ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION PART XII. Advisory Commission on State Emergency Communications CHAPTER 251. Regional Plans-Standards 1 TAC 251.6 The Advisory Commission on State Emergency Communications (ACSEC) adopts an amendment to sec.251.6, concerning agency guidelines for strategic plans, amendments and equalization surcharge allocation without changes to the proposed text as published in the October 4, 1996, issue of the Texas Register (21 TexReg 9589). The section establishes guidelines for strategic plans, amendments and equalization surcharge allocation for 9-1-1 emergency service fees and equalization surcharges to support the planning, development, and provision of 9-1-1 service throughout the State of Texas. The amendment provides for modifying the cap increases for four - and ten - channel recorders. These changes keep pace with the rising costs of the equipment. The commission received no comments on the proposed amendment. The section is adopted pursuant to the Health and Safety Code, Chapter 771, and the Texas Administrative Code, Part XII, Chapter 251, Regional Plans and Standards. 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 December 3, 1996. TRD-9617476 James D. Goerke Executive Director Advisory Commission on State Emergency Communications Effective date: December 24, 1996 Proposal publication date: October 4, 1996 For further information, please call: (512) 305-6911 TITLE 28. INSURANCE PART I. Texas Department of Insurance CHAPTER 3. Life, Accident and Health Insurance and Annuities SUBCHAPTER KK. Pharmaceutical Services 10 TAC sec.sec.3.11001-3.11005 The Texas Department of Insurance adopts new subchapter KK, sec.sec.3.11001- 3.11005 relating to pharmaceutical services. The sections are adopted with changes to the proposed text as published in the July 5, 1996, issue of the Texas Register (20 TexReg 6201). This new subchapter is necessary to implement amendments to the Insurance Code, Article 21.52B, enacted by the 74th Legislature, 1995, in Senate Bill 628, relating to access for consumers to pharmaceutical services through health insurance policies and managed care health plans. The sections are also necessary to address concerns based on a review of complaints and formal and informal comments that some insurers have established unreasonable application procedures for pharmacies or pharmacists who seek to participate as contract providers under a health insurance policy, including a health insurance policy that incorporates a preferred provider benefit provision. In addition, the new sections are necessary to enhance consumer access to pharmaceutical services, to promote consumer freedom of choice in selecting qualified pharmacists and to provide fairness to pharmacies and pharmacists by requiring the disclosure of information upon request concerning insurer application procedures and requirements for pharmacies and pharmacists, by requiring the timely notification by insurers of acceptance or non-acceptance to participate as a contract provider, by defining reasonable application fees and by requiring that insurers apply all contract conditions to pharmacies and pharmacists uniformly. The sections apply to all health insurance policies, including health insurance policies that incorporate preferred provider benefit plans or pharmacy benefit plans, issued, delivered, issued for delivery, entered into or renewed in this state in which an insurer provides benefits for pharmaceutical services. The department recognizes that many insurers may contract with an organization or other type of entity for the purposes of offering a network of preferred pharmacies. Under these circumstances, it is the insurers' responsibility to meet the requirements of these sections or to assure that the requirements are met. Section 3.11002 provides definitions used in the sections. The definitions are consistent with statutory definitions set forth in Article 21.52B, except the definition of "pharmaceutical services" includes an additional sentence to clarify mail order prescription drug services are not included. Comments received from insurers, pharmacists and legislative members prior to and subsequent to publication of these definitions indicated that in-state and out- of-state mail order pharmacies should not be included. The definition of "pharmacy" published in the Texas Register excluded out-of-state mail order pharmacies. Based on a comment that the exclusion would be more appropriately placed in the definition of "pharmaceutical services" than in the definition of "pharmacy" and on comments that in-state as well as out-of-state mail order services should be excluded, the agency has deleted the exclusion from the definition of "pharmacy" and added a sentence to the definition of "pharmaceutical services" to clarify mail order services are not included. Section 3.11003(a) and (b) address concerns based upon complaints that some insurers fail or refuse to provide information concerning the insurers' application process when requested by pharmacies and pharmacists and to timely notify pharmacies and pharmacists of acceptance or