, and that a cross-reference be made to sec.143.7 regarding the LMRT's scope of practice. Several commenters suggested moving subsection (d) so that it appeared before the wording in (b) and (c). RESPONSE: The department agrees with the commenters and will strengthen and clarify the wording in these subsections through future rule-making. COMMENT: Concerning sec.143.16(c), two commenters asked that skull radiography, identified in the proposed rules as hazardous procedures, be modified to exclude anterior, posterior, lateral, Caldwell and Water's views. One of the commenters later added a fifth view, Townes, to the list of those that should be excluded from the hazardous procedures list. The commenters stated that NCTs could be properly trained to perform these views of the skull and that the appropriate training should be added to sec.143.17 regarding mandatory training for NCTs. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. It is important to note here that if an NCT receives training on procedures which are included in the future rules, the NCT will not be permitted to perform the identified hazardous procedures. COMMENT: Concerning sec.143.16(c), a commenter noted, "Pediatric radiography is not defined. It is unreasonable to proscribe routine procedures simply on the basis of a patient's age. There is no compelling rationale to make this distinction." RESPONSE: The department will consider adding a definition for "pediatric" in sec.143.2 concerning definitions in future rule-making, when addressing hazardous procedures. COMMENT: Several commenters stated that sec.143.16(c) was too restrictive and asked that skull, pediatric, spine, shoulder, pelvic and sternum radiographs be excluded from the hazardous list. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration in order to allow more time for comments regarding hazardous radiologic procedures. The comments would be best addressed through future rule-making. COMMENT: A comment was received that the list of hazardous procedures in sec.143.16(c) should be reconsidered as it applied to the hospital setting. A survey by the commenter indicated that many hazardous procedures are now performed by NCTs in a hospital setting. The commenter recommended that the list of hazardous procedures be revised to permit the performance of the procedures in a hospital which either participated in the federal Medicare cost reimbursement program or was accredited by the JCAHO. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: A comment was received concerning the effective date of sec.143.16(c), regarding hazardous procedures. The commenter noted that many of the procedures identified as hazardous were being performed at the current time by persons who were not MRTs or LMRTs. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: Commenters asked that sec.143.16(c)(4) regarding pediatric radiography be amended to exclude not only the extremities, but also the abdomen and chest. One of the commenters stated that these radiologic procedures were necessary in emergency situations and gave examples of aspirations of foreign objects or substances and life-threatening bowel obstructions. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: One commenter suggested that sec.143.16(c)(4) would preclude an Advanced Practice Nurse (APN) from performing chest x-rays to determine if a pediatric patient had pneumonia, and that the rules did not define what age determines who is a pediatric patient. RESPONSE: A definition of "pediatric" will be addressed in future rule-making. COMMENT: Concerning sec.143.16(c)(5), a commenter stated that oblique spine projections and L5-S1 spot films would fall under the procedures identified as hazardous, and that in the commenter's opinion there were no more hazards associated with these procedures than with the non-hazardous spine projections. In the opinion of the commenter, there was no justification for identifying these radiologic procedures as hazardous when more difficult examinations were not defined as hazardous. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: Concerning sec.143.16(c)(5), commenters asked that the hazardous spine radiography procedures be changed from "spine radiography, excluding anterior- posterior/ posterior-anterior (AP/PA) and lateral views," to read "[f]lexion and [e]xtension spine radiography." RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: Concerning proposed sec.143.16(c)(5), a commenter stated that the spine radiography procedures identified as hazardous would require a practitioner to employ an MRT or LMRT to attain efficient use of personnel in a private office. The commenter further stated that the fiscal note in the proposed preamble oversimplified the economic impact to solo practitioners. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. The department agrees that the economic impact to the health care community has not been identified. Until the rules are adopted, the department will not approve training programs. Because there are no approved training programs for NCTs, it is difficult to accurately speculate what the cost of the training might be. The department anticipates that the cost of training NCTs and/or the cost of employing certified MRTs and/or LMRTs will be offset by savings of time, equipment, and supplies when procedures are performed correctly without repeated exposures. The department acknowledges that the overall impact, including costs and benefits, of the rules implementing the legislative mandate are unknown at this time. It is not the intent of the department to oversimplify or minimize the cost to those who are required to comply. The department regrets that it did not have all the information needed at the time to determine the actual cost to those required to comply. In providing the cost estimate in the proposed preamble, the department complied with the requirements set out by the Office of the Secretary of State. COMMENT: Concerning sec.143.16 (c), a commenter stated that the inclusion of oblique spines and other special views was arbitrary and should be left to the practitioner's discretion and judgement regarding the employee's capabilities. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. In HB 1200, the Texas Legislature authorized the board to determine the list of dangerous or hazardous procedures which may only be performed by a practitioner or MRT. The Legislature did not authorize the board to determine which procedures are best left to the practitioner's discretion or judgement. COMMENT: Concerning sec.143.16 (c), a commenter stated that the list would no longer allow an NCT to perform excretory urograms and oral cholecystograms under the guidance of a physician. The commenter stated the proposed rules "... were completely arbitrary, reflective of a trend to monopolize and not mandated by consideration of quality or public good." RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. The purpose of the Act is to "protect the health and safety of the people of this state from the harmful effects of excessive radiation used for medical purposes by establishing minimum standards..." In 1995 the Texas Legislature authorized the board to, "... by rule, identify radiologic procedure that are dangerous or hazardous and that may only be performed by a practitioner or an MRT certified under [the] Act." COMMENT: Regarding sec.143.16 (d), a commenter stated that "scope of practice" was a "vague assertion." The commenter stated that the "Texas License does not prescribe 'scope of practice' for licensed physicians, nor should it do so (unless there is explicit waiver for physicians and osteopathic physicians)." RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. The commenter possibly misconstrued the proposed rule. In sec.143.16(d), the catch title for the subsection was "Scope of Practice." The rule was intended to clarify that the department's rules did not authorize LMRTs to perform beyond the scope of practice for the LMRT. In addition, the department's rules do not intend to authorize a practitioner, whether a podiatrist, chiropractor or licensed physician (allopathic or osteopathic), to perform radiologic procedures beyond the scope of the license. For example, the rules do not authorize a podiatrist to perform a chest x-ray. COMMENT: Concerning 143.16(f) regarding mammography, several commenters in the radiation therapy community asked that a similar subsection be included for radiation therapy. RESPONSE: The department agrees that radiation therapy should have similar stringent standards. House Bill 63 (HB 63), passed by the 73rd Texas Legislature, 1993, required the adoption of very strict standards for mammography systems. No equally stringent standard exists for radiation therapy systems at this time. If the legal authority existed for such measures, the department would consider adding the issue under future rule-making. Complaints regarding technologists performing radiation therapy may be made by calling the Professional Licensing and Certification Division - Complaint Hotline: 1-800- 942-5540. Complaints regarding radiation therapy devices or equipment may be made by calling the BRC at (512) 834-6688. COMMENT: A comment relating to sec.143.16(f) indicated that the commenter believed the wording intended to regulate who could interpret or read a mammogram. RESPONSE: HB 63, also known as the Health and Safety Code sec.401.421, et seq., established standards regarding the qualifications of physicians who may interpret or read mammograms. The code also stated that a certified MRT was the person qualified to perform the radiologic procedure known as the mammogram. The code did not allow a licensed physician to perform a mammogram. The proposed sec.143.16 included a reference to the code and the rules adopted to implement the code, in order to aid the understanding of the reader. The reference will be included in future rule-making regarding dangerous and hazardous procedures. Mammography may be performed only in facilities which hold a current Texas Certificate for Mammography Systems (TCMS). Moreover, only interpreting physicians, technologists and physicists listed on the approved application for the facility may participate in the mammography system's operations. Persons needing more information about TCMS are encouraged to contact the BRC at (512)834-6688, or consult the Health and Safety Code sec.401. COMMENT: A commenter remarked that the proposed subsection 143.16(h) required that persons obtain the evaluation of a licensed medical physicist when seeking an amendment to subsections (b) or (c), yet the department provided no indication that such an evaluation had been made regarding the procedures identified in subsections (b) or (c). The commenter asked for a report of the determination of the MRTAC on the hazardous nature of the procedures listed. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. COMMENT: Several commenters asked that sec.143.16(h) be either modified or deleted. RESPONSE: Proposed new sec.143.16 has been withdrawn from consideration for permanent adoption to allow more time for input. COMMENT: Two comments were received regarding the wording in sec.143.17(a). The commenters indicated that the wording implied that a person who completed the training in this section would be "banned" for "barred" from becoming a certified MRT in the future. RESPONSE: The department clarified that the training completed may not be used toward the educational requirements for a general or limited certificate described in sec.143.7. COMMENT: A comment was received regarding sec.143.17(c), indicating that the instructors should be approved by the department, not just have to meet the instructor approval requirements. RESPONSE: No changes were made as a result of the comment. The department agrees with the comment. The comment would be best addressed through future rule- making. COMMENT: A commenter stated that the training specified in sec.143.17(d) appeared to be minimally acceptable and stressed that knowledge of anatomy alone was insufficient for proper training. The commenter indicated that persons taking x-rays needed a special type of training regarding patient positioning and technique selection, even on the most modern electronically phototimed equipment. RESPONSE: The department agrees and no changes were made as a result of the comment. COMMENT: Regarding sec.143.17(d), a commenter stated that the number of hours was not excessive and that there was no justification for adopting a lower number of hours when the health status of the patient is involved. RESPONSE: The department agrees and no changes were made as a result of the comment. COMMENT: One commenter noted that the proposed sec.143.17(d) exceeded 120 hours and was inconsistent with the hours discussed during negotiations about HB 1200. RESPONSE: No changes were made as a result of the comment. The number of hours specified in sec.143.17 (d) was recommended to the department by the MRTAC. The MRTAC was apprised of the "minimum of 120 hours" discussed during the legislative session. The MRTAC noted that 120 hours could not adequately cover the difficult subject matter set out in subsection (d). COMMENT: Comments were received stating that the training requirements in sec.143.17(d) went beyond the "minimum of 120 hours" discussed during the legislative session. RESPONSE: No changes were made as the result of the comments. The number of hours specified in sec.143.17 (d) was recommended to the department by the MRTAC. The MRTAC was apprised of the "minimum of 120 hours" discussed during the legislative session. The MRTAC noted that 120 hours could not adequately cover the difficult subject matter set out in subsection (d). COMMENT: Several comments were received indicating the 40 hours of radiation safety in sec.143.17(d)(1)(A) were excessive. RESPONSE: No changes were made as the result of the comments. The department agrees with the recommendation from the MRTAC which determined that 40 hours was appropriate due to the difficult nature of this important topic. COMMENT: Regarding sec.143.17 (d), four comments were received stating that 143 hours of training were excessive to perform an x-ray of the wrist and ankle. The commenters asked for an exemption for these simple x-rays. RESPONSE: No changes were made as a result of the comments. The correct number of hours which must be completed in order to perform these x-rays is 128. The hardship exemptions will be addressed through future rule-making. The commenter is invited to review the hardship exemptions. Hardship applications will be available after the rules relating to hardship exemptions are adopted. COMMENT: A comment was received regarding sec.143.17(d) which stated that the core training of 90 or more hours was excessive for an office assistant who would only perform a chest or finger x-ray, and that 15 hours of training was excessive for a finger x-ray. RESPONSE: No changes were made as a result of the comment. The 98 hours of training for the "core" subjects and the 15 hours for upper extremities are the minimum number of hours recommended by the MRTAC. COMMENT: Many comments were received in support of the number of hours and the anatomical areas identified in the training requirements in sec.143.17(d). Several commenters asked the department to resist reducing the training requirements because of pressure from the medical community. RESPONSE: The department agrees and no changes were made as a result of the comments. COMMENT: A commenter asked that the 98 hours specified in sec.143.17(d)(1)-(4) be reduced to 25 hours. RESPONSE: No change was made as a result of the comment. The department disagrees with the suggestion and maintains that 98 hours is appropriate for the difficult nature of the subject matter, and to protect the public. COMMENT: A commenter requested that the 98 hours set out in sec.143.17 (d)(1) be reduced to 80 hours and the 85 hours in (d)(2) be reduced to 65 hours. RESPONSE: The department disagrees and no changes were made in (d)(1) as a result of the comment. The department has determined that 98 hours is appropriate. The department partially agrees with the comment in (d)(2), where the number was reduced to 78 hours. An additional 16 hours of training for the skull unit was added later. The hours for (d)(1) and (2) now total to 192 hours. However, there appears to be no need for a person to complete both the podiatric unit and the lower extremities unit. Thus, the actual number of hours required to perform procedures of the skull, chest, spine, abdomen, and upper and lower extremities totaled 187 hours. COMMENT: A comment was received indicating that the number of hours in sec.143.17(d) should be increased to 400 clock hours of classroom training and 200 clock hours of clinical training. RESPONSE: No changes were made to the rules as a result of the comment. The department disagrees and has determined that 187 hours is appropriate. COMMENT: A commenter asked that the number of hours in sec.143.17(d) be reduced to a total of 120 hours. The commenter implied that fewer hours should be needed for persons who already had experience in radiologic technology. RESPONSE: No changes were made to the rules as a result of the comment. The department considered establishing two sets of requirements, one for entry-level personnel and another level for persons who had previous experience. The department determined that this would be confusing, ambiguous and would possibly create numerous questions and concerns. There were persons who have had extensive experience in a short period of time, and others who have had narrow or limited experience over an extensive period of time. Setting up a two-tiered or multitiered training was determined to be too difficult to administer and would not appreciably reduce the number of hours needed to assure adequate radiation safety and protection. COMMENT: A commenter noted that in sec.143.17 (d)(1)(B) that an NCT must have 25 hours in radiation equipment topics while the LMRT must have only 15 hours. The commenter also noted that the LMRT must have six hours for chest anatomy and the NCT must have 15 hours for the chest unit. The commenter asked the numbers of hours be reduced for the NCT. RESPONSE: No changes were made as a result of the comments. Based on the overall number of hours for the NCT and the LMRT, the NCT must complete 27 per cent of the LMRT hours. Some of the classroom hours are higher for the NCT as compared to the LMRT because there is no clinical component for the NCT training. COMMENT: Concerning sec.143.17(d)(1)(D), several commenters questioned how patient care relating to radiologic procedures could possibly be covered in only eight hours. RESPONSE: No changes were made as a result of the comments. The department appreciates the concerns of the commenters but did not accept the comments for a rule change. Presently, there are no patient care training requirements for NCTs currently performing radiologic procedures. The department believes that eight hours of training, excluding cardiopulmonary resuscitation and similar courses, is the minimum number of hours a person should complete. The department encourages practitioners and health care organizations to provide opportunities to staff who are involved in patient care to complete additional training in universal precautions; first aid; moving patients safely and body mechanics; aseptic and sterile techniques; recognizing emergency situations and reporting a code; managing patients with catheters, IV's, chest tubes and feeding tubes; managing pediatric, combative, elderly or disabled patients; patient confidentiality; medical records; medical ethics and more, in order to improve patient care. COMMENT: A comment was received regarding sec.143.17(d) indicating that the commenter may have confused the terminology and/or training for NCTs with that for LMRTs in sec.143.9. The commenter stated that the LMRT should complete no more than 60 hours of training rather than the 98 hours proposed. The comment was construed to mean that the training for NCTs described in sec.143.17 should be reduced. RESPONSE: The department disagrees and no changes were made as a result of the comment. The appropriate number of hours for the core training remains at 98 hours. COMMENT: Several comments were received regarding sec.143.17(d) which asked that the training be specific to different practice settings and/or different geographic settings. RESPONSE: No changes were made as the result of the comments. The department acknowledges that radiographic procedures need to be tailored for each practice setting, the preferences of each practitioner, and the special needs of each patient. The department, however, is responsible for establishing a registry of NCTs, and the type of training each NCT completed will be part of the registry. The training specified in this section is basic, entry-level training that provides a "platform" for more specific training needed in different practice settings and locales. The department believes that training labeled by practice setting, such as family practice, chiropractic, orthopedic, or rural, may confuse both the public and the medical community. During their careers, NCTs may work for different types of practitioners or in different locations. The department believes the current method of identifying the training requirements by anatomical units is simpler and the best method of designating the NCT's training on the registry. COMMENT: A comment was received regarding sec.143.17(d), indicating that the commenter did not believe that geographic location (urban/suburban/rural) was related to the training required in order to perform a radiologic procedure. RESPONSE: The department agrees and no change was made as the result of the comment. COMMENT: Several commenters asked if the training described in sec.143.17(d) applied to their practice. The commenters asked what requirements would have to be fulfilled and how they would know whether the training would be accepted by the department. RESPONSE: No changes were made as a result of the comments. The training requirements must be completed by each person performing radiologic procedures who is not currently certified as an MRT or LMRT by the department, or who is not a practitioner. The training must be completed by January 1, 1998. Once the rules are adopted, training program applications will be accepted and processed by the department. Each training program approved by the department will receive written notification. The department will make a list of approved programs available to interested parties. COMMENT: Regarding sec.143.17(d), a commenter remarked that the training would not "... greatly improve the NCT's ability to safely perform the radiologic procedures required for a particular specialty." The commenter stated that "...the key to safe and quality radiography is on-the-job training where the technologist is required to actually demonstrate the ability to safely take quality radiographs." RESPONSE: No changes were made as a result of the comment. The department agrees with the commenter that training alone is not an assurance of competency. The rules require that approved training programs must use written and oral examinations to periodically measure student progress. The department encourages practitioners to require staff, or applicants for employment, to demonstrate proficiency before performing a radiologic procedure on human beings, just as practitioners would observe the safe performance of other medical procedures such as taking a blood sample or measuring arterial blood pressure. COMMENT: A commenter requested that the training requirements in sec.143.17(d) be reduced to one fifth or less." RESPONSE: The number of hours in sec.143.17(d)(1) and (d)(2)(A)-(C) and (E)-(G) were not changed as a result of the comment. The number of hours for the abdomen in (d)(2)(D) was changed from 15 hours to eight hours. COMMENT: Regarding sec.143.17(d), a comment was received in support of mandatory education and training. Based on the commenter's own personal experience and observations, most NCTs used no shielding or collimation, even on pediatric patients. The commenter further indicated that a PA who performed radiographic procedures repeated exams numerous times and did not identify films before they were processed. RESPONSE: The department agrees with the concerns stated by the commenter and no changes were made to the rules as a result of the comment. Training for PAs would be best addressed through future rule-making. COMMENT: A commenter disagrees with the training program approval procedures required in sec.143.17(e) - (g). The commenter further stated that the programs should be more flexible and administered by a practitioner, who should have the discretion to choose the teacher and the course of instruction. RESPONSE: No changes were made as a result of the comment. The department agrees with the commenter and feels that sufficient flexibility already exists in the rules. A training program could be set up in a manner very similar to what the commenter requested. The minimum requirements were established in order to standardize the training throughout the state, bearing in mind that employees will inevitably change occupations and employers. COMMENT: A comment was received stating that under sec.143.17(e) - (g), the rules should allow a practitioner to hire a certified MRT as a consultant to test, train and/or retrain the NCT. The commenter stated that the department could adopt a standardized and practical training manual specific to the provider's specialty. RESPONSE: No changes were made as a result of the comment. The department agrees with the commenter's concepts and feels the rules already allow the type of training described. The department urges the commenter to develop the training program and apply for approval after the rules are effective. Concerning development of a practical training manual, the department encourages those who are uniquely qualified to develop a manual and make it available to practitioners and NCTs. COMMENT: A comment was received regarding sec.143.17(f)(10) concerning the correct name for the agency which approves proprietary schools. The functions were transferred from the TEA to the TWC. RESPONSE: The department agrees with the comment and updated the wording in this subparagraph. COMMENT: Regarding sec.143.17(j), several commenters asked if an RN would qualify for any previously completed training. RESPONSE: The department added wording in subsection (j) to clarify that continuing education accepted by the BNE, and which met the requirements of sec.143.17(d) would count toward previously completed education. COMMENT: A comment was received regarding sec.143.17(j) requesting that the rules be amended to explicitly provide for RNs to receive a certain number of hours of credit for completion of a professional nursing program and urged the department to consult with the BNE. RESPONSE: The department had not addressed the RN in the final rules other than to indicate that by September 1, 1996, the department would recommend proposed rules to the board. The comment would be best addressed through future rule- making. COMMENT: Two comments were received asking that the credit in sec.143.17(j) not be tied to the CE credits for the MRT or LMRT. RESPONSE: Other than the change mentioned in the previous comment/response, no further changes were made as a result of the comments. The department urges the commenters to carefully review the CE requirements for MRTs and LMRTs described in sec.143.11. The department feels the CE rules are very broadly written, and it is quite possible that any structured, preplanned education could meet the requirements. Any previously completed credit would have to meet the requirements of sec.143.17(d). COMMENT: Under sec.143.17(j)(5) a commenter asked that the department consider additional documentation as proof of successful completion of previously completed training. RESPONSE: The department agrees and additional wording has been added. COMMENT: A commenter noted that the rules did not consider whether the radiologic procedure would be performed by health care professionals such as PAs and RNs , nor the locale in which the procedure would be performed. RESPONSE: The department agrees with the commenter that the rules do not indicate that the training of PAs and RNs was taken into consideration. At the time the rules were being prepared for publication, the information regarding the education of PAs and RNs, as it applied to radiographic procedures, was not adequate to make an informed decision. The comment would be best addressed through future rule-making. More information is still needed in order to make a recommendation regarding the appropriate number of hours will be provided to the board by September 1, 1996. COMMENT: A commenter stated that in sec.143.17, the rules did not take into account whether the person was an RN or PA, and asked that the course content be changed to delete those portions which are unnecessary for an RN or PA. RESPONSE: The department agrees with the concern and plans to make a recommendation to the board by September 1, 1996, as to the training required of RNs and PAs. COMMENT: Regarding sec.143.17, a comment was received indicating that only the curriculum relevant to radiography should be considered when adjusting the number of hours of training for RNs and PAs. RESPONSE: The comment would be best addressed through future rule-making. The department plans to consider the specific training for RNs and PAs and make a recommendation to the board by September 1, 1996. COMMENT: Under sec.143.17, several comments pertained to the performance of basic radiographic procedures in RHCs by non-certified persons. Some