non-acceptance of an application. This section establishes reasonable and fair procedures intended to achieve enhanced accessibility to pharmaceutical services for consumers. Section 3.11003(c), which required periodic notification of pharmacies and pharmacists by insurers concerning opportunities to participate as contract providers, has been deleted based upon comments received. Section 3.11004(a) establishes criteria for reasonable fees for application and recertification allowed under Article 21.52B sec.2(c)(3). The agency received complaints that many pharmacists were effectively prevented from participating in insurer managed care plans because of excessive and unaffordable application and recertification fees. The agency received evidence that as much as $1000.00 per application was being charged. Evidence indicated most, if not all, insurers had not charged an application or recertification fee for pharmacists prior to passage of Article 21.52B. Based upon written comments and testimony at the public hearing, the commissioner believes $50.00 should be the maximum allowable application or recertification fee and has changed paragraph (1) of sec.3.11004(a) accordingly. The criteria set forth in paragraphs (2)-(5) of sec.3.11004(a) is a reasonable interpretation of language in Article 21.52B sec.2(c)(3) and the definition of "pharmacy" in Article 21.52B sec.1(4). These criteria are established also based upon comments from independent pharmacies and pharmacists that insurers were unfairly charging only one application fee to all pharmacies rather than a separate application fee to each pharmacy participating under a single corporate owned entity. Section 3.11004(b) addresses concerns based on evidence that some insurers have been requiring financial information and deposits or other monies, other than reasonable application fees, as a means to discourage pharmacists from applying to participate. Based on evidence received by the department, the Commissioner has determined that requiring financial information and deposits is not a reasonable term or condition imposed by insurers on pharmacies and pharmacists. Throughout sec.3.11004 it is clear that the provisions apply to application and recertification fees. Section 3.11004(b) contemplates recertification fees in the language, "any pharmacy or pharmacist participating ... as a contract provider." For this reason, "and recertification" has been added before "fees" in sec.3.11004(b)(2) to avoid confusion and to clarify that this provision applies to "application" as well as "recertification" fees. The language in sec.3.11005(a) closely follows the language of Article 21.52B sec.2(a)(2), which requires a policy or plan to apply the same administrative, financial and professional conditions to pharmacies and pharmacists applying to participate in a plan as are applied to those already participating. Subsections (b) and (c) of sec.3.11005 are intended to enhance accessibility to pharmaceutical services. The department has changed sec.3.11005(b) and (c) based upon a commenter's suggestion to use the term "additional compensation" instead of "differential compensation". This change clarifies the department's intent. The subsections allow for additional compensation and reimbursement under certain circumstances. Section 3.11005(b) is based upon information the department has received that pharmacies and pharmacists, which provide pharmaceutical services requiring specialized skill or knowledge, will not accept the same compensation and reimbursement rates as are paid for ordinary pharmaceutical services. For this reason, the department has identified pharmaceutical services which may not be accessible to beneficiaries when additional compensation or reimbursement is not paid by insurers to pharmacies and pharmacists providing these services. Based upon comments that "home intravenous drug therapy" is too limiting, "home intravenous drug therapy" in subsection (b)(3) has been changed to "injectable drug therapy" as suggested by a commenter. The term intravenous drug therapy includes injectable drug therapies. This subsection is only applicable to pharmacies and pharmacists which provide pharmaceutical services, including injectable drug therapies, and does not apply to home health care agencies. This subsection permits, but does not require, an insurer to reimburse or compensate at a higher amount for preparing and dispensing injectable drug therapy. Section 3.11005(c) allows additional compensation or reimbursement rates in counties with a population of less than 40,000. Subsection (c) is based upon evidence received by the department that in many instances, insurers negotiate very low rates on a statewide or nationwide basis with chain drug stores to provide pharmacy services in rural areas. Many small independently owned pharmacies or pharmacists are financially unable to accept such low rates and refuse to contract with the insurers to provide pharmaceutical services in rural areas. This subsection allows insurers to pay additional compensation or reimbursement to the small independently owned pharmacies and pharmacists in order to enhance beneficiary access to pharmaceutical services in rural areas. In addition and in response to the commenters, accessibility and availability is important when insurers contract with pharmacies. The department believes there may be certain circumstances when a variation in terms and conditions is needed for the purpose of enhancing accessibility to pharmaceutical services, including rural areas, and that flexibility may be needed when an insurer contracts with a pharmacy or pharmacist. New sec.3.11005(d) has been added in response to comments to allow insurers to file with the department terms and conditions, including increased compensation or reimbursement, that enhance accessibility. New sec.3.11005(d) has been established as an alternative for insurers which establish terms and conditions to enhance consumer accessibility to pharmaceutical services. The sections as adopted differ in some respect from the proposed published sections based on study generated by comments received. Specific changes and reasoned justification for the sections and agency responses to comments are addressed in Section 4, Summary of Comments. Section 3.11001 sets forth the scope of the subchapter. Section 3.11002 provides definitions used in the sections. Section 3.11003(a) requires each insurer to provide, upon request, information concerning the application process and qualification requirements to become a participating pharmacy or pharmacist. Section 3.11003(b) requires an insurer to notify an applicant in writing of acceptance or non-acceptance as a contract provider no later than 90 days after receipt of an application. Proposed sec.3.11003(c) has been deleted based on comments. Section 3.11004(a) establishes criteria for reasonable fees for application and recertification, if any are charged. Section 3.11004(b) prohibits an insurer from requiring financial information or the payment of compensation other than reasonable fees for application and recertification. Section 3.11005(a) requires insurers to apply all administrative, financial and professional conditions to all pharmacies and pharmacists uniformly. Section 3.11005(b) allows insurers to establish additional compensation or reimbursement for certain pharmaceutical services or products for purposes of enhancing access to pharmaceutical services as long as rates are uniformly applied. Section 3.11005(c) allows insurers to establish additional compensation or reimbursement for pharmaceutical services in certain counties for purposes of enhancing access to pharmaceutical services in those counties. Section 3.11005(d) is an alternative to (b) and (c) which allows insurers to establish differential terms and conditions, including additional compensation or reimbursement for the purpose of enhancing access to pharmaceutical services. The terms and conditions must be filed for information with the department. General. Several commenters expressed appreciation to the agency for soliciting input from various interested parties. Several commenters stated their full or general support for the sections as proposed. These commenters stated that the section will provide equal access to pharmacies and pharmacists for consumers, will ensure quality of care and will control costs. Other commenters made suggestions for recommended changes. Agency Response: Prior to proposing these sections agency staff conducted informal meetings and discussions with interested parties including insurers and insurer organizations, HMOs, pharmacists and pharmacy organizations and legislative members. The agency based some provisions of the proposed rules upon the information it received informally. The agency also reviewed complaints received concerning the establishment of application fees and procedures for pharmacists and pharmacies seeking to participate as contract providers. Written public comments on the proposed sections were received and a public hearing was held by the agency to receive additional public comment. Based on study generated by the comments, the Commissioner has made changes to certain of the sections. The agency appreciates the comments it has received and the information provided at the public hearing. Statutory authority. Two commenters think that Article 21.52B does not authorize the promulgation or adoption of any rules by the Commissioner of Insurance. These commenters state that Article 1.03A was amended at the 1993 session of the Legislature to state that the Commissioner was authorized to adopt rules "only as authorized by statute." Furthermore, without a specific authorizing statute independent of Article 1.03A, Article 1.03A does not itself authorize substantive rules to be adopted. Additionally, a commenter stated that reference to Government Code sec.2001.004 is an erroneous and misleading citation. Agency response: The agency disagrees. Article 1.03A was amended by the 73rd Legislature in 1993. A review of the legislative history of Article 1.03A shows that during debate concerning Article 1.03A on the Senate floor, on May 24, 1993, a clarifying amendment was accepted and the floor discussion of the