of the procedures performed were identified as dangerous procedures and no training was included for these procedures in sec.143.17. The commenters were asking for special consideration for RHCs. RESPONSE: No changes were made as a result of the comments. The department considered the hardships for RHCs when describing the list of dangerous or hazardous procedures and when setting up the mandatory training requirements. The department believes that rural Texans deserve to have appropriately trained persons performing radiologic procedures. If a hardship exists, RHCs are encouraged to take advantage of the opportunity to apply for a hardship exemption for a practitioner, as set out in sec.143.19. COMMENT: Many comments were received indicating that the training required in sec.143.17 would place a hardship and an "undue burden on private physician offices." RESPONSE: No change was made as the result of the comments. The department shares the concerns of the commenters regarding the costs of training, the costs of time spent away from the office to complete the training, and turnover of personnel. The department regrets that funding for the training programs was not included in the legislation. However, opportunities should be explored for training and for employing already trained persons which are not cost prohibitive. The department urges the medical community to collaborate on providing this training in the most cost effective manner using teleconference networks with medical schools and weekend seminars. COMMENT: Concerning 143.17(c), a commenter asked why his "tech" must learn all the other views if the "tech" only performs AP and lateral chests. The commenter stated that the x-ray machine used had an "Autotech that figures out the proper exposure automatically by using a computer. The nurse needs only measure and position [the patient]. The exposure is perfect 99.9% of the time." RESPONSE: The "tech" performing only chest radiography would be required to only complete the 98-hour core course plus 15 hours for the chest component by January 1, 1998. The department cannot write a curriculum based on the individual differences of x-ray machines, as there are hundreds of different machines currently in use state wide. Furthermore, if an NCT were listed on the registry, it would not indicate that the training completed was for a specific x-ray machine. COMMENT: Several commenters suggested that the department offer a proficiency exam or testing mechanism in lieu of or in combination with the training requirements set out in sec.143.17. RESPONSE: No changes were made as a result of the comments. The department believes that no legal authority exists to adopt an administrative procedure for a proficiency examination. However, the department requested an attorney general opinion on the matter, and if the opinion issued is favorable to the exam scheme, the department would address the comments through future rule-making. COMMENT: Concerning sec.143.17, many comments were received requesting stronger training standards. Several comments were received "against HB 1200" because the training requirements were insufficient. Several commenters noted that pipe fitters' and hair dressers' training programs exceeded that required for NCTs. The commenters asked about the wisdom of the difference when radiology concerned the health of family members and cherished friends. Many commented that the hours required could not possibly cover patient care and gave specific examples. RESPONSE: No changes were made as a result of the comments. The department appreciates the concerns of the commenters and acknowledges the irony. The department also notes that no license or certificate will be issued to the NCTs. NCTs will be placed on the department's registry. NCTs currently performing radiologic procedures may or may not have had the training. The Texas legislature mandated incremental improvements rather than a radical change, such as requiring all persons performing radiologic procedures to become LMRTs or MRTs. COMMENT: A commenter asked that the rules be expanded so that students who are in the second year of a two year education program in radiologic technology would be deemed to meet the NCT training requirements in sec.143.17. Another commenter asked that persons who have completed an LMRT education program also be deemed to meet the training requirements in sec.143.17. The commenters cited the number of hours of training each of these groups have completed and stated the common goal should be patient safety. RESPONSE: No changes were made as a result of the comments. The comments would be best addressed through future rule-making. The department agrees with the basic premise that students in the traditional and LMRT education programs should be recognized for the training they have already completed. It is an important issue and the department needs more time to look into the implications and the benefits of adopting rules which would provide linkages between the NCT training, LMRT education, and MRT education. The department referred the issues to the MRTAC for its recommendations by September 1, 1996. COMMENT: A commenter asked that the Board of Health establish rules for RNs, PAs and podiatric procedures. RESPONSE: The department agrees and the Board of Health will take up this issue later in the year. COMMENT: Two commenters asked that NCTs with at least three years of active practice be allowed to take a proficiency examination in order to be listed on the department's registry described in sec.143.18. RESPONSE: The department would need to propose new rules for this purpose if the legal authority exists for such an examination. The department is awaiting the issuance of an Attorney General Opinion on the matter before considering future rule-making. COMMENT: Several commenters were against the rules in sec.143.19 allowing hardship exemptions because there are certified technologists in abundant supply and there was no need to grant an exemption. RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. COMMENT: A commenter stated that the rules attempted to deal with isolated areas that needed hardship exemptions and that the application procedures were not an unreasonable way of dealing with this on a case by case basis. RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. COMMENT: A comment was received indicating that the department had set up extensive requirements for applying for a hardship exemption under sec.143.19. The comments indicated that the department should consider extenuating circumstances in granting hardships. The commenter asked that the department consider additional criteria for granting a hardship. RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: A commenter stated that the hardship exemptions in sec.143.19 did not provide for meaningful relief to small solo or small group medical practices. RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. COMMENT: A comment was received indicating that the intent of the hardship exemption was to provide for an "automatic" exemption from the training standards. The commenter stated that the rules add application requirements not found in HB 1200 and that the rules exceed the statutory authority. The commenter stated that "Section 2.05(I) . . . directs the department that any one of the following shall be deemed to be a hardship. RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: Concerning sec.143.19, a comment was received indicating that the language in HB 1200 clearly limited the discretion of the department in the granting or denial of an exemption. The commenter stated further that the rules would "unfairly restrict rights of hospitals, federally qualified health care centers (FQHCs) and practitioners . . . by adding application requirements which are not found in the statutes and which exceed the department's statutory authority." RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: A commenter stated that even if a hardship under the rules in sec.143.19 was granted, the applicant must submit information to the BRC regarding the minimum training, education, and experience qualifications of the handlers of the radioactive materials. RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: A commenter stated that great care needed to be exercised in granting exemptions established in sec.143.19, otherwise it would render as meaningless the training requirements in sec.143.17. RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. COMMENT: A commenter stated that RHCs should be allowed to apply for an exemption under sec.143.19. RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. An RHC is not one of the entities allowed to apply for a hardship exemption according to the statutory language. A practitioner who is the medical director of the RHC may apply. COMMENT: A commenter was concerned that the proposed rules in sec.143.19 permit only rural applicants to apply for a hardship exemption, and that was not supported in the law. RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. COMMENT: A commenter asked that the definition of "rural" be deleted from the rules at sec.143.2 and that the term rural be deleted from sec.143.19. RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. COMMENT: Three commenters stated that the criteria to qualify for an exemption in sec.143.19(c)(4)(A) should be limited to a sworn statement from the applicant describing the applicant's attempts to attract and retain an MRT. The commenter stated that the "extensive wage survey data" was onerous and excessive. RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: A commenter remarked that HB 1200 stated "a great distance" and the commenter disagreed with the 100-mile distance stated in sec.143.19(c)(4)(B). The commenter felt that a 10-mile distance would be appropriate in some cases. RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: A commenter asked that the 100-mile distance in sec.143.19(c)(4)(B) be reduced to 30 miles, and that language be added to cover situations where the applicant hospital and the school of radiologic technology were less that 30 miles apart " . . . but the hospital and school are separated by urban density or suburban sprawl that make the travel between the two a hardship." RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: A comment was received indicating that in sec.143.19(c)(4)(B), "50 miles would appear to be more workable." RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: Two commenters stated that the 100-mile distance in sec.143.19(c)(4)(C) was arbitrary and the 100-mile distance would be a hardship in itself. RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: A commenter asked that the 100-mile distance in sec.143.19(c)(4)(B) be reduced to 50 miles in order to qualify for a hardship exemption. RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: Two commenters stated that the proposed language in the "waiting list" exemption in sec.143.19(c)(4)(C) was " . . . excessive and not supported by law because it placed a duty on the applicant to provide information within a time certain when the applicant has no control over the time period in which a program director [of a school of radiologic technology] will choose to respond to an applicant's request for a letter." The commenter asked that the wording be changed to only require " . . . a sworn affidavit from the applicant stating that admissions to the school were pending due to a lack of faculty or space." RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: A commenter stated the requirement of the letter from the program director during the 90 days preceding application for a hardship exemption under sec.143.19(c)(4)(C) was "unfair, excessive and not supported by law." RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: Several comments were received regarding the "demand for graduates" exemption in sec.143.19(c)(4)(D), stating that the criteria were excessive and not supported by law. The commenters stated that requiring a letter from the program director of a school of radiologic technology indicating that the number of graduates did not meet the demands of the applicants was inappropriate. One commenter stated that the applicant was in the sole position of to determine what its needs were. RESPONSE: Proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. The comment would be best addressed through future rule-making. COMMENT: One commenter stated that the objective criteria in sec.143.19(c)(4) protected applicants from arbitrary and capricious disapproval by the department. The commenter further stated that having broadly written requirements rather than specific requirements would require the department to exercise discretion in granting or denying a hardship exemption. RESPONSE: The department acknowledges the support of the proposed rules. However, proposed new sec.143.19 has been withdrawn from consideration for permanent adoption to allow more time for input. COMMENT: A commenter asked that the department not limit the hardship exemptions to those included in HB 1200. RESPONSE: The commenter is urged to submit specific suggestions as to additional hardships allowed by the statutory language. The suggestions would likely require additional rules which would be best addressed through future rule- making. COMMENT: A commenter stated that it was hoped " ... that HB 1200 would finally correct inadequacies of previous legislation ... Anyone wishing to dilute the requirements further are not interested in quality health care. People living in rural Texas should not be automatically exposed to a lower standard of health care," RESPONSE: The department agrees and no changes were made to the rules as a result of the comments. COMMENT: A commenter stated that more improvement could only be accomplished by increasing the number of hours and carefully examining those procedures listed under dangerous or hazardous to include even more radiologic procedures. Protection from ionizing radiation during medical procedures cannot be improved if the rules are amended to contain less requirements. RESPONSE: The department disagrees and no changes were made to the rules as a result of the comments. The department has determined that the dangerous or hazardous procedures identified in sec.143.16 are appropriate and that the training identified in sec.143.17 is adequate. COMMENT: A commenter stated that the new rules appeared to be a money-making scheme for anyone wanting to open a school or who may employ NCTs. The commenter opined that the proposed rules would endanger more lives. RESPONSE: The department disagrees and no changes were made to the rules as a result of the comments. COMMENT: A commenter stated that " ... the department's method of indicating language to be deleted was very confusing. The use of a beginning bracket ( [ ) at the start of a paragraph within a section to be deleted, but than (sic) not using an ending bracket ( ] ) until the very end of a section made it difficult to determine exactly what was to be deleted." The commenter gave as an example Section 143.8. Examinations. , paragraph 5, where a beginning deletion bracket appeared, but no ending bracket appeared until the end of the newly numbered paragraph 5, where proposed amendments appeared. RESPONSE: No changes were made to the rules as a result of the comments. The department believes the specific citation was a typographical error where the ending bracket was missing. All other pairs of brackets indicating deletion were checked by two groups within the department. We were also advised as to the correct form and style by staff of the Texas Register Division (TRD) of the Office of the Secretary of State. The commenter is encouraged to consult with the TRD staff, or refer to the TRD Form and Style Manual. COMMENT: A commenter took exception with the fiscal note included in the proposed preamble, stating that the current cost of continuing education of $6.25 per hour would be an appropriate figure to use in determining the approximate cost of training an NCT. The commenter speculated the cost was closer to $925 per person, rather than the $0 to $1000 stated in the preamble. The commenter further speculated that the total cost of training NCTs, if all NCTs completed all anatomical units, would approach $6.5 million, and that this would have a great deal more impact on health care than anticipated. RESPONSE: The department agrees with the comment regarding the preamble. No changes were made to the rules as a result of the comments. COMMENT: A comment was received stating support for a specialty certification in nuclear medicine technology. RESPONSE: No changes were made to the rules as a result of the comment. The comment would be best addressed through future rule-making. COMMENT: Several commenters stated they were against the new rules in sec.sec.143.15-143.19 because their offices were already being checked periodically by the BRC. RESPONSE: No changes were made to the rules as a result of the comment. The BRC's focus was on the radiation producing machines, where these proposed rules relate to radiologic procedures and the credentials of the persons performing the procedures. COMMENT: Numerous comments were received in support of HB 1200 and the new rules in sec.sec.143.14-143.19. RESPONSE: The department agrees and no changes were made to the rules as a result of the comments. COMMENT: Several comments were received against HB 1200. Many asked that the bill not be passed. RESPONSE: No changes were made to the rules as a result of the comments. The department proposed the rules in response to HB 1200 which was passed by the 73rd Texas Legislature, Regular Session, 1995. COMMENT: Numerous comments were received that were not in favor of the training requirements and the new registry. The commenters had questions and concerns about the costs and benefits of the new rules. RESPONSE: The department does not agree or disagree with the comments. No changes were made to the rules as a result of the comments. COMMENT: Many comments were received from the podiatric community regarding the proposed rules relating to the training requirements for NCTs who performed only podiatric radiography. Some of the commenters asked the department to delegate the determination of the training for podiatric assistants to the Texas State Board of Podiatric Examiners (BPE), and adopt a new section of the rules for this purpose. RESPONSE: The department has not received an official proposal or other indication from the BPE regarding its scheme for approving training programs in podiatric radiography. The department would consider delegating or deferring the decision to another state agency provided objective criteria were included in order to protect the public from the hazards of excessive radiation. The department clearly understands that some podiatric x-ray equipment poses minimum threat of radiation over-exposure; however, not all podiatrists utilize this type of equipment. The concerns and comments would be best addressed through future rule-making. The department encourages commenters and the podiatric community to submit a proposal before June 1, 1996. Minor editorial changes were made for clarification purposes and to improve grammar and style. The following provided comments on the proposed rules: American Society of Cardiovascular Professionals/Society for Cardiovascular Management; Texas Academy of Family Physicians; Texas Academy of Physician Assistants; Texas Chiropractic Association; Texas Employment Commission; Texas Hospital Association; Texas Medical Association; Texas Nurses Association; Texas Organization of Rural & Community Hospitals; Texas Osteopathic Medical Association; Texas Podiatric Medical Association; Texas Society of Radiologic Technologists; Texas State Board of Nurse Examiners; Texas State Board of Podiatric Medical Examiners; Senator Michael Galloway; El Centro College, Health and Legal Studies Division, Dallas County Community College District; County Day Clinic, Fort Worth; Texas Oncology School of Radiation Therapy, Sammons Cancer Center, Baylor University Medical Center, Dallas; Anderson Cancer Center, Houston; Houston; Richmond Imaging Associates, Houston; Frio Hospital; Durrett Chiropractic & Natural Health Care Clinic, Spring; Hendrick Medical Center, Abilene; Citizens Medical Center, Victoria; Department of Radiologic Oncology, Sammons Cancer Center, Texas Cancer Center, Arlington; Tyler Junior College; Metropolitan Hospital, San Antonio; Northeast Methodist Hospital, San Antonio; San Antonio Regional Hospital; Allison Cancer Center, Texas Oncology, P.A., Midland; McCamey Hospital; Mother Frances Hospital, Tyler; R. E. Thomason Hospital, El Paso; MASI Healthcare Services, Fort Worth; Shackelford County Hospital District, Albany; Methodist Medical Center, Dallas; Southern Bone & Joint Center Associates, McAllen; Family Wellness Center, Marble Falls; Family Practice Center, McAllen; Rio Grande Orthopaedic Institute; Family Physicians Clinic, McAllen; St. Paul Medical Center Cancer Center, Dallas; Health Education and X-ray Institute (HEXI), Houston; Medical Clinic of Houston; McGregor Medical Center, Houston; Houston Community College; Reagan Memorial Hospital, Big Lake; Anson General Hospital; Odessa College, Stonewall Hospital; Medical Arts Hospital, Lamesa; Advanced Healthcare Education Center (AHEC); Cuero Community Hospital; Austin Community College; M.D.Anderson Moncrief Cancer Center; Davenport X-ray Company, Dallas; Arlington Cancer Center; Texas Children's Hospital, Houston; Baylor College of Medicine, Houston; St. Luke's Episcopal Hospital, Houston; Ben Taub Hospital, Houston; Blinn College, Brenham; Harris County Health Department; Bay Area Medical Imaging Society; Houston Area Radiologic Technologist Society; and department staff. While none of the commenters were against the rules in their entirety, they expressed concerns, questions and made recommendations. The amendments are adopted under the Medical Radiologic Technologist Certification Act, Texas Civil Statutes, Article 4512m, sec.2.05(e), which provide the Texas Board of Health (board) with the authority to adopt rules necessary to implement the Act; sec.2.05(a), concerning rules on certificates, education programs, instructors, and the registry; sec.2.07(f), concerning minimum standards for mandatory training; sec.2.09, concerning rules on applications for certificates and approval of curricula, training programs, and instructors; sec.2.11(c)(5), concerning standards of practice of radiologic technology, and the Texas Health and Safety Code, sec.12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.143.2.Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Administrator-The department employee designated as the administrator of regulatory activities authorized by the Act. AP-Anterior/posterior. Committee-The Medical Radiologic Technologist Advisory Committee. Federally qualified health center (FQHC)-A health center as defined by 42 United States Code, sec.1396d(2)(B). Fluoroscopy-The practice of examining tissues using a fluorescent screen, including digital and conventional methods. Fluorography-Hard copy of a fluoroscopic image; also known as spot films. Instructor-An individual approved by the department to provide instruction and training in the discipline of medical radiologic technology in an educational setting. Limited Medical Radiologic Technologist (LMRT)-A person who holds a limited certificate issued under the Act, and who under the direction of a practitioner, intentionally administers radiation to specific parts of the bodies of other persons for medical reasons. The limited categories are the skull, chest, spine, extremities, podiatric and chiropractic. Non-Certified Technician (NCT)-A person who has completed a training program and who is listed on the registry. An NCT may not perform a radiologic procedure which has been identified as dangerous or hazardous. PA-Posterior/anterior. Registry-A list of names and other identifying information of non-certified technicians. TRCR-Texas Regulations for the Control of Radiation, 25 Texas Administrative Code, Chapter 289 of this title (relating to Texas Regulations for the Control of Radiation). The regulations are available from the Standards Branch, Bureau of Radiation Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3189, (phone 1-512-834-6688). sec.143.5.Applicability. (a) (No change.) (b) Except as specifically exempted by subsections (c) and (d) of this section, the provisions of the Act and this chapter apply to any person representing that he or she performs radiologic procedures. (c) This chapter does not prohibit the performance of a radiologic procedure by the following: (1) A person who is a practitioner and performs the procedure in the course and scope of the profession for which that person holds the license; or (2) a person who performs a radiologic procedure involving a dental x-ray machine, including panarex or other equipment designed and manufactured only for use in dental radiography and under the instruction or direction of a dentist, if the person and the dentist are in compliance with rules adopted under the Act, sec.2.08 by the Texas State Board of Dental Examiners (BDE). (d) This chapter does not prohibit the performance of a radiologic procedure which has not been identified as dangerous or hazardous under sec.143.16 of this title (relating to Dangerous or Hazardous Procedures) by the following: (1) a person who has successfully completed a training program for non-certified technicians, in accordance with sec.143.17 of this title (relating to Mandatory Training Programs for Non-Certified Technicians) and who performs the procedure under the instruction or direction of a practitioner if the person and the practitioner are in compliance with rules adopted under the Act, sec.2.08, by the Texas State Board of Chiropractic Examiners (BCE), Texas State Board of Medical Examiners (BME), Texas State Board of Nurse Examiners (BNE), or Texas State Board of Podiatry Examiners (BPE); (2) a person who has successfully completed a training program for non-certified technicians, in accordance with sec.143.17 of this title and who performs the procedure in a hospital that participates in the federal Medicare program or is accredited by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO); (3) students of medicine, osteopathic medicine, podiatry or chiropractic when under instruction or direction of a practitioner and if the student and the practitioner are in compliance with paragraph (1) of this subsection; (4) a person who performs only in-vitro clinical or laboratory testing procedures as described in the Texas Regulations for the Control of Radiation (TRCR); (5) a student enrolled in a radiologic technology program which meets the requirements of sec.143.9 of this title (relating to Standards for the Approval of Curricula and Instructors) or sec.143.17 of this title who is performing radiologic procedures in an academic or clinical setting as part of the program; or (6) a person who performs radiologic procedures for a period of not more than ten days, while enrolled in and as a part of continuing education activities which meet the minimum standards set out in sec.143.11 of this title (relating to Continuing Education Requirements) and who is licensed or otherwise registered as a medical radiologic technologist in or by another state, District of Columbia, a territory of the United States, the American Registry of Radiologic Technologists (ARRT), the Nuclear Medicine Technology Certification Board (NMTCB), the Board of Registry of the American Society of Clinical Pathologists, the Canadian Association of Medical Radiologic Technologists, the British Society of Radiographers, the Australian Institute of Radiography, or the Society of Radiographers of South Africa; or (7) a person who performs the procedure in a hospital, federally qualified health center (FQHC), or for a practitioner, if a hardship exemption was granted to the hospital, FQHC or practitioner by the department during the previous 12- month period. sec.143.7.Types of Certificates and Applicant Eligibility. (a) General. The purpose of this section is to set out the types of certificates issued and the qualifications of applicants for certification as a medical radiologic technologist (MRT) or limited medical radiologic technologist (LMRT). (1)-(3) (No change.) (4) A person certified as an MRT or LMRT shall carry or display the original certificate or current identification card at the place of employment. Photocopies shall not be carried or displayed but may be kept in a file. (5) No one shall display, present, or carry a certificate or an identification card which has been altered, photocopied, or otherwise reproduced. (6) (No change.) (b) Special provisions for persons who were nationally certified on September 1, 1987. Upon payment of the application fee, submission of the application forms and approval by the department, the department shall issue a general certificate to a person who was registered by the American Registry of Radiologic Technologists (ARRT) or American Registry of Clinical Radiography Technologists (ARCRT) as a radiographer, was registered by the ARRT as a radiation therapy technologist, or was registered by the ARRT or certified by the Nuclear Medicine Technologist Certification Board (NMTCB) as a nuclear medicine technologist. (c) Special provisions for persons who have performed radiologic procedures during the five-year period, September 1, 1982, through August 31, 1987. Upon payment of the certification fee, submission of the application forms and approval by the department, the department shall issue: (1) a general certificate to a person who has performed radiologic procedures for not less than two years, as documented on form(s) prescribed by the department; or (2) a limited certificate to a person who has performed radiologic procedures for not less than one year, as documented on forms prescribed by the department. The category or categories of the limited certificate shall be based upon the type of documented radiologic procedures performed by the applicant. However, a limited certificate in the chiropractic or podiatric categories may be issued provided the applicant submits written evidence satisfactory to the department of at least one of the following items: (A) for the chiropractic limited certificate, that the applicant was certified by the American Chiropractic Registry of Radiologic Technologists (ACRRT) on September 1, 1987; and (B) for the podiatry limited certificate, that the applicant was certified by the American Society of Podiatry Assistants (ASPA) on September 1, 1987. (d) Minimum eligibility requirements for certification. The following requirements apply to all individuals applying for certification who do not meet the requirements of subsections (b) or (c) of this section: (1) graduation from high school or its equivalent as determined by the Texas Education Agency; (2) attainment of 18 years of age; (3) freedom from physical or mental impairment which interferes with the performance of duties or otherwise constitutes a hazard to the health or safety of patients; (4) submission of a satisfactory completed application on a form supplied by the department; (5) payment of the appropriate fees; and (6) eligibility for the specific certificate requested as set out in subsection (e), (f), (g), (h), or (i) of this section. (e) Medical radiologic technologist. To qualify for a general certificate an applicant shall meet at least one of the following requirements in addition to those listed in subsection (d) of this section: (1) possess current national certification as a registered technologist by the ARRT; (2) have successfully completed the ARRT's examination in radiography, radiation therapy technology, or nuclear medicine technology; (3) possess current national certification as a certified nuclear medicine technologist by the NMTCB; (4) have successfully completed the NMTCB's examination in nuclear medicine technology; or (5) be currently licensed or otherwise registered as a medical radiologic technologist by another state, District of Columbia, or territory of the United States whose requirements are more stringent than or are substantially equal to the requirements for Texas certification. (f) Limited medical radiologic technologist. To qualify for a limited certificate, an applicant shall meet the requirements in paragraph (4) of this subsection and subsection (d) of this section. (1) The limited categories shall be as follows: skull; chest; spine; extremities; chiropractic; and podiatry. (2) Holding a limited certificate in all categories shall not be construed to mean that the holder of the limited certificate has the rights, duties, and privileges of a general certificate holder. (3) Persons holding a limited certificate in one or more categories may not perform radiologic procedures involving the use of contrast media, utilization of fluoroscopic equipment, mammography, tomography, bedside radiography, and nuclear medicine or radiation therapy procedures. (4) To qualify for a certificate as an LMRT an applicant must provide documentary evidence satisfactory to the department of the following: (A) the successful completion of a limited course of study as set out in sec.143.9 of this title (relating to standards for the Approval of Curricula and Instructors) and the successful completion of the appropriate limited examination in accordance with sec.143.8 of this title (relating to Examinations); (B) current licensure or registration as a LMRT by another state, District of Columbia, or territory of the United States of America whose requirements are more stringent than or substantially equal to the requirements for the Texas limited certificate at the time of application to the department; or (C) current general certification as a MRT issued by the department. The MRT must surrender the general certificate and submit a written request for a limited certificate indicating the limited categories requested. The request shall be postmarked on or before the certificate expiration date and shall be accompanied by the general certificate and the certificate and/or identification card replacement fee. (g) Temporary medical radiologic technologist (general or limited). To qualify as a temporary medical radiologic technologist (general or limited), an applicant shall meet at least one of the following requirements. These are in addition to those listed in subsection (d) of this section. (1) For the general temporary certificate, an applicant must: (A) have successfully completed or be within 28 calendar days of successful completion of a course of study in radiography, radiation therapy technology, or nuclear medicine technology which is accredited by the Committee on Allied Health Education and Accreditation (CAHEA); (B) be approved by the ARRT as examination eligible; (C) be approved by the NMTCB as examination eligible; (D) be currently licensed or otherwise registered as a medical radiologic technologist by another state, District of Columbia, or territory of the United States whose requirements are not substantially equal to the Texas requirements for certification at the time of application to the department. (2) For the temporary limited certificate, the applicant must have successfully completed or be within 28 days of successful completion of a course of study in limited practice approved in accordance with sec.143.9 of this title (relating to Standards for the Approval of Curricula and Instructors) by the department; or be licensed or registered as a limited medical radiologic technologist by another state, District of Columbia, or territory of the United States whose requirements are not substantially equal to the Texas requirements for certification at the time of application to the department. (h) Special provisions for technologists on active military duty. An MRT or LMRT whose certificate has expired and was not renewed under sec.143.10(h) of this title (relating to Certificate Issuance, Renewals, and Late Renewals) may file a complete application for another certificate of the same type as that which expired. (1) The application shall be on official department forms and be filed with the application processing fee. (2) An applicant shall be entitled to a certificate of the same type as that which expired based upon the applicant's previously accepted qualifications and no further qualifications or examination shall be required except payment of the certification fee. (3) The application must include a copy of the official orders or other official military documentation showing that the holder was on active duty during any portion of the period for which the applicant was last certified. (4) An application is subject to disapproval in accordance with sec.143.6(e) of this title (relating to Application Requirements and Procedures). (5) An applicant for a different type of certificate than that which expired must meet the requirements of this chapter generally applicable to that type of certificate. (i) Alternate eligibility. An individual who does not qualify under subsections (a)-(h) of this section may qualify under sec.143.15 of this title (relating to Alternate Eligibility Requirements). sec.143.9.Standards for the Approval of Curricula and Instructors. (a) (No change.) (b) General certificate programs. All curricula and programs to train individuals to perform radiologic procedures must be accredited by the Joint Review Committee on Education in Nuclear Medicine Technology (JRCENMT) or the Joint Review Committee on Education in Radiologic Technology (JRCERT). (c) Limited certificate programs. All curricula and programs to train individuals to perform limited radiologic procedures must either: (1) be accredited by the JRCERT to offer a limited curriculum in radiologic technology; or (2) be approved by the department and be offered within the geographic limits of the State of Texas. Subsections (d) - (h) of this section apply only to department-approved programs. (d) Application procedures for limited certificate programs. An application shall be submitted to the department at least ten weeks prior to the starting date of the program to be offered by a sponsoring institution. Official application forms are available from the department and must be completed and signed by the program director of the sponsoring institution's program. Program directors shall be responsible for the curriculum, the organization of classes, the maintenance and availability of facilities and records, and all other policies and procedures related to the program or course of study. (1)-(3) (No change.) (4) Notices will be mailed to applicants informing the applicant of the completeness or within 60 days of receipt of the application in the department. Applications which are received incomplete may cause postponement of the program starting date. The time of receipt of the last item necessary to complete the application to the date of issuance of written notice approving or denying the application is 120 days. In the event these time periods are exceeded, the applicant has the right to request reimbursement of fees, as set out in sec.143.6(f)(2) and (3) of this title (relating to Application Requirements and Procedures). (5) (No change.) (6) The application shall include: (A)-(B) No change.) (C) the location, mailing address, phone and facsimile numbers of the program; (D) a list of instructors approved by the department, in accordance with subsection (g) of this section, and any other persons responsible for the conduct of the program including management and administrative personnel. The list must indicate what courses each will teach or instruct or the area(s) of responsibility for the non-instructional staff; (E) a list of clinical facilities, letters of agreement from clinical facilities signed by the chief executive officer(s) of each facility, and clinical schedules, including the following items identified for each clinical site utilized. A clinical facility which is not listed on the application may not be utilized for a student's clinical practicum until the department has accepted the additional clinical facility. The items are: (i)-(ii) (No change.) (iii) the number and location(s) of examination rooms available; (iv) (No change.) (v) an acknowledgement that students may only perform radiologic procedures under supervision of a practitioner, a limited medical radiologic technologist (LMRT) employed at the clinical facility or medical radiologic technologist (MRT) employed at the clinical facility; (vi) copies of the current identification cards issued by the department to the LMRTs or MRTs who will supervise the students at all times while performing radiologic procedures; and (vii) an acknowledgement that the students shall not perform procedures utilizing contrast media, mammography, fluoroscopy, tomography, nuclear medicine studies, radiation therapy or other procedures beyond the scope of the limited curriculum; (F) clearly defined and written policies regarding admissions, costs, refunds, attendance, disciplinary actions, dismissals, re-entrance, and graduation which are provided to all prospective students prior to registration. The admission requirements shall include the minimum eligibility requirements for certification in accordance with sec.143.7(c)(1)-(2) of this title (relating to Types of Certificates and Applicant Eligibility); (G) the name of the program director who is an approved instructor in accordance with subsection (g) of this section, and who has not less than three years of education or teaching experience in the appropriate field or practice; (H) a letter of acknowledgement and a photocopy of the current Texas license from a practitioner in the appropriate field of practice who is knowledgeable in radiation safety and protection and who shall be known as the designated medical director. The practitioner shall work in consultation with the program director in developing goals and objectives and in implementing and assuring the quality of the program; (I) a letter or other documentation from the Texas Workforce Commission, Proprietary Schools Section indicating that the proposed training program has complied with or has been granted exempt status under the Texas Proprietary School Act, Texas Education Code, Chapter 32 and 19 Texas Administrative Code, Chapter 175; and (J) the correct number of students to be enrolled in each cycle of the program, and if more than one cycle will be conducted concurrently, the maximum number of students to be enrolled at any one time. (7) All applications must identify the type of curriculum according to the limited categories in accordance with sec.143.7(f) of this title. Each application must be accompanied by an outline of the curriculum and course content which clearly indicates that students must complete a structured curriculum in proper sequence according to subsection (e) of this section. If the curriculum differs from that set out in subsection (e) of this section, a typed comparison in table format clearly indicating how the curriculum differs from the required curriculum, including the number of hours for each topic or unit of instruction, shall be included. (8) In making application to the department, the program director shall agree in writing to: (A) provide a ratio of not more than three students to one full-time certified medical radiologic technologist engaged in the supervision of the students in the clinical environment; (B)-(G) (No change.) (H) permit site inspections by departmental representatives to determine compliance and conformance with the provision of this section. In lieu of a site inspection, the department may accept the most recent site visit report from a recognized accrediting body set out in subsection (c)(1) of this section; (I) understand and recognize that the graduates' success rateon the prescribed examination will be monitored by the department and utilized as a criteria for rescinding approval. In addition to this criteria, the department may rescind approval in accordance with sec.143.14 of this title (relating to Violations and Subsequent Actions); and (J) comply with the Texas Regulations for the Control of Radiation (TRCR), including but not limited to, personnel monitoring devices for each student upon the commencement of the clinical instruction and clinical experience. (9) A site visit may be necessary to grant approval of the program. If a site visit is required, a site visit fee must be paid in accordance with sec.143.4 of this title. (e) Curricula requirements. Each student must complete a curriculum which meets or exceeds the following requirements: (1) at least 132 clock hours of basic theory or classroom instruction in the categories of skull, chest, extremities, spine, and chiropractic, and not less than 66 clock hours of basic theory instruction for podiatric is required. The required clock hours of basic theory/classroom instruction need not be repeated if two or more categories of curriculum are completed simultaneously or to add a category to a temporary limited or limited certificate. The following subject areas and minimum number of hours (in parentheses) must be included in all programs and must be instructor directed. The recommended clock hours for each shall be: (A)-(C) (No change.) (D) applied human anatomy and radiologic procedures-(20); (E) patient care and management essential to radiologic procedures and recognition of emergency patient conditions and initiation of first aid-(10); (F) medical terminology-(6); and (G) medical ethics and law-(6); and (2) a clinical practicum for each category of limited curriculum is required. The practicum must include clinical instruction and clinical experience under the instruction or direction of a practitioner and an MRT or LMRT in accordance with the following chart. Figure 1, 25 TAC, sec.143.9 (e)(2) (A) (No change.) (B) The clinical experience must commence immediately following the clinical instruction and be completed within 180 days of the starting date of the clinical experience. Variances from this must be approved in advance by the department and must demonstrate good cause. A request for a variance must be submitted in writing to the administrator. For the purposes of this section, a normal pregnancy or medical disability shall be good cause. (C) (No change.) (D) The program director shall be responsible for supervising and directing the evaluation of the students' clinical experience and shall certify in writing that the student has or has not successfully completed the required clinical instruction and clinical experience. Such written documentation must be provided to each student within 14 days of completion of the clinical experience. Students who successfully complete the required clinical experience may be required to submit such documentation to the department if applying for a temporary limited certificate with an expected graduation statement, as set out in sec.143.6(c)(2)(B)(iii) of this title. Persons who participate in the evaluation of students' clinical experience must be an MRT or LMRT and have a minimum of two years of practical work experience performing radiologic procedures. (f) Limited certificate educational program approval. (1) Provided the requirements are met, the sponsoring institution shall receive a letter from the department indicating approval of the educational program in accordance with sec.113.1 of this title (relating to Processing Permits for Special Health Services Professionals). (2) A program shall be denied approval if the application is incomplete or not submitted as set out in this section. The applicant shall be notified in accordance with sec.113.1 of this title. (3) (No change.) (g) Instructor approval for limited certificate programs. (1) All persons who plan to or who provide instruction and training in the limited certificate courses of study or programs shall: (A) (No change.) (B) submit the prescribed application fee in accordance with sec.143.4 of this title; (C) (No change.) (2) (No change.) (3) Within 21 days of receipt of the application in the department, a notice will be mailed informing the applicant of the completeness or deficiency of the application. The time of receipt of the last item necessary to complete the application to the date of issuance of a written notice approving or denying the application is 42 days. In the event these time periods are exceeded, the applicant has the right to request reimbursement of fees paid as set out in sec.143.6(f)(2) and (3) of this title. (4) An applicant who is not approved by the department shall be given an opportunity to request a formal hearing within ten days of the applicant's receipt of the written notice from the department. The formal hearing shall be conducted according to the department's formal hearing procedures in Chapter 1 of this title. If no hearing is requested, the right to a hearing is waived and the proposal action shall be taken. (h) Instructor qualifications for limited certificate programs. (1) An instructor(s) shall have education and experience in teaching the subjects assigned, shall meet the standards required by a sponsoring institution, if any, and shall meet at least one or more of the following qualifications: (A)-(B) (No change.) (C) be a practitioner who is in good standing with all appropriate regulatory agencies including, but not limited to, the department, the Texas State Board of Chiropractic Examiners (BCE), Texas State Board of Medical Examiners (BME), or Texas State Board of Podiatry Examiners (BPE), the Texas Department of Human Services, the United States Department of Health and Human Services. (2) (No change.) (i) Transition. The currently approved programs shall have one year from the date of adoption of this amended section to comply with the new requirements. sec.143.11.Continuing Education Requirements. (a) (No change.) (b) General. Continuing education requirements for recertification shall be fulfilled during each biennial renewal period beginning on the first day of the month following each MRT's or LMRT's birth month and ending on the last day of each MRT's or LMRT's birth month two years hence. (1)-(7) (No change.) (8) An MRT or LMRT who holds a current and active annual registration or credential card issued by the American Registry of Radiologic Technologists (ARRT), or Nuclear Medicine Technology Certification Board (NMTCB)indicating that the MRT is in good standing and not on probation satisfies the continuing education requirement for renewal of the general or limited provided the hours accepted by the agency or organization which issued the card meet or exceed the requirements set out in subsection (c) of this section. The department shall be able to verify the status of the card presented by the MRT or LMRT electronically or by other means acceptable to the department. The department may review documentation of the continuing education activities in accordance with subsection (f)(1) of this section. This procedure shall be effective for renewals beginning in 1997. (9)-(10) (No change.) (c) (No change.) (d) Types of acceptable continuing education. Continuing education shall be acceptable if the experience or activity is at least 30 consecutive minutes in length and: (1) (No change.) (2) is offered for continuing education credit by an institution accredited by the Joint Review Committee on Education in Radiologic Technology (JRCERT), Joint Review Committee on Education in Nuclear Medicine Technology (JRCENMT), or the Council on Chiropractic Education (CCE) and is directly or indirectly related to the disciplines of radiologic technology; or (3) (No change.) (e)-(j) (No change.) (k) Partial exemption. The department may consider granting an exemption for one-half of the continuing education requirement if the technologist submits proof of successful completion during the renewal period of an examination accepted by the department in a topic dealing with non-ionizing radiation. The balance of the hours must be directly related to the performance of a radiologic procedure utilizing ionizing radiation in accordance with subsection (c)(1) of this section. The following are examinations accepted by the department: (1) the registry examination offered by the American Registry of Diagnostic Medical Sonographers; and (2) the advanced-level examination in magnetic resonance imaging offered by the ARRT. (l) Denial of request for exemption. A technologist whose request for exemption is denied by the department may be granted a 120-day extension to complete the continuing education requirements and may request a hearing on the denial within 30 days after the date the department notified the technologist of the denied exemption. If no hearing is requested in writing within 30 days, the opportunity for hearing shall be waived. (m) Record keeping. An MRT or LMRT shall be responsible for keeping, for a period of not less than two years, accurate and complete documentation or other records of continuing education reported to the department. An MRT or LMRT shall submit documentation of attendance and participation in continuing education activities upon written request by the department. sec.143.13.Certifying Persons with Criminal Backgrounds to be Medical Radiologic Technologists. (a) (No change.) (b) Pleadings of nolo contendere or criminal convictions which directly relate to the profession of radiology. (1) The department may suspend or revoke any existing certificate, disqualify a person from receiving any certificate, or deny to a person the opportunity to be examined for a certificate because of a person pleading nolo contendere to or being convicted of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a medical radiologic technologist (MRT) or limited medical radiologic technologist (LMRT). (2) In considering whether a pleading of nolo contendere or a criminal conviction directly relates to the occupation of an MRT or LMRT, the department shall consider: (A)-(D) (No change.) (3) (No change.) (c) Procedures for revoking, suspending, or denying a certificate or temporary certificate to persons with criminal backgrounds. (1) The administrator shall give written notice to the person that the department intends to deny, suspend, or revoke the certificate or temporary certificate after hearing in accordance with the provisions of the Administrative Procedure Act, the Government Code, Chapter 2001, and the formal hearing procedures in sec.sec.1.21-1.34 of this title (relating to Formal Hearing Procedures). (2) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 7, 1996 TRD-9608088 Susan K. Steeg General Counsel Texas Department of Health Effective date: July 8, 1996 Proposal publication date: December 22, 1995 For further information, please call: (512) 458-7236 25 TAC 143.14 The repeal is adopted under the Medical Radiologic Technologist Certification Act, Texas Civil Statutes, Article 4512m, sec.2.05(e), which provide the Texas Board of Health (board) with the authority to adopt rules necessary to implement the Act; sec.2.05(a), concerning rules on certificates, education programs, instructors, and the registry; sec.2.07(f), concerning minimum standards for mandatory training; sec.2.09, concerning rules on applications for certificates and approval of curricula, training programs, and instructors; sec.2.11(c)(5), concerning standards of practice of radiologic technology, and the Texas Health and Safety Code, sec.12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.143.14.Violations and Subsequent Actions. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 7, 1996 TRD-9608087 Susan K. Steeg General Counsel Texas Department of Health Effective date: July 8, 1996 Proposal publication date: December 22, 1996 For further information, please call: (512) 458-7236 25 TAC sec.sec.143.14, 143.17, 143.18 The new sections are adopted under the Medical Radiologic Technologist Certification Act, Texas Civil Statutes, Article 4512m, sec.2.05(e), which provide the Texas Board of Health (board)with the authority to adopt rules necessary to implement the Act; sec.2.05(a), concerning rules on certificates, education programs, instructors, and the registry; sec.2.07(f), concerning minimum standards for mandatory training; sec.2.09, concerning rules on applications for certificates and approval of curricula, training programs, and instructors; sec.2.11(c)(5), concerning standards of practice of radiologic technology, and the Texas Health and Safety Code, sec.12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.143.14Disciplinary Actions. (a) The Texas Department of Health (department) is authorized to take the following disciplinary actions for the violation of any provisions of the Medical Radiologic Technologist Certification Act (Act) or this chapter: (1) suspension, revocation, or nonrenewal of a certificate; (2) rescission of curriculum, training program, or instructor approval; (3) denial of an application for certification or approval; (4) assessment of a civil penalty in an amount not to exceed $1,000 for each separate violation of the Act; (5) issuance of a reprimand; or (6) placement of the offender's certificate on probation and requiring compliance with a requirement of the department, including submitting to medical or psychological treatment, meeting additional education requirements, passing an examination, or working under the supervision of a medical radiologic technologist (MRT) or other practitioner. (b) The department may take disciplinary action against a person subject to the Act for: (1) obtaining or attempting to obtain a certificate issued under the Act by bribery or fraud; (2) making or filing a false report or record made in the person's capacity as an MRT; (3) intentionally or negligently failing to file a report or record required by law; (4) intentionally obstructing or inducing another to intentionally obstruct the filing of a report or record required by law; (5) engaging in unprofessional conduct, including the violation of the standards of practice of radiologic technology established by the department; (6) developing an incapacity that prevents the practice of radiologic technology with reasonable skill, competence, and safety to the public as the result of: (A) an illness; (B) drug or alcohol dependency; or (C) another physical or mental condition or illness; (7) failing to report to the department the violation of the Act by another person; (8) employing, for the purpose of applying ionizing radiation to a person, a person who is not certified under or in compliance with the Act; (9) violating a provision of the Act or this chapter, an order of the department previously entered in a disciplinary proceeding, or an order to comply with a subpoena issued by the department; (10) having a certificate revoked, suspended, or otherwise subjected to adverse action or being denied a certificate by another certification authority in another state, territory, or country; or (11) being convicted of or pleading nolo contendere to a crime directly related to the practice of radiologic technology. (c) Engaging in unprofessional conduct means the following: (1) making any misleading, deceptive, or false representations in connection with service rendered; (2) engaging in conduct that is prohibited by state, federal, or local law, including those laws prohibiting the use, possession, or distribution of drugs or alcohol; (3) performing a radiologic procedure on a patient or client which has not been authorized by a practitioner; (4) aiding or abetting a person in violating the Act or rules adopted under the Act; (5) any practice or omission that fails to conform to accepted principles and standards of the medical radiologic technology profession; (6) performing a radiologic procedure which results in mental or physical injury to a patient or which creates an unreasonable risk that the patient may be mentally or physically harmed; (7) misappropriating medications, supplies, equipment, or personal items of the patient, client or employer; (8) performing or attempting to perform radiologic procedures in which the person is not trained by experience or education or in which the procedure is performed without appropriate supervision; (9) performing or attempting to perform any medical procedure which relates to or is necessary for the performance of a radiologic procedure and for which the person is not trained by experience or education or when the procedure is performed without appropriate supervision; (10) performing a radiologic procedure which is not within the scope of a limited medical radiologic technologist's (LMRT) certificate, as set out in sec.143.7(f) of this title (relating to Types of Certificates and Applicant Eligibility); (11) disclosing confidential information concerning a patient or client except where required or allowed by law; (12) failing to adequately supervise a person in the performance of radiologic procedures; (13) providing false or misleading information on an application for employment to perform radiologic procedures; (14) providing information which is false, misleading, or deceptive regarding the status of certification; registration with the American Registry of Radiologic Technologists (ARRT) or Nuclear Medicine Technology Certification Board (NMTCB); or licensure by another country, state, territory, or District of Columbia; (15) discriminating on the basis of race, creed, gender, sexual orientation, religion, national origin, age, physical handicaps or economic status in the performance of radiologic procedures; (16) impersonating or acting as a proxy for an examination candidate for any examination required for certification; (17) acting as a proxy for an MRT or LMRT at any continuing education required under sec.143.11 of this title (relating to Continuing Education Requirements); (18) obtaining, attempting to obtain, or assisting another to obtain certification or placement on the registry by bribery or fraud; (19) making abusive, harassing or seductive remarks to a patient, client or co- worker in the workplace or engaging in sexual contact with a patient or client in the workplace; (20) misleadingly, deceptively or falsely offering to provide education or training relating to radiologic technology; (21) failing to complete the continuing education requirements for renewal as set out in sec.143.11 of this title; (22) failing to document the continuing education requirements for renewal as required by the department; (23) failing to cooperate with the department by not furnishing required documents or responding to a request for information or a subpoena issued by the department or the department's authorized representative; (24) interfering with an investigation or disciplinary proceeding by willful misrepresentation of facts to the department or its authorized representative or by use of threats or harassment against any person; (25) failing to follow appropriate safety standards or the Texas Regulations for the Control of Radiation (TRCR) in the operation of diagnostic or therapeutic radiologic equipment or the use of radioactive materials; (26) failing to adhere to universal precautions or infection control standards as required by the Health and Safety Code, Chapter 85, Subchapter I; (27) defaulting on a guaranteed student loan, as provided in the Education Code, sec.57.491; (28) assaulting any person in connection with the practice of radiologic technology or in the workplace; (29) intentionally or knowingly offering to pay or agreeing to accept any remuneration directly or indirectly, overtly or covertly, in cash or in kind, to or from any person, firm, association of persons, partnership, or corporation for securing or soliciting patients or patronage to or from a person licensed, certified or registered by a state health care regulatory agency. The provisions of the Health and Safety Code, sec.161.091, relating to the prohibition of illegal remuneration apply to MRTs and LMRTs; (30) using or permitting or allowing the use of the person's name, certificate, or professional credentials in a way that the person knows, or with the exercise of reasonable diligence should know: (A) violates the Act, this chapter or department rule relating to the performance of radiologic procedures; or (B) is fraudulent, deceitful or misleading; (31) knowingly allowing a student enrolled in an education program to perform a radiologic procedure without direct supervision; or (32) knowingly concealing information relating to enforcement of the Act or this chapter. (d) A person subject to disciplinary action under subsection (b)(6) of this section shall, at reasonable intervals, be afforded an opportunity to demonstrate that the person is able to resume the practice of radiologic technology. (e) An instructor engages in unprofessional conduct if the instructor violates any of the provisions of subsections (b) or (c) of this section or if the instructor: (1) is an MRT or LMRT who fails to renew the certificate; (2) is a practitioner who fails to renew his or her license or who has the license suspended, revoked, or otherwise restricted by the appropriate regulatory agency; (3) discriminates in decisions regarding student recruitment, selection of applicants, student training or instruction on the basis of race, creed, gender, religion, national origin, age, physical handicaps, sexual orientation, or economic status; (4) abandons an approved course of study or a training program with currently enrolled students; (5) knowingly provides false or misleading information on the application for instructor approval or on any student's application for certification; or (6) fails to provide instruction on universal precautions as required by the Health and Safety Code, sec.85.203. (f) An education program engages in unprofessional conduct if the program, including its employees or agents, violates any of the provisions of subsections (b) or (c) of this section or if the program: (1) makes any misleading, deceptive, or false representations in connection with offering or obtaining approval of an education program; (2) fails to follow appropriate safety standards or the TRCR in the operation of diagnostic or therapeutic radiologic equipment or the use of radioactive materials; (3) discriminates in decisions regarding student recruitment, selection of applicants, student training or instruction on the basis of race, creed, gender, sexual orientation, age, physical handicaps, economic status, religion or national origin; (4) aids or abets a person in violating the Act or rules adopted under the Act; (5) abandons an approved education program with currently enrolled students; or (6) fails to provide instruction on universal precautions as required by the Health and Safety Code, Section 85, Subchapter I. (g) The department may take disciplinary action against a student for intentionally practicing radiologic technology without direct supervision. (h) In determining the appropriate action to be imposed in each case, the department shall take into consideration the following factors: (1) the severity of the offense; (2) the danger to the public; (3) the number of repetitions of offenses; (4) the length of time since the date of the violation; (5) the number and type of previous disciplinary cases filed against the person or program; (6) the length of time the person has performed radiologic procedures; (7) the length of time the instructor or education program has been approved; (8) the actual damage, physical or otherwise, to the patient or student, if applicable; (9) the deterrent effect of the penalty imposed; (10) the effect of the penalty upon the livelihood of the person or program; (11) any efforts for rehabilitation; and (12) any other mitigating or aggravating circumstances. (i) Formal hearing requirements are as follows: (1) The administrator may only initiate or propose disciplinary action. Final action may be taken by the department only after the person has had an opportunity for a formal hearing to contest the proposed action. (2) The formal hearing shall be conducted in accordance with the department's formal hearing procedures in Chapter 1 of this title (relating to the Texas Board of Health). (3) Prior to institution of formal proceedings, the administrator shall give written notice to the person or program of the facts or conduct alleged to warrant disciplinary action and the person or program shall be given the opportunity, as described in the notice, to show compliance with all requirements of the Act and this chapter. (4) To initiate formal hearing procedures, the administrator shall give the person or program written notice of the opportunity for hearing. The notice shall state the basis for the proposed action. Within ten days after receipt of the notice, the person or program shall give written notice to the administrator that the hearing is requested. Receipt of the written notice is presumed to occur on the tenth day after the notice is sent to the last address known to the department unless another date is reflected on the return receipt. (A) If no request for a hearing is given within ten days after receipt of the notice, the person or program is deemed to have waived the hearing and be in agreement with the allegations and proposed action. If the hearing has been waived, the department shall recommend disciplinary action to the commissioner. (B) If the person or program requests a hearing within ten days after receiving the notice of opportunity for hearing, the department shall initiate the department's formal hearing procedures in accordance with Chapter 1 of this title. (C) If the person or program fails to appear or be represented at the scheduled hearing, the person or program is deemed to be in agreement with the allegations and proposed action and to have waived the right to a hearing. An appropriate order may be entered without further notice except as required by law. (j) The following applies after disciplinary action has been taken. (1) The department may not reinstate a certificate to a holder or cause a certificate to be issued to an applicant previously denied a certificate unless the department is satisfied that the holder or applicant has complied with requirements set by the department and is capable of engaging in the practice of radiologic technology. The person is responsible for securing and providing to the department such evidence, as may be required by the department. The administrator or the department shall investigate prior to making a determination. (2) During the time of suspension, the former certificate holder shall return the certificate and identification card(s) to the department. (3) If a suspension overlaps a certificate renewal period, the former certificate holder shall comply with the normal renewal procedures in this chapter; however, the department may not renew the certificate until the administrator or the department determines that the reasons for suspension have been removed and that the person is capable of engaging in the practice of radiologic technology. (4) If the commissioner of health revokes or does not renew the certificate, the former certificate holder may reapply in order to obtain a new certificate by complying with the requirements and procedures at the time of reapplication. The department may not issue a new certificate until the administrator or the department determines that the reasons for revocation or nonrenewal have been removed and that the person is capable of engaging in the practice of radiologic technology. An investigation may be required. (5) If the commissioner rescinds the approval of an instructor or program, the formerly approved instructor or program may reapply for approval by complying with the requirements and procedures at the time of reapplication. Approval will not be issued until the administrator or the department determines that the reasons for revocation have been removed. An investigation may be required. sec.143.17.Mandatory Training Programs for Non-Certified Technicians. (a) Purpose. The purpose of this section is to set out the minimum standards for approval of mandatory training programs, as required by the Medical Radiologic Technologist Certification Act (Act), sec.2.05(f), which are intended to train individuals to perform radiologic procedures which have not been identified as dangerous or hazardous. Individuals who complete an approved training program may not use that training toward the educational requirements for a general or limited certificate as set out in sec.143.7 of this title (relating to Types of Certificates and Applicant Eligibility). Effective January 1, 1998, before a person performs a radiologic procedure, the person must complete all the hours in subsection (d)(1)(A)-(D) of this section, and at least one unit in subsection (d)(2)(A) - (G) of this section. (b) Instructor direction required. All hours of the training program completed for the purposes of this section must be live and inter-active and directed by an approved instructor. No credit will be given for training completed by self- directed study or correspondence. (c) Approved instructors. (1) For purposes of this section, an individual is approved by the Texas Department of Health (department) to teach in a training program if the individual meets the requirements of sec.143.9(h)(1)-(2) of this title (relating to Standards for the Approval of Curricula and Instructors). The application for the training program must demonstrate that the instructors meet the qualifications. No application for individual instructor approval is required. (2) A limited medical radiologic technologist (LMRT) may not teach, train, or provide clinical instruction in a portion of a training program which is different from the LMRT's level of certification. For example, an LMRT holding a limited certificate in the chest and extremities categories may not participate in the portion of a training program relating to radiologic procedures of the spine. The LMRT may participate in the portions of the training program which are of a general nature and those specific to the specific categories on the limited certificate. (d) Training requirements. In order to successfully complete a program, each student must complete the following training: (1) courses which are fundamental to diagnostic radiologic procedures: (A) radiation safety and protection for the patient, self and others - 40 classroom hours; (B) radiographic equipment, including safety standards, operation and maintenance-25 classroom hours; (C) image production and evaluation-25 classroom hours; and (D) methods of patient care and management essential to radiologic procedures, excluding CPR, BCLS, ACLS and similar subjects - 8 classroom hours; and (2) one or more of the following units of applied human anatomy and radiologic procedures of the: (A) skull (five views: Caldwell, Townes, Waters, AP/PA, and lateral) - 16 classroom hours; (B) chest - 15 classroom hours; (C) spine - 20 classroom hours; (D) abdomen, not including any procedures utilizing contrast media - 8 classroom hours; (E) upper extremities, - 15 classroom hours; (F) lower extremities, - 15 classroom hours; and/or (G) podiatric - 5 classroom hours. (e) Application procedures for training programs. An application shall be submitted to the department at least 30 days prior to the starting date of the training program. Official application forms are available from the department and must be completed and signed by an approved instructor, who shall be designated as the training program director. The training program director shall be responsible for the curriculum, the instructors, and determining whether students have successfully completed the training program. (1) Official application forms must be executed in the presence of a notary public and shall be accompanied by the application fee in accordance with sec.143.4 of this title (relating to Fees). Photocopied signatures will not be accepted. (2) Application forms and fees shall be mailed to the address indicated on the application materials. The department is not responsible for lost, misdirected, or undeliverable application forms. An application received without the application fee will be returned to the applicant. (f) Application materials. The application shall include, at a minimum: (1) the beginning date and the anticipated length of the training program; (2) the number of programs which will be conducted concurrently and whether programs will be conducted consecutively; (3) the number of students anticipated in each program; (4) the daily hours of operation; (5) the location, mailing address, phone and facsimile numbers of the program; (6) the name of the training program director; (7) a list of the names of the approved instructors and the topics each will teach, and a list of management and administrative personnel and any practitioners who will participate in conducting the program; (8) clearly defined and written policies regarding the criteria for admission, discharge, readmission and completion of the program; (9) evidence of a structured pre-planned learning experience with specific outcomes; (10) a letter or other documentation from the Texas Workforce Commission, Proprietary Schools Section indicating that the proposed trainingprogram has complied with or has been granted exempt status under the Texas Proprietary School Act, Texas Education Code, Chapter 32 and 19 Texas Administrative Code, Chapter 175; and (11) specific written agreements to: (A) provide the training as set out in subsection (d) of this section and provide not more than 75 students per instructor in the classroom; (B) advise students that they are prohibited from performing radiologic procedures which have been identified as dangerous or hazardous in accordance with sec.143.16 of this title (relating to Dangerous or Hazardous Procedures) unless they become an LMRT, medical radiologic technologist (MRT) or a practitioner; (C) use written and oral examinations to periodically measure student progress; (D) keep an accurate record of each student's attendance and participation in the program, accurate evaluation instruments and grades for not less than five years. Such records shall be made available upon request by the department or any governmental agency having authority; (E) issue to each student who successfully completes the program a certificate or written statement including the name of the student, name of the program, dates of attendance and the types of radiologic procedures covered in the program completed by the student; (F) retain an accurate copy for not less than five years and submit an accurate copy of the document described in subparagraph (E) of this paragraph to the department within 30 days of the issuance of the document to the student; and (G) permit site inspections by employees or representatives of the department to determine compliance with this section. (g) Application approval. (1) The administrator shall be responsible for reviewing all applications for training program approval. The administrator shall approve any application which is in compliance with this section. A letter of approval shall be issued for a period of one year. (2) A program shall be denied approval if the application is incomplete or not submitted as set out in this section. The training program director shall be notified in accordance with sec.113.1 of this title (relating to Processing Permits for Special Health Services Professionals.) (3) If approval is proposed to be denied, the training program director shall be notified in writing of the proposed denial and shall be given an opportunity to request a formal hearing within ten days of the training program director's receipt of the written notice from the department. The formal hearing shall be conducted according to the department's formal hearing procedures in Chapter 1 of this title (relating to Texas Board of Health). If no hearing is requested, the right to a hearing is waived and the proposed action shall be taken. (h) Application processing. The department shall use the same process as described in sec.143.6(f) of this title (relating to Application Requirements and Procedures), except the time periods are as follows: (1) letter of acceptance - 30 days; (2) letter of application deficiency - 30 days; (3) letter of approval - 42 days; and (4) letter of denial of approval - 42 days. (i) Renewal. (1) The training program director shall be responsible for renewing the approval of the training program on or before the anniversary date of the initial application. (2) The department shall send a renewal notice to the training program at least 60 days prior to the anniversary date. The department is not responsible for lost, misdirected, undeliverable or misplaced mail. (3) The renewal is effective if the official renewal form and fee in accordance with sec.143.4 of this title are postmarked or delivered to the department on or before the anniversary date. (4) Failure to submit the renewal form and renewal fee in accordance with sec.143.4 of this title by the deadline will result in the expiration of the training program's approval. (5) A training program which does not renew the approval shall cease representing the program as an approved training program. The program director shall notify, or cause the notification of currently enrolled students that the training program is no longer approved under this section. The notification shall be in writing and must be issued within ten days of the expiration of the approval. (6) The training program may reapply for approval and meet the then current requirements for approval under this section. (j) Previously completed training. A person who has completed part or all of the training described in subsection (d) of this section shall be considered to have completed an approved training program for part or all of the training but shall be required to complete the remainder of the training program described in subsection (d) of this section prior to the person's placement on the registry, as set out in sec.143.18 of this title (relating to Registry of Non-Certified Technicians). (1) Unless the person is a registered nurse or certified physician assistant, the previously completed training shall be acceptable only if completed within two years of the time of the person's initial placement on the registry. (2) Previously completed training shall be acceptable only if it was: (A) completed at an education program approved under sec.143.9 of this title; (B) live, inter-active, and instructor-directed and meets the requirements for acceptance as continuing education credit for MRTs and LMRTs as set out in sec.143.11 of this title (relating to Continuing Education Requirements); or (C) accepted for continuing education credits by the Board of Nurse Examiners. (3) If a person has completed part of the training described in subsection (d) of this section, the program director of the training program shall verify that the previously completed hours comply with this section. (4) If a person has completed all of the training described in subsection (d) of this section, the department shall verify that the previously completed hours comply with this section at the time of the person's placement on the registry. (5) Verification of previously completed training shall be made by reviewing only original certificates, official transcripts, printed course curriculum, syllabi, outlines or other documentation acceptable to the department issued in the name of the person who is seeking credit for previously approved training. Photocopied certificates or transcripts will not be accepted for review. (6) This subsection shall expire on January 1, 1998. (k) The Board of Health shall consider adopting rules later this years to describe the training programs for RNs, PAs, and podiatric procedures. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. issued in Austin, Texas, on June 7, 1996 TRD-9608086 Susan K. Steeg General Counsel Texas Department of Health Effective date: July 8, 1996 Proposal publication date: December 22, 1995 For further information, please call: (512) 458-7236 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 15. Medicaid Eligibility SUBCHAPTER G. Application for Medicaid 40 TAC sec.15.612 The Texas Department of Human Services (DHS) adopts an amendment to sec.15.612, concerning processing deadlines for Medicaid applications, in its Medicaid Eligibility rule chapter. The amendment is adopted without changes to the proposed text as published in the April 5, 1996, issue of the Texas Register (21 TexReg 3001) and will not be republished. The justification for the amendment is to clarify processing deadlines for applications. The amendment will function by ensuring that clients under age 65 years, who do not need to have eligibility established by DHS's Disability Determination Unit, will receive timely benefits. DHS received one comment from Legal Aid of Central Texas regarding the adoption of the proposed amendment. The commenter suggested that references to disability established by Medicare for the Qualified Medicare Beneficiary (QMB) and Specified Low-Income Medicare Beneficiary (SLMB) programs be deleted. DHS disagrees. The references were included specifically to ensure that staff understand that a separate disability determination for QMB and SLMB applicants is not necessary and that eligibility must be determined within 45 days. DHS is adopting the rule without changes. 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 Government Code sec.531.021, which provides the Health and Human Service Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code sec.sec.22.001-22.030 and sec.sec.32.001-32.042. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 5, 1996. TRD-9607939 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: July 1, 1996 Proposal publication date: April 5, 1996 For further information, please call: (512) 438-3765 CHAPTER 90.Intermediate Care Facilities Serving Persons with Mental Retardation or a Related Condition SUBCHAPTER F.Inspections, Surveys, and Visits 40 TAC sec.90.193 The Texas Department of Human Services (DHS) adopts new sec.90.193 without changes to the proposed text published in the April 30, 1996, issue of the Texas Register (21 TexReg 3690). Justification for the new section is to allow providers another way to handle dispute resolution. The new section will function by allowing the election of arbitration by Intermediate Care Facility for the Mentally Retarded (ICF/MR), as an alternative to the hearing process and relating to the renewal and/or suspension of a license, assessment of a civil or a monetary penalty, or the assessment of a penalty under the Human Resources Code. The department received no comments regarding the adoption of the new section. The new section is adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs. The new section implements the Health and Safety Code, sec.sec.242.001-242.186, and the Human Resources Code, sec.sec.22.001-22.030. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 10, 1996. TRD-9608152 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: July 15, 1996 Proposal publication date: April 30, 1996 For further information, please call: (512) 435-3765 PART XIX. Texas Department of Protective and Regulatory Services CHAPTER 720.24-Hour Care Licensing The Texas Department of Protective and Regulatory Services (TDPRS) adopts the repeal of sec.sec.720.24-720.37 and sec.sec.720.39-720.62; and new sec.sec.720.24-720.60, in its 24-Hour Care Licensing rule chapter. The new sec.sec.720.24-720.29, 720.32-720.35, 720.39-720.45, and 720.47-720.59 are adopted with changes to the proposed text published in the March 12, 1996, issue of the Texas Register (21 TexReg 2034). The repeal of sec.sec.720.24-720.37 and sec.sec.720.39-720.62; and new sec.sec.720.30, 720.31, 720.36-720.38, 720.46 and 720.60 are adopted without changes and will not be republished. The justification for the repeals and new sections is to include substantive changes resulting from amendments to V.T.C.A., Family Code, sec.161.103 and sec.162.308, 74th Legislature, Regular Session (1995); and to make editorial revisions, which will clarify the minimum standards, make them easier to read, and more useful to care providers and licensing staff. The repeals and new sections will function by ensuring that legislative changes will be included and the rules will be clearer and easier to use. During the public comment period, TDPRS received no comments regarding adoption of the repeals and new sections; however, TDPRS is adopting the rules with minor editorial changes for clarification. References to "Licensing Division" have been deleted. The words "child-placing" before the word "agency" has been added in the first reference to the agency in some sections and has been deleted in certain areas of the rule where not needed. In sec.720.25(6), the words "assigned in the agency's policies" are added to clarify the word "responsibilities." The word "current" is deleted from references to copies, policies, and organizational charts. SUBCHAPTER A. Standards for Child-Placing Agencies (24-Hour Care and Adoption) 40 TAC sec.sec.720.24-720.37, sec.sec.720.39-720.67 The repeals are adopted under V.T.C.A., Human Resources Code, Chapters 40 and 42, which provides the department with the authority to propose and adopt rules to ensure compliance with state and federal law and to facilitate the implementation of departmental programs. The repeals implement V.T.C.A., Human Resources Code, Chapter 40 and 42. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 5, 1996. TRD-9607919 C. Ed Davis Deputy Commissioner for Legal Services Texas Department of Protective and Regulatory Services Effective date: July 1, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER A.Standards for Child-Placing Agencies 40 TAC sec.sec.720.24-720.60 The new sections are adopted under V.T.C.A., Human Resources Code Chapters 40 and 42, which provides the department with the authority to propose and adopt rules to ensure compliance with state and federal law and to facilitate the implementation of departmental programs. The new sections implement V.T.C.A., Human Resources Code Chapter 40 and 42. sec.720.24.Structure of a Child-Placing Agency. The agency must (1) be legally established to operate within Texas and comply with all applicable statutes; (2) along with the application for a license, submit documentation of the legal basis for operation to the Texas Department of Protective and Regulatory Services (TDPRS); (3) notify TDPRS of any planned change in the agency's legal basis for operation at least five working days before that change is made; (4) observe the conditions of the license; (5) report any planned change impacting the conditions of the license to TDPRS at least five working days before the change is made; (6) have legal authority to place a child before making the placement; and (7) not act as an agent for unlicensed agencies, institutions, or individuals. When birth parents take an active role in the selection of an adoptive placement, the agency making the adoptive placement must ensure that the placement selected is in the child's best interest. sec.720.25.Governing Body of the Child-Placing Agency. The agency must (1) have a governing body that is responsible for, and has authority over, the agency's policies and activities; (2) submit a written copy of the names, addresses, and titles of the officers or executive committee of the governing body with the application for a license; (3) submit written notice of any change in the composition of the governing body to the Texas Department of Protective and Regulatory Services (TDPRS) within 10 working days of such change; (4) inform TDPRS of any change in the information about governing body officers or executive committee members within 10 working days of learning about such change; (5) have policies that clearly state the responsibilities assigned to the governing body; and (6) have a governing body that must carry out the responsibilities assigned in the agency's policies. sec.720.26.Fiscal Accountability. (a) General fiscal requirements. The child-placing agency must (1) be established and maintained on a sound fiscal basis; (2) maintain complete financial records; and (3) have a fee policy that clearly describes what fees are charged and what services are covered by the fees. (b) Fiscal requirements for new agencies. New agencies must (1) set up a financial record keeping system approved by a certified public accountant (CPA) to meet generally accepted accounting standards (GAAS) as described in sec.720.64 of this title (relating to Audit and Accounting Standards for Child-Placing Agencies Providing Adoption Services). (2) submit a 12-month budget to the Texas Department of Protective and Regulatory Services (TDPRS) when the signed application is submitted; (3) have reserve funds or documentation of available credit at least equal to operating costs for the first three months of operation; and (4) have predictable funds sufficient for the first year of operation. (c) Fiscal requirements for agencies providing adoption services. (1) General requirements. Agencies providing adoption services must (A) have an annual audit by an independent CPA. The audit must be performed in accordance with generally accepted auditing standards (GAAS) as described in sec.720.64 of this title (relating to Audit and Accounting Standards for Child- Placing Agencies Providing Adoption Services). In lieu of an audit, agencies may submit a special report prepared by a CPA that meets the intent of the audit requirement. (B) submit the following information to the TDPRS annually: (i) audit information pertaining to adoption fees and expenditures. The information must include an opinion letter from the CPA performing the audit verifying that the information submitted accurately reflects adoption related income and disbursements. Agencies submitting a special report in lieu of an audit must meet the intent of the standard in regard to the special report. (ii) other financial information, as requested, required for the licensing review to determine that adoption related income and disbursements are reasonable, appropriate, and in compliance with minimum standards. (C) ensure that annual income from adoption fees and any reimbursements related to adoption expenses, and gifts, donations, grants, or other sources of income related to adoption services does not exceed the agency's annual allowable and reasonable expenditures for providing adoption-related services to children, birth parents, adoptive applicants, and adoptive parents. The agency may carry over a maximum of three months adoption-related operating expenses as a reserve fund from fiscal year to fiscal year. Only allowable and reasonable expenditures may be included in such calculations. (D) not make any payments for adoption referrals. (E) have an adoption fee or adoption fee schedule equally applied to all clients. (2) Financial assistance to birth parents. (A) An agency must not influence or attempt to influence birth parents to make a decision to relinquish their child by offering any form of financial or other material incentive. (B) An agency must not make any payments to, or on behalf of, birth parents for goods or services that have already been paid for. An agency must not seek reimbursement for any expense not met by the agency. (C) An agency may make allowable and reasonable expenditures on behalf of birth parents only when a demonstrated need for expenditures exist. Unless an agency can demonstrate that the basic health or safety of the birth parent or child is in imminent danger, the agency may not, by action or advice, disrupt an existing arrangement where needs are met and then make expenditures to meet those needs. (D) When making allowable and reasonable expenditures on behalf of birth parents, children, and adoptive parents, an agency providing adoption services must maintain financial records that clearly state the specifics of each transaction. (i) An agency may provide cash payments to birth parents to cover costs of food, household supplies, personal hygiene and grooming products, and gasoline or public transportation. Each disbursement may cover a period of up to one month. (ii) An agency may provide a cash payment(s) to birth parents for the purchase of necessary clothing. (iii) An agency making allowable expenditures on behalf of birth parents must establish in its policies a maximum amount per category per time period based on such generally accepted criteria as the cost-of-living index. (iv) Each transaction must be documented by receipts. Receipts must include date, payee identification, purpose, and clear indication that funds were expended for services rendered or goods provided. Canceled checks do not meet the documentation requirement. (E) An agency providing adoption services may only make direct payments to a birth parent as permitted in subparagraph (D) of this paragraph. (F) If the birth parent chooses not to relinquish a child for adoption, the agency must not require repayment from that birth parent for any services. This policy must be posted in the agency's offices and the agency must provide this information to birth parents in writing. sec.720.27.Child-Placing Agency Policies. The agency must (1) have clearly stated, governing body approved policies that at least meet minimum standards and are fully implemented; (2) have policies that include a statement that describes the agency's services, including the eligible population and the needs the agency will meet for that population; (3) make policies available for review upon request by the Texas Department of Protective and Regulatory Services (TDPRS) and clients of the agency; (4) operate according to its written policies; (5) report any changes in the written policies to TDPRS at least five working days before implementing the change; and (6) maintain copies of all policies. Policies must indicate governing body approval and effective date. sec.720.28.Client Rights. Child-placing agencies must (1) ensure that clients (defined as birth parents, foster parent applicants, or adoptive applicants who enter into a relationship with the agency) have access to information necessary to make informed decisions; (2) inform clients that minimum standards, compliance status reports, and the agency's policies are available for review upon request; (3) have a written appeal process for agency clients in regard to all actions and decisions taken by the agency affecting those clients; (4) inform clients of the right to appeal agency actions and decisions that affect them and of the procedures for making an appeal; and (5) inform clients of the procedures for making a complaint to the Texas Department of Protective and Regulatory Services. sec.720.29.Children's Rights. (a) General rights. The child-placing agency must ensure that (1) children's rights are protected while a child is in substitute care and in adoptive placements prior to consummation of the adoption. (2) children are not abused or neglected. (3) children are placed and supervised appropriately in the least restrictive environment capable of meeting their needs. The placement must meet the child's physical and emotional needs, and must provide consideration for sibling relationships and cultural needs. (4) children have an appropriate education. (5) children have an opportunity to participate in community functions and recreational activities and to have their social needs met. (b) Family contact. (1) Children must have the opportunity for sibling visits and contact when a sibling group is not placed in the same home or facility. (2) Unless parental rights have been terminated or relinquished, or unless contacts are not in the child's best interest, contacts between children and their parents must be allowed according to the agency's policies. (A) Unless the child's best interest or a court order necessitates restrictions, children must be allowed to send and receive mail and to have telephone conversations with family members or managing or possessory conservators. (B) When either the child or his family requests contact, but that contact is not in the child's best interest, level I child-placing staff must determine the communication restrictions. Reasons for the restrictions must be explained to the child and documented in his record. (C) If restrictions continue longer than one month and the child or his family continues to request contact, level I child-placing staff must evaluate these restrictions at least monthly. Reasons for the continued restrictions must be explained to the child and documented in his record. (D) If communications or visits are limited for practical reasons (such as expense), the limits must be determined with the child and his parents or managing conservator. The limits must be documented in the child's record. (c) Personal rights. (1) Children must have personal clothing suitable to their age and size. Children must have some choice in selecting their clothing. (2) Children must be given training in personal care, hygiene, and grooming. Each child must be supplied with equipment for personal care, hygiene, and grooming. (3) Money a child earns or is given as a gift or allowance must be his personal property. (4) A child's money must be accounted for separately from the agency's funds or the funds of the facility or family with whom he is placed. (5) A child must not be required to use his personal money to pay for room and board, unless it is a part of the service plan and approved in writing by the parents or managing conservator and the agency. (6) A child must be allowed to bring personal possessions to the facility or home where he is placed and allowed to acquire other personal possessions. Any limits on the kinds of possessions a child may or may not receive must be discussed with the child and his parents or managing conservator. (7) Before involving a child in any fund raising or publicity for the agency, the written informed consent must be obtained of the child (if the child is able to give consent) and of the child's parents or managing conservator. sec.720.32.Serious Incident Reports. The child-placing agency must (1) complete written reports for serious incidents involving staff or children within 24 hours of learning about the occurrence. Each report must include the date and time of the occurrence, the staff or children involved, the nature of the incident, and the surrounding circumstances. (2) report the following types of serious incidents to the Texas Department of Protective and Regulatory Services (TDPRS) and the child's parents or managing conservator by the next workday: (A) suicide attempts; (B) abusive treatment and abusive activity among children, including alleged abuse; (C) incidents that critically injure or permanently disable a child; and (D) a child's death. (3) have current written policies and procedures to follow when a child is absent without permission. These must include: (A) time frames for determining when a child is absent without permission; (B) actions that child-placing agency staff must take to locate the child; and (C) procedures (including time frames) that staff must follow to notify the parents or managing conservator and the appropriate law enforcement agency. (4) If a child is not found, absence without permission must be reported to the child's parents or managing conservator and to the appropriate law enforcement agency. (5) If a child is absent without permission, the circumstances surrounding his absence, efforts to locate the child, and notification of the child's parents or managing conservator and the appropriate law enforcement agency must be documented. If the parent or managing conservator cannot be located, attempts to report the child's absence must be documented. sec.720.33.Client Records. The child-placing agency must (1) maintain complete individual client records. (2) ensure that client records are kept confidential and inaccessible to unauthorized persons. (3) ensure that information in client records may only be disclosed for direct and authorized services to the child or family, or as part of the professional administration of the agency. (4) ensure that adoption records are kept confidential in accordance with the placement model, for example, open adoption, identified adoption, designated adoption, and closed adoption. (5) ensure that client records are available to the Texas Department of Protective and Regulatory Services (TDPRS) for review. (6) ensure that for children placed in substitute care, agencies maintain complete case records for at least 10 years after the child is discharged from care. After 10 years, at least the following must be retained permanently: (A) any health records that physicians advise will be of medical importance to the child; and (B) information concerning the termination of parental rights or the court order. (7) ensure that for children placed in adoption, complete client records are maintained permanently. sec.720.34.Personnel Policies. The child-placing agency must (1) have an organization chart showing the administrative structure and staffing, including the lines of authority; (2) have a written job description for each employee; (3) have volunteer policies describing the way volunteers will be used by the agency, if an agency uses volunteers; and (4) have written policies covering volunteer qualifications, screening and selection procedures, orientation, and training programs, if agency volunteers have contact with clients. sec.720.35.General Personnel Requirements. General personnel requirements are that (1) the child-placing agency must reassign or remove from direct contact with clients any employee, volunteer, or foster parent against whom any of the following legal decisions are returned: (A) an indictment alleging commission of any felony classified as an offense against the person or family, or of public indecency, or of violation of the Texas Controlled Substances Act; (B) an indictment alleging commission of any misdemeanor classified as an offense against the person or family, or of public indecency; and (C) an official criminal complaint accepted by a district or county attorney alleging commission of a misdemeanor classified as an offense against the person or family, or of public indecency. (2) such reassignment or removal, as described in paragraph (1) of this subsection, must remain in effect pending resolution of the charges. (3) no one may serve as a staff, volunteer, or foster parent having contact with clients, or be approved as an adoptive parent, who has been convicted of any felony classified as an offense against the person or family, or of public indecency, or of violation of the Texas Controlled Substances Act, or of any misdemeanor classified as an offense against the person or family or of public indecency, unless the Texas Department of Protective and Regulatory Services (TDPRS) has ruled that proof of rehabilitation has been established. (4) no one may serve as a staff, volunteer, or foster parent having contact with clients or be approved as an adoptive parent for whom "reason to believe" (or a comparable determination in another state) has been determined for child abuse or neglect, unless TDPRS determines that such service is acceptable. (5) the agency must report any occurrences under paragraphs (1)-(3) of this section to TDPRS by the end of the first workday after learning of the occurrence. (6) persons whose behavior or health status presents a danger to clients must not be allowed at the agency or at homes verified by the agency. (7) before having contact with children in care, staff, volunteers, foster parents, foster family household members, and employees in foster family homes must be tested for tuberculosis according to the recommendations of the Texas Department of Health or local health authorities. (8) the agency must have a personnel file for each employee, volunteer, and foster parent whose work relates to child-placing activities, work with birth parents, and children in care. Each file must contain the following: (A) date of employment; (B) documentation that the person meets the qualifications for the position; (C) tuberculosis test reports, if required, for persons having contact with children; (D) criminal background check and child abuse/neglect report information system check reports; (E) documentation that the person meets training requirements; and (F) date and reason for separation, if applicable. sec.720.39.Training Requirements. (a) Agency training plan or program. The child-placing agency must have a written training plan or program for all child-placing staff, foster parents, or agency home child-care staff. The plan must include stated time frames for assessment of each staff's training needs, training content, and number of training hours required. (b) Pre-service training requirements. (1) All child-placing staff, foster parents, or agency home child-care staff must receive an orientation to the agency's policies and the services provided. (2) The agency must ensure that all foster parents or agency home child-care staff complete eight hours of pre-service training in areas appropriate to the needs of children for whom they will be providing care. Pre-service training must be completed before children are placed for care. (3) Prior to being assigned child-care responsibilities, the primary caretaker (at a minimum) in a foster family unit, all agency home child-care staff, and all agency foster group home parents must successfully complete training from a certified instructor in infant/child cardiopulmonary resuscitation (CPR) and first aid. (c) Ongoing training requirements. (1) Level I child-placing staff must obtain at least 20 clock hours of job- related training annually. At least 10 of the clock hours obtained each year must relate directly to child-placing responsibilities. (2) Other child-placing staff must obtain at least 30 clock hours of job-related training during the first year of assignment to child-placing responsibilities and at least 20 clock hours annually hereafter. All qualifying clock hours must relate directly to child- placing responsibilities. (3) Foster parents or agency home child-care staff must have at least the following training: (A) Infant/child CPR training and first aid training must be updated as required to maintain certification. Infant/child CPR training and first aid training must meet criteria established by the Texas Department of Protective and Regulatory Services' Licensing Division. (B) For agency foster family homes providing therapeutic foster care, the foster family unit must complete at least 50 clock hours of training annually. Agency home child- care staff and agency group home foster parents must each complete at least 50 clock hours of training. (C) For agency foster family homes that do not provide therapeutic foster care, the foster family unit must complete at least 20 clock hours of training annually. Agency home child-care staff and agency group home foster parents must each complete at least 20 clock hours of training. (D) Annual training hour requirements are in addition to initial first aid and CPR training. First aid and CPR updates may be included in the annual training requirements. (4) At least 75% of the required annual training for child-placing staff, foster parents, or agency home child-care staff must consist of course work from an accredited educational institution; workshops, seminars, other direct training provided by qualified agencies, organizations, and individuals; in-service training; or self-instruction programs. To qualify, in-service training and self-instruction programs must include stated learning objectives, curriculum and learning activities, and an evaluation component. (5) All training must be documented-including date, subject, number of hours, and training provider. (6) When staff or foster parents complete training in excess of the minimum requirements, up to one-half of the following year's annual training requirement may be carried over from the previous year. sec.720.40.Placement of a Child in Substitute Care. (a) If a child-placing agency provides foster care services, the agency must have written foster care policies that include (1) specific selection criteria for accepting foster parent applicants or agency home child-care staff. (2) specific selection criteria for making decisions about the number, ages, and needs of children who may be placed with foster parents or in agency homes where child care staff are employed. (3) screening procedures for foster parents or agency home child-care staff. (4) a statement of the rights and responsibilities of the agency and foster parents or foster families in regard to the relationship between the agency and the foster family. The statement must include the following information: (A) roles; (B) training agreements; (C) communication process; (D) financial reimbursement; (E) placement procedures; (F) support services; (G) information sharing; (H) participation in the treatment process; and (I) the agency's grievance procedure. (b) The agency must have a written pre-service training policy for foster parents or agency home child-care staff. The policy must include the type and amount of pre-service training in relation to the ages and needs of the children who will be placed in the home. (c) The agency must screen applicants, make specific placement decisions, and provide pre-service training according to its stated policies. (d) An agency must not permit an agency home to provide more than one type of care if this conflicts with the children's best interest, or with the use of staff or space in the home. (e) The agency must have a policy that covers the following rights of children in agency care: (1) contact between the child and the child's family; (2) any limitations to the child's contact with the family; (3) the child's right to receive gifts, telephone calls, letters, other communications; (4) the right to confidentiality; (5) the right to be free of coercion regarding participation in public events, media presentations, and fund-raising events; (6) the right to be free from any harsh, cruel, unusual, unnecessary, demeaning, or humiliating discipline or punishment or from any physical punishment; and (7) the right to continued contact with siblings. sec.720.41.Substitute Care Intake. (a) Except in an emergency placement, intake information must be gathered, documented, reviewed, and the intake process and decision to place must be approved by level I child-placing staff prior to placement. (b) In an emergency placement, the intake study must be completed within 30 days of the placement, including approval by level I child-placing staff. (c) The agency must obtain all available information regarding the child being considered for substitute care placement including: (1) health, social, educational, genetic and family history, and other information required by the Texas Family Code, Section 16.032; (2) history of any previous placements, including date and reason for placement; (3) the child's understanding of and response to consideration of placement; and (4) the child's legal status. (d) A child must have a medical examination by a licensed health practitioner within 30 days prior to placement or within 30 days after placement. A child who is being transferred from a licensed agency and who has had a medical examination within the past year is exempt. The signed and dated examination report must be placed in the child's record. (e) Children three years old or older must have a dental examination by a licensed dentist or a dental hygienist working under the supervision of a licensed dentist within one year before placement. Otherwise, an appointment for a dental examination must be made within 60 days after placement. Documentation of the appointment or of the dental exam must be placed in the child's record. (f) Children must be tested for tuberculosis according to the recommendations of local public health authorities or the regional office of the Texas Department of Health in the county in which the child has been living. (g) Unless the agency is the managing conservator at the time of placement, there must be a written agreement between the agency and the child's parents or managing conservator. A copy of the agreement must be in the child's record. The agreement must include the following: (1) authorization for the agency to care for the child; (2) a medical consent form signed by a person authorized to give consent by the Texas Family Code; and (3) a statement of the reason for placement and anticipated length of time in care. (h) Agencies must provide written notification to parents or managing conservators regarding the following: (1) the agency's rules regarding visits, gifts, mail, and telephone calls; (2) the type and frequency of reports the agency will make to parents or managing conservators; (3) the agency's discipline policies; (4) the agency's policy or program concerning religious training; and (5) information concerning trips. sec.720.42.Substitute Care Placement. (a) When the child-placing agency places children into a regulated child-care facility, the responsibility for the child's care becomes a joint responsibility between the agency and the regulated child care facility. The facility must meet the appropriate minimum standards. The agency is not required to duplicate activities, such as service planning, being carried out by the facility. In regard to time frames and any specifics of care, the minimum standards for the regulated child care facility apply. (b) In a non-emergency placement, all information from the intake study relating to the child's needs and the agency's plans for care and management must be shared with the foster parents or staff responsible for the child's care prior to placement. (c) In an emergency placement, the agency must provide all available intake study information relating to the child's needs and the agency's plans for care and management to foster parents or staff responsible for the child's care at or before the time of placement. (d) In an emergency placement, within 10 working days of completion of the intake study, the agency must provide all information from the intake study relating to the child's needs and the agency's plans for care and management to foster parents or staff responsible for the child's care. (e) The agency must document the intake information shared with foster parents or staff responsible for the child's care, including date(s) in the child's record. (f) In a non-emergency placement, children over six months of age must visit the foster home or child care facility at least once before placement. The visit must be documented in the child's record. (g) If an agency uses the agency home of another agency, there must be a written agreement between the agencies specifying the roles and responsibilities of each agency. (h) The agency must document in the child's record that a child with special needs is placed in a foster home or child