amendment clearly explained that although the department must have specific statutory jurisdiction to issue a rule, each section of the Insurance Code in which the department has jurisdiction need not explicitly reference the department's rulemaking authority. The discussion on the floor by the Senate members established that the department only needs general statutory authority to adopt a rule. Article 1.03A provides the agency with general rulemaking authority to implement, interpret or prescribe law or policy to carry out the provisions of the Insurance Code. Each article of the Insurance Code over which the department has regulatory and enforcement jurisdiction need not explicitly state that "the Commissioner has authority to adopt rules under this article." Insurance Code, Article 21.52B and Article 1.03A together provide statutory authority to adopt these rules. The department agrees that Article 1.03A does not itself authorize substantive rules to be adopted by the Commissioner without a specific authorizing statute independent of Article 1.03A. In this case, the specific authorizing statute independent of Article 1.03A is Article 21.52B. Article 1.03A authorizes the Commissioner to adopt rules for the conduct and execution of the "duties and functions" of the department only as authorized by statute. Insurance Code, Articles 1.01A and 1.09 establishes the "duties and functions" of the department as the regulation of the business of insurance in this state and implementation of the purpose of the Insurance Code. Article 21.52B is the "authorizing statute" under which the Commissioner may exercise his general rulemaking authority authorized under Article 1.03A. A purpose of Article 21.52B, as amended, is to prohibit managed care plans which provide or arrange to provide pharmaceutical services from limiting beneficiary access to pharmaceutical services. These adopted sections implement this purpose and interpret provisions of Article 21.52B, which is clearly within the authority of the Commissioner under Article 1.03A and 21.52B. The department disagrees that reference to Government Code sec.2001.004 is an erroneous and misleading citation. The agency did not state in the preamble that the sections are proposed or authorized under Government Code sec.2001.004. By citing Government Code sec.2001.004, the agency merely set forth procedural requirements of the Government Code for adoption of rules. A commenter stated that it is imperative that infusion pharmacies be named as included in the sections. Another commenter seeks clarification whether home health care providers are excluded from the sections. A commenter expressed that insurers contract directly with home health care agencies which then subcontract with pharmacists for delivery of home care infusion services. This commenter noted that insurers avoid having to comply with Article 21.52B by not contracting directly with home infusion care pharmacists. A few commenters expressed concerns that third party payors are threatening pharmacies and pharmacists with desk-audits and penalties when generics are not substituted as much as the payor determines appropriate. This commenter also expressed concerns that prescription plan payors pressure pharmacists to ask the physician to change their prescription; insurers should not be allowed to arbitrarily delete certain drugs from the formulary; and pharmacies are not allowed to collect the full copayment for drugs. One commenter requested the addition of punitive measures to the rules to provide incentives to insurers to follow the intent of Article 21.52B. Agency Response: The sections apply to pharmacies and pharmacists, including home infusion care pharmacists, who apply to participate as contract providers under an insurance plan, for the provision of pharmaceutical services. The sections do not apply to home health care providers who apply to participate as contract providers under an insurance plan. However, an insurer which provides benefits for pharmaceutical services as part of its plan must assure that all provider contractors and subcontractors within the plan network comply with Article 21.52B and these sections. This means that an insurer must assure that the home health care agency does not deny a home infusion care pharmacist or pharmacy the right to participate as a contract provider in accordance with Article 21.52B and these sections. No provision in Article 21.52B or these sections requires an insurer to contract directly with pharmacists and pharmacies, including home infusion care pharmacists and pharmacies. Comments regarding concerns that were not addressed in the proposed sections have been noted and will be monitored by the department. Fairness to pharmacies and pharmacists which contract with insurers is a necessary component related to the availability, accessibility, and continuity of pharmacy services. Proper utilization and cost management of pharmacy services by insurers is also a necessary component related to the availability, accessibility, and continuity of pharmacy services. Insurer practices should encompass both fairness to pharmacies