care facility capable of meeting such needs, or that the agency has in place other arrangements to ensure the needs are met. sec.720.43.Initial Service Plan. (a) Within 30 days after placement, the child-placing agency must develop an initial service plan for the child. For children placed in emergency shelters, the agency must develop, review, and update the discharge plan as required by emergency shelter standards. (b) The agency must make diligent efforts to involve the following persons in the service planning process: (1) the child (as appropriate); (2) the parents or managing conservator; and (3) the foster parents or child care facility. (c) Persons participating in the plan development must be documented in the child's record. (d) The service plan must identify and include the following: (1) the child's needs, in addition to basic needs related to day-to-day care and development must include (A) areas of special needs that must be considered include medical, dental, developmental, educational, social, and emotional needs; and (B) for children 16 years of age and older, the plan must include preparation for adult living. (2) specific strategies to meet the child's needs, including instructions to foster parents or staff responsible for the care of the child. Instructions must include specific information about: (A) supervision; (B) discipline and behavior management; and (C) trips and visits away from the home. (3) expected outcomes of placement for the child, including the permanency plan for the child and estimated length of time in care. (e) Agency staff must have face-to-face contact with the child at least quarterly. Contacts must be documented in the child's record. (f) The agency must obtain professional consultation and treatment for children with developmental disabilities or with problems adjusting to the social, home, or school environment. Any record of specialized testing or treatment must be documented in the child's record. sec.720.44.Service Plan Review. (a) The child-placing agency must develop a policy for reviewing plans of service appropriate to the needs of the children served. The policy must address issues of placement disruption and planned subsequent placements in addition to regular reviews. The policy must be reviewed and approved by the Texas Department of Protective and Regulatory Services (TDPRS). (b) The child's parents or managing conservator must be notified of a service plan review in advance. Documentation of the notice must be included in the child's record. (c) The agency must make diligent efforts to involve the following persons in the service plan review: (1) the child; (2) the child's parents or managing conservator; (3) child-placing agency staff; and (4) foster parents or child-care facility staff. (d) Participation must be documented in the child's record. (e) The service plan review must include: (1) an evaluation of progress towards meeting identified needs; (2) any new needs identified since the plan was developed or last reviewed and strategies to meet these needs, including instructions to foster parents or staff responsible for the child's care; (3) any changes to the expected outcomes of placement, the permanency plan, and the estimated length of time in care; and (4) reasons for continued placement, if the review shows no progress towards meeting the identified needs of the child. sec.720.45.Subsequent Placement. (a) Non-emergency subsequent placements. (1) Level I child-placing staff must approve a planned move before a child is moved from one placement to another. (2) The agency must arrange for at least one pre-placement visit in the child care facility or foster home before moving a child over six months of age. This must be documented in the child's record. (b) Emergency subsequent placements. (1) Level I child-placing staff must approve the move within 10 working days of placement. (2) Agency staff must discuss the circumstances that make the move necessary with the child, as appropriate to the child's age and ability to respond orally and behaviorally to such a discussion. The discussion must take place prior to the move and must be documented in the child's record. (3) The child's understanding of, and response to, the move must be documented in the child's record. (4) Prior to placement, social, medical, psychological, and school history as it relates to the child's needs and plans for care and management must be shared with the foster parents or child-care facility staff. The information provided must be documented in the child's record. sec.720.47.Foster Care Study. (a) The foster home study process for all family applicants must include at least the following documented contacts: (1) at least one individual interview with each foster parent; (2) at least one additional interview with the foster parents, either jointly or as a family group; (3) at least one interview with each child and any other person living full or part time with the family; (4) at least one visit to the foster home when all members of the household are present; and (5) at least one contact-by telephone, in person, or by letter-with each adult child of the foster family no longer living in the home. (b) The agency must conduct a foster home study for all family applicants being considered for verification as an agency foster family home or agency foster group home. The agency must obtain all available information about the foster home applicants regarding: (1) motivation for providing foster care; (2) health status (physical, mental, and emotional) of all persons living in the home in relation to the family's ability to provide foster care; (3) quality of marital and family relationships in relation to the family's ability to provide foster care; (4) foster parents' feelings about their childhood and parents, including any history of abuse or neglect and their resolution of such experience; (5) values, feelings, and practices in regard to child discipline and care; (6) sensitivity to, and feelings about, children who may have been subjected to abuse, neglect, separation from, and loss of their biological family; (7) sensitivity to, and feelings about, birth families of children in substitute care; (8) attitude of the extended family regarding foster care; (9) sensitivity to, and feelings about, different socioeconomic, cultural, and ethnic groups in relation to the family's ability to provide foster care for and assist in maintaining the cultural or ethnic identity of children from different backgrounds; (10) sensitivity to, and feelings about, maintaining sibling relationships; (11) expectations of, and plans for, foster children; and (12) the family's ability to work with specific kinds of behaviors and backgrounds. (c) Staff responsible for the foster home study must evaluate information obtained during the study process and must make specific recommendations about the family's capacity to work with children. This must include, but is not limited to, such characteristics as age, sex, special needs, and number of children. (d) The agency must obtain the following information prior to approving an agency home or agency foster group home for placement: (1) documentation that all members of the household and any employees of the foster family have been tested for tuberculosis according to the recommendations of the Texas Department of Health or local public health authorities. (2) an approved fire inspection report. If fire inspections are not available, the Texas Department of Protective and Regulatory Services' (TDPRS's) fire safety checklist may be used. (3) an approved health inspection report. If health inspections are not available, TDPRS's health inspection checklist may be used. (4) a sketch of the floor plan of the home showing room dimensions and purposes of rooms. sec.720.48.Foster Home Verification. (a) Before verifying an agency home, the child-placing agency must perform an inspection to document that the home meets appropriate minimum standards. Verification must include either that firearms are not and will not be present in the home, or that all appropriate precautions are taken. (b) Before issuing an agency home verification, the agency must document that level I child-placing staff have approved the home for placement, including the number, age, and sex of the children for whom the home is approved. (c) The agency must ensure that the agency home has sufficient appropriately qualified staff to provide proper care and treatment, and to protect the health and safety of children in care. (d) An agency must not place a child into a home until the home has been studied and verified as an agency home. The agency must not place more children in an agency home than the number for which the home is approved. (e) An agency home verification form must be given to each approved agency home after the foster home study and after any change that affects the conditions of the verification certificate. (f) The agency must sign a written agreement with the foster parents at the time the agency home is verified. Both the agency and the foster parents must have a copy of the agreement, and a copy must be filed in the foster home record. This agreement must specify the following: (1) what the financial agreement is between the agency and the foster home; (2) that the foster home agrees not to accept a non-relative child for 24-hour care from any source other than through the agency; (3) that the agency has the right to remove the child at the agency's discretion; (4) that the agency must consent to discharge a child from the home; (5) that visits by the child's parents or relatives must be arranged through the agency; (6) that the agency is responsible for regular supervision of the foster home; (7) the agency's policies regarding child care, discipline, supervision of children, and children's visits or trips away from the foster home; and (8) the agency's policies regarding reports to the agency from the foster parents regarding foster children and other events or occurrences impacting the provision of foster care. sec.720.49.Foster Home Management. (a) The child-placing agency must evaluate all minimum standards for each agency home at least every two years, and whenever a change is made that affects the conditions of the verification certificate or the composition of the foster family. Such changes include the admission of a person for care age 18 years or older related to the foster family or the children in care. They also include the addition of any resident in the home age 18 years or older. The re- evaluation study must document that appropriate minimum standards are met. (b) Supervisory visits must be made at least quarterly to each agency home in which children are placed. These visits must be documented in the foster home record. Documentation must include notes on standards evaluated for compliance, any noncompliance found, and plans for correction. The agency must follow-up on any noncompliance and document that corrections have been made. (c) Supervisory visits are not required for homes in which no children are being cared for. Such homes must be re-evaluated before additional placements are made. (d) The agency must ensure that the agency home has sufficient adult caregivers or staff with needed qualifications to protect the health and safety of the children in care. (e) Verification of an agency home applies only to the location of the residence at the time the study is made. If the family moves, the agency must not use the home until temporary verification for the new location is issued. Temporary verification is valid for no longer than six months from the date of issuance. Temporary verification may not be renewed. Verification of the agency home at the new address must be completed before the expiration of the temporary verification, or the agency may not use the home. (f) All verifications and revocations must be reported to the Texas Department of Protective and Regulatory Services on the forms supplied. sec.720.50.Adoption Policies. (a) Child-placing agencies making adoptive placements must have written adoption policies. (b) Adoption policies must include: (1) qualifications, screening and selection criteria and procedures for adoptive parents or families; (2) training policy and program for the adoptive parent or family; and (3) a statement of the rights and responsibilities of the agency and adoptive parents in regard to the agency-adoptive family relationship prior to consummation of the adoption. (c) Agencies making adoptive placements must specify in their service provision policy the degree to which birth parents are involved in planning for and placing their child. (d) Agencies making adoptive placements must include counseling services and post- adoption services in their service provision policies. (e) Agencies must not have policies or make adoption placement decisions on the presumption that placing a child in a family of the same race or ethnicity as the race or ethnicity of the child is in the best interest of the child. sec.720.51.Adoption Service Plan. (a) A service plan must be developed for each child or sibling group (if siblings will be placed for adoption into the same home). For children with a foster care service plan prior to preparation for adoption, the adoption service plan may be a continuation of the foster care service plan. (b) The adoption service plan must consider the needs of the birth family (unless parental rights have been involuntarily terminated), the needs of the child or sibling group, and needs of the prospective or identified adoptive family. (c) The adoption service plan must address the needs relating to the adoption process for the birth family, the child or sibling group, and the adoptive family. (d) The adoption service plan must include specific strategies to meet the needs identified and must include an estimate of the time required to consummate the adoption. (e) The agency must develop a policy for reviewing plans of service appropriate to the needs of the children served. The policy must be reviewed and approved by the Texas Department of Protective and Regulatory Services. sec.720.52.Birth Parent Preparation. (a) Child-placing agency staff must have at least two face-to-face contacts with both birth parents prior to placement. Alternatively, agency staff must document in the adoption record diligent efforts to accomplish this contact and must also document the reasons why the contacts could not be made. (b) Prior to establishing any formal relationship, the agency must provide written information to the birth parents regarding the following: (1) alternatives and options to adoption for the birth parent and child; (2) the services the agency provides, including counseling and post-adoption services; (3) adoption registries; (4) legal rights and responsibilities of the birth parents in regard to: (A) relinquishment of parental rights; (B) waivers of relinquishment; (C) affidavit of status; (D) termination of parental rights; and (E) designating the father of a child as "unknown." (5) any assistance available through the agency to meet housing, medical and prenatal care and other needs. (c) Birth parents must not be pressured to make a decision about placing their child. (d) An affidavit for voluntary relinquishment of parental rights must not be signed by the birth parent until 48 hours after the birth of the child. sec.720.53.Adoptive Child Preparation. (a) For children six months of age and older, child-placing agency staff must make a minimum of three face-to-face contacts with the child being prepared for adoption. For infants ages zero to six months, one face-to-face contact is required. Contacts must be documented in the adoption record. (b) The agency must obtain professional assessments of the physical, mental, and emotional status of a child being considered for adoption and must obtain a developmental assessment. These assessments must be current at the time of placement-within 30 days for children ages zero to 18 months; within three months for children ages 18 months to five years; and within six months for children ages five years and older. The agency must provide any recommended testing for the child being considered for adoption. The assessments and results must be documented in the adoption record. (c) The agency must provide counseling to children two years of age and older being considered for adoption. Counseling must include exploration of the child's understanding of what is taking place and the child's feelings about adoption, separation, and loss issues related to the birth family. (d) The agency must refer any child who has a disability or who, because of developmental delays or history may have a disability, to the Social Security Administration to determine eligibility for Supplemental Security Income. sec.720.54.Adoptive Applicant Preparation. (a) The preparation process for adoptive applicants must include at least the following documented contacts: (1) at least one individual interview with each applicant; (2) at least one additional interview with the adoptive applicants, either jointly or as a family group; (3) at least one interview with each child and any other person living full-time or part-time with the family; (4) at least one visit to the home when all members of the household are present; and (5) at least one contact-by telephone, in person, or by letter-with each adult child of the adoptive applicants no longer living in the home. (b) Prior to establishing any formal relationship, the agency must provide written information to adoptive applicants regarding: (1) the services the agency provides, including counseling and post-adoptive services; (2) fee policies and payment procedures; (3) agency requirements and procedures; (4) legal requirements for adoption, including their right to have independent legal counsel for legal consummation; and (5) adoption registries. sec.720.55.Required Information. (a) The child-placing agency must obtain information from birth parents about their expectations for adoptive placement, if placement is chosen, and the degree and type of involvement, if any, they desire with the adoptive family. (b) The agency must obtain all available information regarding the child being considered for adoption including: (1) health history, social history, educational history, genetic and family history, and other information required by the Texas Family Code, sec.sec.162.005-162.007; (2) history of any previous placements, including date and reason for placement; (3) the child's understanding of adoptive placement; and (4) the child's legal status. (c) The agency must obtain all available information about the adoptive applicants regarding the following: (1) motivation for adoption; (2) health status (physical, mental, and emotional) of all persons living in the home in relation to the family's ability to provide an adoptive home; (3) quality of marital and family relationships in relation to the family's ability to provide an adoptive home; (4) applicants' feelings about their childhood and parents, including any history of abuse or neglect and their resolution of such experience; (5) values, feelings, and practices in regard to child discipline and care; (6) sensitivity to, and feelings about, children who may have been subjected to abuse, neglect, separation from, and loss of their biological family if the applicants are considering options in addition to adoption of a newborn; (7) sensitivity to, and feelings about, birth families of children placed for adoption; expectations about any on-going relationship with the birth family; (8) attitude of the extended family regarding adoption; (9) sensitivity to, and feelings about, different socioeconomic, cultural, and ethnic groups in relation to the family's ability to provide an adoptive home and to maintain the cultural or ethnic identity of a child from a different background; (10) expectations of, and plans for, adoptive children; (11) behavior, background, special needs status, or other characteristics of a potential adoptive child that the family cannot accept; and (12) financial status and ability to support a child, including employment history and insurance coverage. (d) Prior to placing a child in an adoptive home, the agency must document the number, age, and sex, if applicable, of the children for whom the home is approved. sec.720.56.Pre-Placement Requirements. (a) Prior to placement, the child-placing agency must maintain at least quarterly contact with birth parents unless parental rights have been involuntarily terminated. During this contact, agency staff must discuss the following topics with the birth parents: (1) preparation for childbirth, when applicable; (2) relinquishment or waiver of parental rights; (3) termination of parental rights; and (4) counseling in regard to separation, loss, and grief issues. (b) If applicable, the agency must maintain at least quarterly contact with the child being considered for adoptive placement. The contact must include: (1) continued preparation for adoption; and (2) updated information concerning the adoption. (c) Prior to placement, the agency must maintain at least quarterly contact with the adoptive applicants. During this contact, agency staff must provide education and training in regard to: (1) bonding with adoptive children; (2) parenting issues and concerns; and (3) children with special needs, if appropriate. (d) If a child has not been placed with the adoptive applicants within six months of the time the adoptive home study is completed, the adoptive home study must be brought up- to-date within the 30-day period before a child is placed in the home. The written update must include: (1) review and any required updating of each category of information in the adoptive home study; and (2) documentation of at least one additional visit to the home when all household members are present within the last six months. sec.720.57.Adoptive Placement Requirements. (a) Except in the case of children one month old and younger, a child must have at least one visit with the adoptive family prior to placement. (b) Before placing the child into a home, the child-placing agency must have a written agreement with the adoptive parents. A signed copy of this agreement must be given to the adoptive parents and a copy must be placed in the case record. The agreement must specify the following: (1) that the adoptive parents and the agency agree to complete the adoption at a specified time; (2) that the adoptive parents agree to supervision by the agency during the time prior to completion of the adoption; (3) that the adoptive parents must notify the agency before removing the child from Texas prior to the completion of the adoption; (4) that either the adoptive parents or the agency can return the child to the agency at the discretion of either the adoptive parents or the agency before the adoption is completed; and (5) what the fee and schedule of payment are. (c) Written consent for medical care of the child must be given to the adoptive parent at the time of the child's placement in the home. A copy of the signed medical consent form must be filed in the child's record or in the adoptive home record. (d) Before placing a child into a home, the agency must discuss information about the child and his or her birth parents with the adoptive parents. Prior to or at the time of placement, the agency must also provide written information to the adoptive parents that includes all available information on the child and his family, excluding identifying information, if appropriate. (e) Before placing a child into a home, the agency must discuss basic care and safety issues with the adoptive parents, and ensure that the home provides an environment safe for the child or children to be placed. This must include firearm safety, water safety, and basic home health and fire safety. (f) Before placing a child into a home, the agency must give information to prospective adoptive parents about the Texas Department of Protective and Regulatory Services adoption assistance programs, including the non-recurring adoption expenses program. (g) By the time of placement the adoptive parents must be given the following: (1) written authorization to care for the child; and (2) written information if the child is not completely free for adoption at the time of placement. sec.720.58.Pre-Adoption Consummation Activities. (a) During the supervisory period the child-placing agency must: (1) offer counseling services to the adoptive family. These services may be provided through referrals outside the agency. (2) ensure that children's needs are met in the adoptive placement. (3) maintain responsibility for the child until the court has entered the adoption decree. (b) Post-placement supervision must include: (1) For children under the age of two years (with the exception of children with special needs), the agency must have a minimum of five supervisory contacts with the adoptive parents within the first six months of placement. (A) two contacts must be face-to-face, with the entire family; (B) at least one of these contacts must be in the adoptive home; and (C) the contacts specified in subparagraphs (A) and (B) of this paragraph must be documented. (2) For children with special needs and children ages two years or older, the agency must have monthly face-to-face contacts with the adoptive family during the first six months. Two of these contacts must be in the adoptive home, with the entire family and must be documented. (3) After the first six months of placement, the agency must have at least quarterly face-to-face contacts in the adoptive home until the adoption decree is entered. (4) The adoptive placement must be re-evaluated if it has not been completed within one year. (c) During the post-placement period, the agency must document any changes in the adoptive family in health, financial condition, or composition which may affect the child. (d) The agency must make every effort to see that the adoption is consummated as stipulated within the written agreement. (e) If the placement is unsatisfactory, the agency must remove the child from the adoptive home. (f) If a child comes back into agency care, the circumstances necessitating this and the child's needs must be documented in the child's record. sec.720.59.Post-Adoption Services. (a) After the adoption is consummated, the child-placing agency must offer counseling services to the birth parents, the adoptive child, and the adoptive family. These services may be provided through referrals outside the agency. (b) The agency must make diligent efforts to inform birth parents, in writing, about developing genetic conditions, terminal illness, or death of their child when this information comes to the attention of the agency. (c) The agency must make diligent efforts to inform adoptive parents or the adult adoptee, in writing, about developing genetic conditions, terminal illness, or death of a birth parent when this information comes to the attention of the agency. (d) Upon request, the agency must provide an adult adoptee with a de-identified copy of the adoption record. The record must include the county and court of jurisdiction for the adoption. If an adoptee is less than 18 years of age, the request for the information must come from or must include the written consent of the child's adoptive parents or managing conservator. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 5, 1996. TRD-9607918 C. Ed Davis Deputy Commissioner for Legal Services Texas Department of Protective and Regulatory Services Effective date: July 1, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 438-3765 CHAPTER 725.General Licensing Procedures The Texas Department of Protective and Regulatory Services (TDPRS) adopts amendments to sec.sec.725.3044, 725.3045, 725.3047, 725.3049, 725.3050, 725.3056, 725.3065, 725.3068, 725.3069, 725.3071, 725.3075-725.3077, and 725.4013; and new sec.725.3078 in its General Licensing Procedures chapter. The amendments to sec.725.3044, sec.725.3050, sec.725.3056, sec.725.3068, and sec.725.3069 are adopted with changes to the proposed text published in the February 27, 1996, issue of the Texas Register (21 TexReg 1504). The amendments to sec.sec.725.3045, 725.3047, 725.3049, 725.3065, 725.3071, 725.3075-725.3077, and 725.4013; and new sec.725.3078 are adopted without changes to the proposed text and will not be republished. The justification for the amendments and new section is to include maternity homes in the rules regarding agency and institutional licensing procedures and appeals of licensing staff decisions. The amendments and new section will function by ensuring that risks to the health, safety, and welfare of pregnant women served by maternity homes will be reduced. No comments regarding adoption of the amendments and new section were received by TDPRS during the public comment period; however, TDPRS is adopting sec.sec.725.3044, 725.3050, 725.3056, 725.3068, 725.3069 with minor editorial changes for clarification as follows: In sec.725.3044(h), 725.3068, and 725.3069, TDPRS has changed the title of "deputy for licensing" back to "director of licensing" which was the language in the rule before the proposal was published. In sec.725.3050, paragraph (4) is separated to create two paragraphs. The second sentence of the proposed paragraph is numbered paragraph (5). In sec.725.3056(2), language regarding serious illness is reworded for clarification. Proposed paragraph (5) is divided into two paragraphs causing creating of paragraph (6). Paragraph (6), which was proposed with no change is renumbered to (7). The language in new paragraph (7) has not changed and is published in the adoption due only to the renumbering of the paragraph. Proposed paragraph (7) is renumbered to (8). SUBCHAPTER EE.Agency and Institutional Licensing Procedures 40 TAC sec.sec.725.3044, 725.3045, 725.3047, 725.3049, 725.3050, 725. 3056, 725.3065, 725.3068, 725.3069, 725.3071, 725.3075-725.3078 The amendments and new section are adopted under the Human Resources Code, Chapters 40 and 42, which provides the department with the right to adopt rules to implement V.T.C.A., Health and Safety Code, sec.249. The amendments and new section implement the Human Resources Code, Chapters 40 and 42 and Health and Safety Code, sec.249. sec.725.3044.Application. (a) Each governing body planning to operate a facility subject to licensing or certification must complete an application and send it to licensing staff. Facilities subject to licensing must attach a $35 non-refundable application fee plus $35 (or $50 for a child-placing agency or maternity home) provisional license fee to the department's Licensing Fee Schedule and send these to the department. The provisional license fee may be refunded if the department does not issue the provisional license. (b) The requirements do not apply to (1) (No change.) (2) Non-profit 24-hour child care facilities that (A)-(B) (No change.) (3)-(4) (No change.) (c)-(g) (No change.) (h) The applicant may appeal any dispute about the amount of time the department took to decide that an application was complete or to approve or deny an application. To appeal, the applicant must submit a written request within 30 days after the department's time limit expires. The applicant must send the request stating the nature of the dispute to the director of licensing. If the department exceeded the time limit without establishing good cause, the appeal is decided in the applicant's favor. In this case, the department must reimburse the application fee. (i) The requirements regarding an application received after revocation or denial of a license are as follows. (1) If Texas Department of Protective and Regulatory Services (TDPRS) denies an application for a license because of non-compliance with standards or violation of the child care or maternity home licensing law, time limits for an appeal must have ended and the facility must have closed and remained closed before a new application for a license can be accepted. If a facility ceases operation before the end of the time to request an appeal, and if that facility waives in writing the right to request an appeal, licensing staff accept a completed application. If the facility begins operation before the provisional license is issued, licensing staff deny the application. An application fee and provisional license fee must be sent to TDPRS when a completed application is sent to licensing staff. The cost of reimbursing TDPRS for publishing the notice of revocation, as required by the Human Resources Code, Chapter 42, sec.42.077, must be added to the application fee. (2) (No change.) sec.725.3050.License. A facility is eligible for a license providing: (1)-(3) (No change.) (4) The annual license fee of $35 plus $1 for each child the facility is licensed to serve, $100 for a child-placing agency, or $50 plus $2.00 for each client the maternity home is licensed to serve has been paid. (5) An annual fee for a license may be refunded if the licensee pays the fee but the department does not issue the license. sec.725.3056.Denial or Revocation of a License without a Standard-by-standard Evaluation. Licensing staff may deny or revoke a license/certificate without completion of a standard-by-standard evaluation if they determine that a dangerous situation exists or that an incident resulting in one of the following has occurred in a regulated facility as a result of a violation of minimum standards or the law: (1) Death of a child or maternity home client. (2) Serious injury or illness affecting a child or a maternity home client. (3)-(4) (No change.) (5) Presence of a person at the facility that is a violation of standards or causes a serious threat of violation to exist. (6) Presence of a person at the facility when that person's behavior is believed to constitute an actual or potential threat to the children or maternity home clients in care. (7) Refusal by facility personnel to admit licensing staff for inspection of the facility. (8) Violations of standards which threaten serious harm to children or maternity home clients. sec.725.3068.Requesting an Administrative Review. A licensee/applicant/certificate holder may request an administrative review when he disagrees with a decision or action of a licensing representative or a state supervisor. He makes the request to the director of licensing and describes the decision or action in dispute. When the request concerns a decision or action involving a time limit or limits for correction of non- compliance with standards, the licensee/applicant/certificate holder must make the request for administrative review before the end of the time limits. sec.725.3069.Purpose of an Advisory Opinion. An advisory opinion which is acted upon becomes a declaratory order, and is valid for the duration of the applicable minimum standards in effect at the time of the opinion or for a lesser period specified in the opinion. The requestor must make a written request for an advisory opinion to the licensing representative. He must include in the written request a detailed description of the plan or planned changes and must submit the request in triplicate. The requestor must include in the request the specific questions the advisory opinion is to address. The director of licensing only issues advisory opinions based on requests for answers to specific questions related to cited minimum standards. sec.725.3071.Reasons for Probation or Evaluation. A facility may be placed on probation or evaluation if it has: (1) Failed on more than one occasion to comply with standards, but the health, safety, and well-being of children in care or maternity home clients are not in immediate danger; (2) (No change.) (3) Committed a single, serious violation of the standards if there is not a situation which continues to immediately endanger children or maternity home clients. sec.725.3078.Change of Administrator or Director. A new maternity home administrator or director must submit a personal history statement and a $20 fee to the Texas Department of Protective and Regulatory Services. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 5, 1996. TRD-9607916 C. Ed Davis Deputy Commissioner for Legal Services Texas Department of Protective and Regulatory Services Effective date: July 1, 1996 Proposal publication date: February 27, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER OO.Appeals of Licensing Staff Decisions 40 TAC sec.725.4013 The amendment is adopted under the Human Resources Code, Chapters 40 and 42, and Health and Safety Code sec.249, which provides the department with the right to adopt rules to implement V.T.C.A., Health and Safety Code, sec.249. The amendment implements the Human Resources Code, Chapters 40 and 42 and Health and Safety Code sec.249. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 5, 1996. TRD-9607917 C. Ed Davis Deputy Commissioner for Legal Services Texas Department of Protective and Regulatory Services Effective date: July 1, 1996 Proposal publication date: February 27, 1996 For further information, please call: (512) 438-3765 CHAPTER 727.Licensing of Maternity Facilities The Texas Department of Protective and Regulatory Services (TDPRS) adopts the repeal of sec.sec.727.101-727.111, 727.201, 727.301, 727.302, 727.401, 727.402; 727.501-727.514, 727.601, 727.602, 727.701-727.707, 727.801- 727.806, 727.901-727.903, 727.1001-727.1006, and new sec.sec.727.101, 727.103, 727.105, 727.107, 727.109, 727.111, 727.201, 727.203, 727.205, 727.207, 727.301, 727.303, 727.305, 727.401, 727.403, 727.405, 727.407, 727.409, and 727.411 in its Licensing of Maternity Facilities chapter. New sec.sec.727.101, 727.103, 727.105, 727.107, 727.109, 727.111, 727.201, 727.203, 727.205, 727.207, 727.301, 727.303, 727.305, 727.403, 727.405, and 727.411 are adopted with changes to the proposed text published in the February 27, 1996, issue of the Texas Register (21 TexReg 1507). The repeal of sec.sec.727.101-727.111, 727.201, 727.301, 727.302, 727.401, 727.402; 727.501-727.514, 727.601, 727.602, 727.701-727.707, 727.801-727.806, 727.901-727.903, 727.1001-727.1006 and new sec.sec.727.401, 727.407 and 727.409 are adopted without changes and will not be republished. The justification for the repeals and new sections is to establish the minimum requirements for issuance and maintenance of a maternity home license. The repeals and new sections will function by ensuring that risks to the health, safety, and welfare of pregnant women served by maternity homes will be reduced. TDPRS received five sets of comments regarding adoption of the repeals and new sections. The comments were received from Residential Child Care Licensing staff, current and potential maternity homes, and the Consortium of Texas Certified Nurse-Midwives. A summary of the comments and TDPRS's responses follow: Comment: One comment questions whether the requirement for a fee policy means that the maternity home may charge birth mothers or pass through fees to adoptive families. Response: TDPRS believes that the "guidelines" as described in sec.727.107(a)(3) provide specifications about maternity home fee policy. Comment: A commenter stated that the standard in sec.727.111 regarding serious incident reports, is not clearly written. Response: TDPRS agrees and is adopting the rule with changes to make clear that facilities are required to report any incidents of abusive treatment, including alleged abuse, as well as abusive activity among clients. Comment: One comment suggests adding a requirement in sec.727.203 for three references to an individual's personnel file. Response: TDPRS believes that the general personal requirements in sec.727.203 are correct as proposed. Personal references have not proved useful in the regulation of other types of facilities and are not now required in personnel records for other types of facilities. A maternity home may choose to require references for prospective employees as part of its own hiring policies and practices. Comment: One comment suggests that in sec.727.205, an administrator be a full- time employee. Response: TDPRS believes the rule is accurate as proposed. Requiring the administrator to be full-time does not appear to be a necessary minimum standard. Information from previous regulatory agencies indicates few problems and no serious incidents that would indicate a pressing need for a full-time administrator. In this section, TDPRS has made editorial clarifications by changing the word "home" to "facility" in subsection (a)(1) and (b)(2). In subsection (c)(2)-(4) the term "staff person" is changed to "staff." Comment: One comment, regarding sec.727.207, questions if 15 clock hours of annual training include first aid and CPR updates or if the 15 hours of annual training is in addition to first aid and CPR. Response: TDPRS has included in sec.727.207 language that clarifies how first aid and CPR training is counted in relation to annual training requirements. TDPRS has made a minor editorial change in subsection (a) changing the term "staff person's" to "staff's." Comment: One comment regarding sec.727.303(d) and (g) suggests that the facility not be required to give a copy of the service plan and service plan reviews to the client. Response: TDPRS has rewritten the rule to give a maternity home the option of providing a client with a summary, rather than a copy, of the service plan and service plan reviews. A full and complete service plan might well contain information that a client or her family is not ready or able to handle. Requiring the facility to provide that kind of information could interfere with the client's ability to benefit from the program or could lead to the facility keeping critical information out of the service plan. Comment: One comment suggests adding requirements for medication storage in sec.727.405. Response: TDPRS believes that the rule as proposed provides sufficient requirements for medication storage. Medications in a maternity home are not usually stored centrally. Each client handles her own medications. Maternity home clients are not "in care" in the same sense as patients, clients, or residents in other types of facilities. Comment: General comments were received requesting replacement of the term "medical care" with the term "health care" and the term "physician" with the term "health care provider." Response: TDPRS is adopting the rules with changes. The term "health care" is substituted for "medical care" and "health care provider" for "physician" throughout the standards. "Health care," with its broader definition of attention to the physical, emotional, and social well being of the individual better reflects the needs of a woman in a maternity home than the term "medical care" which connotates a focus on curing a disease. Use of the term "health care provider" recognizes that there are other qualified providers such as certified nurse-midwives who may be more accessible and acceptable to women in maternity home settings. Comment: One comment suggests removal of the requirements for information on the potential client's history (medical, education, social, and psychological) and description of special needs from the admission assessment requirements. Response: TDPRS has determined that all the proposed parts of the admission assessment need to be retained. Sufficient information must be available to the maternity home so that an informed decision about the maternity home's ability to meet the client's needs can be made. TDPRS is adopting the rules with the following minor editorial changes. For clarification, TDPRS is changing the references to "home" in sec.727.101(3) to "facility" and is adding "at least five working days" to indicate when notification must be made prior to a change in the legal basis for operation. Also in sec.72.101(4), TDPRS is replacing the phrase "prior to that change taking place" to "at least five working days before that change is made." References to licensing division are deleted in this section and in various other proposed sections. In sec.727.103, TDPRS is adding the word "maternity" to clarify the type of home mentioned in the section. Also in subsection (c), the words "its assigned" responsibilities is replaced with responsibilities "assigned in the maternity home's policies." In sec.727.109(1), the word "current" which describes policies, is removed; in sec.727.109(2) the word "facility" is substituted for "home" to describe the services; and the word "maternity" is added to describe "home." In sec.727.109(3) the word "current" is removed and the words "of the most recent version" is added to clarify which copies to maintain. In sec.727.107(6) the words "at least five working days before" is substituted for "prior to" regarding reporting timeframes. In sec.272.111, "suicide attempts" is clarified by adding the words "by a client." In sec.727.111(2)(B) the words are rearranged for clarification. Subparagraph (D) is added to include serious illness of a client to the types of serious incidents. Subparagraph (D) was renumbered to (E) and the words rearranged for clarity. In paragraph (3), the word "current" was deleted and in subparagraph (C) the words "maternity home" were added to designate which staff must follow procedures. In subsection (6), the words "living unit" were substituted with "part of the facility in which clients reside." In section sec.727.201, TDPRS has deleted the word "current" that describes the organizational chart. In section sec.727.203(f) the word "all" is added to describe which staff must be tested and deleted the word "any" which describes the family members to be tested. In sec.727.301(a)(1), the word "current," which describes written admission, is deleted. In subsection (a)(2) and (6)(A) and (C), (7), and (8) the word "maternity" is added to clarify type of home. In paragraph (5), the word "including" is added before level of supervision. In sec.727.305(c), TDPRS has added the words "upon discharge" to indicate when a maternity home must inform clients of record maintenance procedures. In sec.727.403, the word "maternity" is added before the word home to specify type of home and "maternity home" is added to indicate type of staff. In sec.727.411(5), the words "from the date of discharge" are added to clarify how long records are retained. SUBCHAPTER A.Application Procedures 40 TAC sec.sec.727.101-725.111 The repeals are adopted under the Human Resources Code, Chapters 40 and 42, and Health and Safety Code sec.249, which provides the department with the right to adopt rules to implement V.T.C.A., Health and Safety Code sec.249. The repeals implement the Human Resources Code, Chapters 40 and 42 and Health and Safety Code sec.249. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 5, 1996. TRD-9607920 C. Ed Davis Deputy Commissioner for Legal Services Texas Department of Protective and Regulatory Services Effective date: July 1, 1996 Proposal publication date: February 27, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER A.Structure of a Maternity Home 40 TAC sec.sec.727.101, 727.103, 727.105, 727.107, 727.109, 727.111 The new sections are adopted under the Human Resources Code, Chapters 40 and 42, and Health and Safety Code sec.249, which provides the department with the right to adopt rules to implement V.T.C.A., Health and Safety Code sec.249. The new sections implement the Human Resources Code, Chapters 40 and 42 and Health and Safety Code sec.249. sec.727.101.Legal Basis for Operation. The maternity home must (1) be legally established to operate within Texas and comply with all applicable statutes; (2) along with the application for a license, submit documentation of the legal basis for operation to the Texas Department of Protective and Regulatory Services (TDPRS); (3) notify TDPRS of any planned change in the facility's legal basis for operation at least five working days before that change is made; (4) report any planned change impacting the conditions of the license to TDPRS at least five working days before that change is made; and (5) be licensed as a child-placing agency before engaging in any child-placing activity. sec.727.103.Governing Body of the Maternity Home. (a) The maternity home must (1) have a governing body that is responsible for, and has authority over the maternity home's policies and activities; (2) submit a written copy of the names, addresses, and titles of the officers or executive committee of the governing body with the application for a license; (3) submit written notice of any change in the composition of the governing body to the Texas Department of Protective and Regulatory Services (TDPRS) within ten working days of such change; and (4) inform TDPRS of any change in the information about governing body officers or executive committee members within ten working days of learning about such change. (b) The maternity home's policies must clearly state the responsibilities assigned to the governing body. (c) The governing body of the maternity home must carry out the responsibilities assigned in the maternity home's policies. sec.727.105.General Administration. The maternity home must (1) allow the Texas Department of Protective and Regulatory Services (TDPRS) to visit and inspect the facility at all times; (2) make its records available to and open for TDPRS to review; (3) display the license at the facility; (4) observe the conditions of the license; (5) not offer other types of care in the facility; and (6) obtain the written informed consent of a client and the parents or managing conservator of a minor client before involving a client in any fund raising or publicity for the facility. sec.727.107.Fiscal Accountability. (a) General fiscal requirements. The maternity home must (1) be established and maintained on a sound fiscal basis; (2) maintain complete financial records; (3) have a fee policy that clearly describes what fees are charged and what services are covered by the fees; and (4) not accept any payment for adoption referrals. (b) Fiscal requirements for new maternity homes. New maternity homes must (1) submit a 12-month budget to the Texas Department of Protective and Regulatory Services when the signed application is submitted; (2) have reserve funds or documentation of available credit at least equal to operating costs for the first three months of operation; and (3) have predictable funds sufficient for the first year of operation. sec.727.109.Maternity Home Policies. The maternity home must (1) have clearly stated, governing body approved policies that at least meet minimum standards and are fully implemented. (2) have policies that include a statement that describes the facility's services. The statement must describe who the maternity home will serve and what services the maternity home will provide. (3) maintain copies of the most recent version of allpolicies. Policies must indicate governing body approval and effective date. (4) have policies available for review upon request by the Texas Department of Protective and Regulatory Services (TDPRS) and maternity home clients. (5) operate according to its written policies. (6) report any changes in the written policies to TDPRS at least five working days before implementing the change. sec.727.111.Serious Incident Reports. The maternity home must (1) complete written reports for serious incidents involving staff or clients within 24 hours of learning about the occurrence. Each report must include the date and time of the occurrence, the staff or clients involved, the nature of the incident, and the surrounding circumstances. (2) report the following types of serious incidents to the Texas Department of Protective and Regulatory Services (TDPRS) and to a minor client's parent or managing conservator by the next workday: (A) a suicide attempt by a client; (B) abusive treatment, including alleged abuse, and abusive activity among clients; (C) incidents that critically injure or permanently disable a client; (D) serious illness of a client; and (E) death of a client. (3) have written policies and procedures to follow when a client is absent without permission. These must include (A) time frames for determining when a client is absent without permission; (B) actions that maternity home staff must take to locate the client; and (C) procedures, including time frames, that maternity home staff must follow to notify the parents or managing conservator of a minor client and the appropriate law enforcement agency. (4) report when a minor client is not found. Absence without permission must be reported to the client's parents or managing conservator and to the appropriate law enforcement agency. (5) document if a minor client is absent without permission, the circumstances surrounding the absence, efforts to locate the client, and notification of the client's parents or managing conservator and the appropriate law enforcement agency. If the parent or managing conservator cannot be located, attempts to report the client's absence must be documented. (6) report to TDPRS, by the next workday, disasters or emergencies, such as fires or severe weather, that requires any part of the facility in which clients reside to close. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 5, 1996. TRD-9607930 C. Ed Davis Deputy Commissioner for Legal Services Texas Department of Protective and Regulatory Services Effective date: July 1, 1996 Proposal publication date: February 27, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER B.Standards for Licensure 40 TAC sec.727.201 The repeal is adopted under the Human Resources Code, Chapters 40 and 42, and Health and Safety Code sec.249, which provides the department with the right to adopt rules to implement V.T.C.A., Health and Safety Code sec.249. The repeal implements the Human Resources Code, Chapters 40 and 42 and Health and Safety Code sec.249. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 5, 1996. TRD-9607921 C. Ed Davis Deputy Commissioner for Legal Services Texas Department of Protective and Regulatory Services Effective date: July 1, 1996 Proposal publication date: February 27, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER B.Maternity Home Personnel 40 TAC sec.sec.727.201, 727.203, 727.205, 727.207 The new sections are adopted under the Human Resources Code, Chapters 40 and 42, and Health and Safety Code sec.249, which provides the department with the right to adopt rules to implement V.T.C.A., Health and Safety Code sec.249. The new sections implement the Human Resources Code, Chapters 40 and 42 and Health and Safety Code sec.249. sec.727.201.Personnel Policies. The maternity home must (1) have an organization chart showing the administrative structure and staffing, including lines of authority; (2) have a written job description for each employee; (3) have volunteer policies describing the way volunteers will be used, if the home uses volunteers; and (4) have written policies covering volunteer qualifications and orientation and training programs if volunteers have contact with clients. sec.727.203.General Personnel Requirements. (a) The maternity home must reassign or remove from direct contact with clients any employee or volunteer against whom (1) an indictment is returned alleging commission of any felony classified as an offense against the person or family, or of public indecency, or of violation of the Texas Controlled Substances Act; or (2) an indictment is returned alleging commission of any misdemeanor classified as an offense against the person or family, or of public indecency; or (3) an official criminal complaint is accepted by a district or county attorney alleging commission of a misdemeanor classified as an offense against the person or family, or of public indecency. (b) Reassignment or removal of any employee or volunteer from direct contact with clients must remain in effect pending resolution of the charges as specified in subsection (a)(1)-(3) of this section. (c) No one may serve as a staff or volunteer having contact with clients who has been convicted of any felony classified as an offense against the person or family, or of public indecency, or of violation of the Texas Controlled Substances Act, or of any misdemeanor classified as an offense against the person or family or of public indecency, unless the Texas Department of Protective and Regulatory Services (TDPRS) has ruled that proof of rehabilitation has been established. (d) The maternity home must report any occurrences as stated in subsections (a)- (c) of this section to TDPRS by the end of the first workday after learning of the occurrence. (e) Persons whose behavior or health status present a danger to clients must not be allowed at the maternity home. (f) Before having contact with clients, all staff, volunteers and family members or other persons residing at the maternity home must be tested for tuberculosis according to the recommendations of the Texas Department of Health or local health authorities. (g) The maternity home must have a personnel file for each employee and volunteer whose work relates to maternity home services. Each file must contain (1) the date of employment; (2) documentation that the person meets the qualifications for the position; (3) tuberculosis test reports, if required, for persons having contact with clients; (4) criminal background check reports; (5) documentation that the person meets training requirements; and (6) the date and the reason for separation, if applicable. sec.727.205.Personnel Qualifications and Responsibilities. (a) Administrative responsibilities. (1) The maternity home must have an administrator who is responsible for (A) the overall administrative responsibility for the facility; (B) managing the maternity home according to the policies adopted by the governing body; and (C) ensuring that the maternity home's operation complies with minimum standards specified in this chapter. (2) The maternity home administrator must meet one of the following qualifications: (A) a master's or higher degree and at least one year of experience in human services' management, supervision, or administration; (B) a bachelor's degree and at least two years of experience in management, supervision, or administration, one year of which must have been in human services; (C) an associate's degree and at least four years of experience in management, supervision, or administration, one year of which must have been in human services; or (D) a high school diploma or general educational development (GED) certificate and at least six years of experience in management, supervision, or administration, one year of which must have been in human services. (b) Service program responsibilities. (1) The maternity home must employ a person who is responsible for the overall services provided by the facility. This person must (A) approve maternity home admissions; (B) develop and update service plans for maternity home clients or approve service plans developed or updated by less qualified staff; and (C) provide general program oversight. (2) The person responsible for maternity home services must have at least a bachelor's degree in a human services field and two years of experience in human services or a bachelor's degree in any field and at least four years of supervised maternity home experience. (c) Other maternity home staff. (1) The maternity home must employ sufficient qualified staff to protect the health, safety, and well-being of clients and provide maternity home services. (2) Staff who provide casework services, including admissions assessment, counseling, placement planning, and discharge planning, must have at least a bachelor's degree and direct supervision from a person who meets the requirements specified in subsection (b)(2) of this section. (3) Other staff working with clients must have at least a high school diploma or GED certificate. (4) At least one staff must be immediately accessible at the maternity home at all times when clients are present. At least one other staff must be immediately available in case of emergency. (5) The maternity home must ensure that staff and volunteers are supervised (A) to protect clients' health, safety and well-being; and (B) to ensure that assigned duties are performed adequately. sec.727.207.Training Requirements. (a) The maternity home must have a written training plan or program for all staff. The plan must include stated time frames for assessment of each staff's training needs, training content, and number of training hours required. (b) New staff who will work with clients must receive an orientation to the facility's policies and services. (c) Client care staff must successfully complete training from a certified instructor in cardiopulmonary resuscitation (CPR) and first aid before assuming their responsibilities. CPR and first aid training must be updated as required to maintain certification. CPR and first aid training must meet criteria established by the Texas Department of Protective and Regulatory Services (TDPRS). (d) The maternity home administrator, the person responsible for the service program, and any staff who provide casework services, including admissions assessment, counseling, placement planning, and discharge planning, must obtain at least 20 clock hours of job-related training annually. (e) Maternity home staff working with clients must receive at least 15 hours of training each year related to maternity home services. Annual training hour requirements are in addition to initial first aid and CPR training. First aid and CPR updates may be included in the annual training requirements. (f) Persons who hold related professional licenses or credentials that require continuing education will be considered as meeting the training requirements by meeting the requirements to maintain their professional license or credential. (g) At least 75% of the required annual training must consist of course work from an accredited educational institution, workshops, seminars, or other direct training provided by qualified agencies, organizations and individuals. In- service training and self-instruction programs may be counted in the formal training component if the training includes stated learning objectives, curriculum and learning activities, and an evaluation program. Training must be documented, including date, subject, number of hours, and training provider. (h) When maternity home staff complete training in excess of the minimum requirements, up to one-half of the following year's annual training requirement may be carried over from the previous year. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 5, 1996. TRD-9607934 C. Ed Davis Deputy Commissioner for Legal Services Texas Department of Protective and Regulatory Services Effective date: July 1, 1996 Proposal publication date: February 27, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER C.Construction Standards for Maternity Facilities 40 TAC sec.sec.727.301, sec.727.302 The repeals are adopted under the Human Resources Code, Chapters 40 and 42, and Health and Safety Code sec.249, which provides the department with the right to adopt rules to implement V.T.C.A., Health and Safety Code sec.249. The repeals implement the Human Resources Code, Chapters 40 and 42 and Health and Safety Code sec.249. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 5, 1996. TRD-9607922 C. Ed Davis Deputy Commissioner for Legal Services Texas Department of Protective and Regulatory Services Effective date: July 1, 1996 Proposal publication date: February 27, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER C.Service Management 40 TAC sec.sec.727.301, 727.303, 727.305 The new sections are adopted under the Human Resources Code, Chapters 40 and 42, and Health and Safety Code sec.249, which provides the department with the right to adopt rules to implement V.T.C.A., Health and Safety Code sec.249. The new sections implement the Human Resources Code, Chapters 40 and 42 and Health and Safety Code sec.249. sec.727.301.Admission. (a) Admission Policies. (1) The maternity home must have written admission policies and criteria describing the age and type of client served. (2) The maternity home may only admit clients who meet the admission policies and criteria and for whom the maternity home has an operational program. (3) A maternity home whose policies permit the admission of a client whose behavior or history indicates that she may be a danger to herself or others must arrange for the client to be evaluated by a qualified professional. The evaluation may be done by (A) a psychiatrist; (B) a psychologist; (C) a licensed Master Social Worker, Advanced Clinical Practitioner; (D) an obstetrician/gynecologist; or (E) a licensed professional counselor. (4) The evaluation of a client who may be a danger to self or others must be done within 72 hours following admission. The evaluation must be documented in the client's record and include: (A) an assessment of the potential danger to self or others; (B) an assessment of the client's need for care, treatment, and supervision; and (C) recommendations for care, treatment, supervision, and further evaluation, if any, if the client is admitted to the maternity home. (5) A maternity home that admits a client who may be a danger to self or others must document precautions including level of supervision taken until the professional evaluation is performed and implemented. (6) A maternity home that admits a client who may be a danger to self or others must (A) evaluate the client's needs, as identified in the professional assessment, in relation to the maternity home's admission policy and criteria; (B) evaluate the potential danger to the client or others, as identified in the professional assessment, in relation to the safeguards and services the maternity home can provide; and (C) arrange for the client's discharge as soon as possible if the evaluation indicates that the maternity home's program cannot meet her needs or that the maternity home cannot provide necessary safeguards. (7) If the maternity home decides to provide care for a client who may be a danger to self or others, the maternity home must include the professional assessment and recommendations in the client's service plan and ensure that recommendations are followed. (8) Maternity homes that have admission policies, rules for group living, or other requirements that may make the maternity home an inappropriate choice for a prospective client must provide the prospective client with a list of licensed maternity homes so that she can locate a facility that better meets her needs. (b) Admission procedures. (1) The maternity home must complete an admission assessment, including pregnancy testing, for each client within five working days of admission to determine that the program will be able to meet the client's needs. (2) The admission assessment must be in writing and must include information on each of the following: (A) the circumstances that led to the client's referral; (B) the client's plan for her baby; (C) the client's history including (i) health history information and information about the pregnancy; (ii) educational background and records that may be needed to enroll the client in school or a general educational development program; (iii) social history with a description of the family situation and relationships, previous placements, and work history; and (iv) psychological history (if applicable and available) including any results of testing, evaluation, or assessment; (D) a description of any special needs (physical, emotional, or intellectual) the client might have; (E) the client's expectations of maternity home placement; and (F) the level of parent or family involvement with the client during her stay at the maternity home. (3) Clients must have a health examination by a health care provider within 30 days before admission or an examination must be arranged or scheduled within two work days after admission. The arrangement or scheduling must include an assessment by a health care provider to ensure that the client is not in immediate need of medical treatment. (4) Clients must be tested for tuberculosis according to the recommendations of their health care provider. (5) A written placement agreement between the maternity home and the parents or managing conservator of a minor client must be completed at or before placement. A copy of the placement agreement must be in the client's record. The placement agreement must include: (A) authorization for the minor client to reside at the maternity home; and (B) a medical consent form signed by a person authorized to give consent by the Texas Family Code. (6) If a minor client has been living independent of her parents or her parents refuse to sign the placement agreement, the minor client may admit herself to the maternity home. This must be documented in the client's record. (7) Maternity homes must inform clients and the parents or managing conservators of minor clients, in writing, at or before admission of: (A) rules and guidelines for group living that maternity home clients will be expected to follow, including visits, gifts, mail, and telephone calls; (B) the type and frequency of reports the maternity home will make to parents or managing conservators of minor clients; (C) the maternity home's religious policy or program, if any; and (D) the maternity home's fee policy. sec.727.303.Service plan. (a) Within 15 working days of admission, the maternity home must develop a service plan with the client. (b) The service plan must include: (1) the client's individual needs in addition to basic needs for food, clothing, shelter, and routine health care related to the pregnancy, delivery, and postpartum period; (2) a specific description of how the maternity home will address any needs of the client in addition to basic needs; and (3) a specific description of what the maternity home expects of the client in terms of meeting the service plan. (c) The service plans for minor clients must address the level of supervision the maternity home will provide for the client. (d) The maternity home must give a copy or summary of the service plan to the client and the parents or managing conservator of a minor client. (e) The maternity home must carry out the service plan. (f) The maternity home must develop a policy for reviewing plans of service. The policy must state how frequently plans will be reviewed. (g) The maternity home must review the service plan at least as frequently as stated in the home's policy with the client. The review must be in writing and show what has been accomplished in meeting the client's needs, any change in the client's needs, and any change in how the client's needs will be met. The maternity home must give a copy or summary of the service plan review to the client and to the parents or managing conservator of a minor clients. sec.727.305.Discharge. (a) The maternity home must involve the client and the parents or the managing conservator of a minor client in discharge planning. (b) The date and circumstances of the client's discharge must be documented in the client's record. (c) Upon discharge, the maternity home must inform clients of how long and where client records will be maintained. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 5, 1996. TRD-9607935 C. Ed Davis Deputy Commissioner for Legal Services Texas Department of Protective and Regulatory Services Effective date: July 1, 1996 Proposal publication date: February 27, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER D.General Requirements for All Facilities Facility Construction 40 TAC sec.sec.727.401, sec.727.402 The repeals are adopted under the Human Resources Code, Chapters 40 and 42, and Health and Safety Code sec.249, which provides the department with the right to adopt rules to implement V.T.C.A., Health and Safety Code sec.249. The repeals implement the Human Resources Code, Chapters 40 and 42 and Health and Safety Code sec.249. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 5, 1996. TRD-9607928 C. Ed Davis Deputy Commissioner for Legal Services Texas Department of Protective and Regulatory Services Effective date: July 1, 1996 Proposal publication date: February 27, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER D.Client Services 40 TAC sec.sec.727.401, 727.403, 727.405, 727.407, 727.409, 727.411 The new sections are adopted under the Human Resources Code, Chapters 40 and 42, and Health and Safety Code sec.249, which provides the department with the right to adopt rules to implement V.T.C.A., Health and Safety Code sec.249. The new sections implement the Human Resources Code, Chapters 40 and 42 and Health and Safety Code sec.249. sec.727.403.Housing. (a) Health and safety. The maternity home must (1) construct, maintain, clean, and repair buildings so that there are no hazards to the health and safety of clients. (2) establish and maintain grounds so that there are no hazards to the health and safety of clients. (3) have approved fire, health, and safety inspections. The maternity home must submit approved inspection reports with the application for the license. The maternity home must obtain approved inspections annually. Inspection reports must be kept on file at the maternity home. The maternity home must (A) have an annual fire inspection with a written report by a local or state fire marshal. The maternity home must be in compliance with corrections, conditions, or restrictions specified in the report. (B) have an annual sanitation inspection with a written report by a local or state sanitation official. The maternity home must be in compliance with any corrections, restrictions, or conditions stated in the report. (C) have an annual gas-pipe inspection, if gas is used. The inspection must be documented. (D) have an inspection by an inspector certified by the Liquefied Petroleum Gas Division of the Railroad Commission, if the maternity home has a liquid petroleum gas system. (4) have written plans and procedures for assuring the health and safety of clients in case of a disaster or emergency, such as fire or severe weather. Maternity home staff must know these procedures and a copy must be available at the maternity home for Texas Department of Protective and Regulatory Services to review. (5) have first aid supplies readily available to maternity home staff, including a sterile emergency delivery pack, in designated locations. (b) Living space. Maternity homes must (1) provide adequate living space, appropriate furnishings, and bathroom facilities for clients. (2) have bedrooms with at least 75 square feet of floor space per occupant with a maximum of four clients per bedroom. Bedrooms must have at least one window with outside exposure. (3) provide each client with her own bed and provisions for personal storage space. (4) have at least 40 square feet per client of indoor activity space exclusive of halls, kitchen, bathrooms, and any other space not regularly available to clients. Where bedrooms exceed the minimum square footage requirements, the difference may be counted towards indoor activity space. (5) have bathrooms located convenient to client bedrooms. (6) have at least one lavatory and commode for each six clients and one tub or shower for each 10 clients. (7) have food preparation and dining areas appropriate to the food service program. sec.727.405.Health Care. The maternity home must (1) have written policies and procedures for providing routine health care relating to pregnancy and delivery and for emergency diagnosis and treatment of other health and dental problems. (2) ensure that clients have access to prenatal health care, delivery and immediate postpartum health care, and postpartum convalescent health care for the period post delivery and prior to discharge from the maternity home. (3) ensure that each client is informed of the need for a postpartum examination, unless the examination is provided before her discharge from the facility. (4) provide for other emergency health care diagnosis and treatment as needed, when such is ordered by the client's primary health care provider. (5) ensure that maternity home staff do not provide any medication or treatment to a client except on written orders of a licensed health care provider. If, in an emergency, instructions are given verbally, the health care provider must write and sign orders within 24 hours. (6) ensure that a minor client's health care provider has authorized, in writing, a self-medication program or that maternity home staff administer the minor client's medication. sec.727.411.Client Records. The maternity home must ensure that (1) records for each client are kept accurate and current. (2) client records are locked and kept in a safe location. (3) client records are not released to any agency, organization, or individual without the written consent of the client. (4) client records and information are kept confidential. All maternity home staff and consulting, contracting, and volunteer professionals and others with access to information about the client must be informed, in writing, of their responsibility to maintain client confidentiality. (5) client records are retained permanently when the client chooses to relinquish her child for adoption. The maternity home has the option of transferring the record to the licensed child-placing agency that handled the adoption. Records for other clients must be retained for a minimum of two years from the date of discharge. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 5, 1996. TRD-9607936 C. Ed Davis Deputy Commissioner for Legal Services Texas Department of Protective and Regulatory Services Effective date: July 1, 1996 Proposal publication date: February 27, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER E.Medication Aides 40 TAC sec.sec.727.501-727.514 The repeals are adopted under the Human Resources Code, Chapters 40 and 42, and Health and Safety Code sec.249, which provides the department with the right to adopt rules to implement V.T.C.A., Health and Safety Code sec.249. The repeals implement the Human Resources Code, Chapters 40 and 42 and Health and Safety Code sec.249. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 5, 1996. TRD-9607927 C. Ed Davis Deputy Commissioner for Legal Services Texas Department of Protective and Regulatory Services Effective date: July 1, 1996 Proposal publication date: February 27, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER F.Inspections, Surveys, and Visits 40 TAC sec.727.601, sec.727.602 The repeals are adopted under the Human Resources Code, Chapters 40 and 42, and Health and Safety Code sec.249, which provides the department with the right to adopt rules to implement V.T.C.A., Health and Safety Code sec.249. The repeals implement the Human Resources Code, Chapters 40 and 42 and Health and Safety Code sec.249. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 5, 1996. TRD-9607926 C. Ed Davis Deputy Commissioner for Legal Services Texas Department of Protective and Regulatory Services Effective date: July 1, 1996 Proposal publication date: February 27, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER G.Abuse, Neglect, and Exploitation; Complaint and Incident Reports and Investigations 40 TAC sec.sec.727.701-727.707 The repeals are adopted under the Human Resources Code, Chapters 40 and 42, and Health and Safety Code sec.249, which provides the department with the right to adopt rules to implement V.T.C.A., Health and Safety Code sec.249. The repeals implement the Human Resources Code, Chapters 40 and 42 and Health and Safety Code sec.249. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 5, 1996. TRD-9607925 C. Ed Davis Deputy Commissioner for Legal Services Texas Department of Protective and Regulatory Services Effective date: July 1, 1996 Proposal publication date: February 27, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER H.Enforcement 40 TAC sec.sec.727.801-727.806 The repeals are adopted under the Human Resources Code, Chapters 40 and 42, and Health and Safety Code sec.249, which provides the department with the right to adopt rules to implement V.T.C.A., Health and Safety Code sec.249. The repeals implement the Human Resources Code, Chapters 40 and 42 and Health and Safety Code sec.249. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 5, 1996. TRD-9607924 C. Ed Davis Deputy Commissioner for Legal Services Texas Department of Protective and Regulatory Services Effective date: July 1, 1996 Proposal publication date: February 27, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER I.Trustees for Facilities 40 TAC sec.sec.727.901-727.903 The repeals are adopted under the Human Resources Code, Chapters 40 and 42, and Health and Safety Code sec.249, which provides the department with the right to adopt rules to implement V.T.C.A., Health and Safety Code sec.249. The repeals implement the Human Resources Code, Chapters 40 and 42 and Health and Safety Code sec.249. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 5, 1996. TRD-9607923 C. Ed Davis Deputy Commissioner for Legal Services Texas Department of Protective and Regulatory Services Effective date: July 1, 1996 Proposal publication date: February 27, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER J.Provisions Applicable to Facilities Generally 40 TAC sec.sec.727.1001-727.1006 The repeals are adopted under the Human Resources Code, Chapters 40 and 42, and Health and Safety Code sec.249, which provides the department with the right to adopt rules to implement V.T.C.A., Health and Safety Code sec.249. The repeals implement the Human Resources Code, Chapters 40 and 42 and Health and Safety Code sec.249. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 5, 1996. TRD-9607929 C. Ed Davis Deputy Commissioner for Legal Services Texas Department of Protective and Regulatory Services Effective date: July 1, 1996 Proposal publication date: February 27, 1996 For further information, please call: (512) 438-3765 PART XX. Texas Workforce Commission CHAPTER 809. Child Care and Development (Editor's Note: Effective June 1, 1996, the Job Opportunities and Basic Skills Training (JOBS), Food Stamp Employment and Training (E&T), and Child Care and Development programs operated by the Texas Department of Human Services (TDHS) will transfer to the Texas Workforce Commission (TWC). House Bill 1863, 74th Regular Legislative Session, created a new state agency, the Texas Workforce Commission. The TWC assumes authority and jurisdiction of these three programs from TDHS.) Pursuant to 1 TAC sec.91.23(e) the specified TDHS rules located in 40 TAC Chapters 10 and 72 are being transferred to 40 TAC Chapters 809 and 811. A table which lists the old and new section numbers is being published in this issue of the Texas Register in the Tables and Graphics Section. Figure: 40 TAC Chapter 809 This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 24, 1996. CHAPTER 811. Job Opportunities and Basic Skills (Editor's Note: Effective June 1, 1996, the Job Opportunities and Basic Skills Training (JOBS), Food Stamp Employment and Training (E&T), and Child Care and Development programs operated by the Texas Department of Human Services (TDHS) will transfer to the Texas Workforce Commission (TWC). House Bill 1863, 74th Regular Legislative Session, created a new state agency, the Texas Workforce Commission. The TWC assumes authority and jurisdiction of these three programs from TDHS. Pursuant to 1 TAC sec.91.23(e) the specified TDHS rules located in 40 TAC Chapters 10 and 72 are being transferred to 40 TAC Chapters 809 and 811. A table which lists the old and new section numbers is being published in this issue of the Texas Register in the Tables and Graphics Section. Figure: 40 TAC Chapter 811(a) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 24, 1996 CHAPTER 815. Unemployment Insurance (Editor's Note: Effective June 1, 1996, the Texas Workforce Commission (TWC) will replace the Texas Employment Commission (TEC). House Bill 1863, 74th Regular Legislative Session, created a new state agency, the Texas Workforce Commission. The TWC assumes the entire authority and jurisdiction of all Texas Employment Commission programs and various job training programs administered by other state agencies.) Pursuant to 1 TAC sec.91.23(e) the TEC rules located in 40 TAC Chapter 301 are being transferred to 40 TAC Chapter 815. A table which lists the old and new section numbers is being published in this issue of the Texas Register in the Tables and Graphics Section. Figure: 40 TAC Chapter 815 This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 17, 1996 CHAPTER 817. Child Labor (Editor's Note: Effective June 1, 1996, the Texas Workforce Commission (TWC) will replace the Texas Employment Commission (TEC). House Bill 1863, 74th Regular Legislative Session, created a new state agency, the Texas Workforce Commission. The TWC assumes the entire authority and jurisdiction of all Texas Employment Commission programs and various job training programs administered by other state agencies.) Pursuant to 1 TAC sec.91.23(e) the TEC rules located in 40 TAC Chapter 303 are being transferred to 40 TAC Chapter 817. A table which lists the old and new section numbers is being published in this issue of the Texas Register in the Tables and Graphics Section. Figure: 40 TAC Chapter 817 This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 17, 1996. CHAPTER 819. Interagency Matters (Editor's Note: Effective June 1, 1996, the Texas Workforce Commission (TWC) will replace the Texas Employment Commission (TEC). House Bill 1863, 74th Regular Legislative Session, created a new state agency, the Texas Workforce Commission. The TWC assumes the entire authority and jurisdiction of all Texas Employment Commission programs and various job training programs administered by other state agencies.) Pursuant to 1 TAC sec.91.23(e) the TEC rules located in 40 TAC Chapter 305 are being transferred to 40 TAC Chapter 819. A table which lists the old and new section numbers is being published in this issue of the Texas Register in the Tables and Graphics Section. Figure: 40 TAC Chapter 819 This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 17, 1996. CHAPTER 821. Interagency Matters (Editor's Note: Effective June 1, 1996, the Texas Workforce Commission (TWC) will replace the Texas Employment Commission (TEC). House Bill 1863, 74th Regular Legislative Session, created a new state agency, the Texas Workforce Commission. The TWC assumes the entire authority and jurisdiction of all Texas Employment Commission programs and various job training programs administered by other state agencies.) Pursuant to 1 TAC sec.91.23(e) the TEC rules located in 40 TAC Chapter 307 are being transferred to 40 TAC Chapter 821. A table which lists the old and new section numbers is being published in this issue of the Texas Register in the Tables and Graphics Section. Figure: 40 TAC Chapter 821 This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 17, 1996 CHAPTER 811. Job Opportunities and Basic Skills (Editor's Note: Effective June 1, 1996, the Job Opportunities and Basic Skills Training (JOBS), Food Stamp Employment and Training (E & T), and Child Care and Development programs operated by the Texas Department of Human Services (TDHS) will transfer to the Texas Workforce Commission (TWC). House Bill 1863, 74th Regular Legislative Session, created a new state agency, the Texas Workforce Commission. The TWC assumes authority and jurisdiction of these three programs from TDHS. Clients served by the JOBS and E & T programs administered by TWC also receive services from TDHS. Due to the integration of services, seven TDHS rules located in 40 TAC Chapter 3 are being duplicated under the TWC 40 TAC Chapter 811 and 40 TAC 813. TDHS and TWC need these rules for operation of programs of both agencies.) Pursuant to 1 TAC sec.91.23(e) the specified TDHS rules located in 40 TAC Chapter 3 are being duplicated in 40 TAC Chapter 811 and 813. A table which lists the existing section numbers and their corresponding new duplicated section numbers is being published in this issue of the Texas Register in the Tables and Graphics Section. Figure: 40 TAC Chapter 811(b) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 24, 1996. CHAPTER 813. Food Stamp Employment and Training (Editor's Note: Effective June 1, 1996, the Job Opportunities and Basic Skills Training (JOBS), Food Stamp Employment and Training (E&T), and Child Care and Development programs operated by the Texas Department of Human Services (TDHS) will transfer to the Texas Workforce Commission (TWC). House Bill 1863, 74th Regular Legislative Session, created a new state agency, the Texas Workforce Commission. The TWC assumes authority and jurisdiction of these three programs from TDHS. Clients served by the JOBS and E&T programs administered by TWC also receive services from TDHS. Due to the integration of services, seven TDHS rules located in 40 TAC Chapter 3 are being duplicated under the TWC 40 TAC Chapter 811 and 40 TAC 813. TDHS and TWC need these rules for operation of programs of both agencies.) Pursuant to 1 TAC sec.91.23(e) the specified TDHS rules located in 40 TAC Chapter 3 are being duplicated in 40 TAC Chapter 811 and 813. A table which lists the existing section numbers and their corresponding new duplicated section numbers is being published in this issue of the Texas Register in the Tables and Graphics Section. Figure: 40 TAC Chapter 813 This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 24, 1996.