and pharmacists and proper utilization and cost management of pharmacy services. Insurer practices which have the effect of encouraging or pressuring pharmacies and pharmacists to violate the law should be reported to the department. The Insurance Code contains provisions which authorize the agency to take administrative enforcement actions as warranted against entities that violate the Code or rules adopted by the agency. In light of those provisions, the agency believes it is unnecessary to add "punitive measures to the rules" as suggested by the commenter. Pharmacy. Several commenters requested that language be added to the definition of "pharmacy" excluding in-state mail order pharmaceutical services as well as out-of-state mail order pharmaceutical services. One of these commenters suggests that the exclusion would be more appropriately placed in the definition of "pharmaceutical services" than in the definition of "pharmacy." One commenter agreed the exclusion of mail order is appropriate. One commenter seeks clarification whether home health care providers are excluded from the definition of pharmacy. Agency Response: The agency intended to exclude mail order pharmacies (whether in-state or out-of -state) in the definition. The agency has made changes by placing the exclusion language in the definition of "pharmaceutical services" as recommended by the commenter and deleted it from the definition of "pharmacy." Home health care providers are excluded from the definition of pharmacy. The definition of pharmacy does not include home health care providers which do not hold a license under the Pharmacy Act. Article 21.52B and these sections apply to pharmacies and pharmacists which contract or subcontract to deliver pharmacy services under an insurance plan. sec.3.11003. Notification and Information to Pharmacies and Pharmacists. One commenter requested the addition of language stating that when an insurer has completed the application process for the 1996 calendar year, that insurer should be provided waiver of the open application period for that year. Agency Response: Unlike HMOs which are subject to unique provisions concerning application procedures for contract providers under Insurance Code, Article 20A.14(h), insurers may not impose an open application period or restrict the application process to certain dates within a year for applications made pursuant to Article 21.52B. Article 20A.14(h) specifically provides for a 20-day application period each calendar year which any provider in the geographic service area may apply and contains unique application processing requirements that apply only to HMOs. Therefore, the change to the section requested by the commenter is unnecessary. sec.3.11003(a). A few commenters suggested that a provision be added to the rule to require an insurer to acknowledge receipt of the application or recertification within 30 days of receipt. Agency Response: At this time the agency disagrees that the change requested should be made. Prior to receipt of this comment, the agency has not been aware that failure to acknowledge receipt of an application or recertification to participate as a contract provider is a problem. The agency will monitor and evaluate complaints concerning this matter in the future. sec.3.11003(c). One commenter stated that as written, subsection (c) would require insurers to notify pharmacies and pharmacists located in areas outside the geographic service area of the health plan, resulting in unnecessary expenses to the health plan and its enrollees and possibly resulting in unfounded expectations by pharmacies and pharmacists. The commenter suggested adding the clarifying phrase "...notify... within the geographic area serviced by its health insurance plan..." One commenter objects to this subsection as beyond any statutory provisions, standards, criteria, authority or requirements of Article 21.52B as enacted by the Legislature. The commenter argues that there are only requirements or prohibitions in Article 21.52B and no provision requiring insurers to affirmatively seek out or give notice to pharmacies or pharmacists of the opportunity to participate as contract providers; the proposed section would mandate that insurers spend funds to notify pharmacies and pharmacists about policies or health care plans; such affirmative expenditures of corporate funds to benefit only pharmacies or pharmacists is unauthorized and improper regulatory action; and furthermore, sec.3.11003(c) has no statutory validity and should not be adopted. The commenter adds that, as Article 21.52B relates exclusively to policy provisions, it becomes a self-implementing statute that can be enforced by the department's responsibility to review and approve policy provisions under Insurance Code, Article 3.42; and, therefore, no rule is necessary because the department can enforce the statute through policy approval provisions. Another commenter stated that the subsection will not fulfill its purpose of providing notice to pharmacies and pharmacists. The commenter believes no insurer will make the choice to bear the expense of writing to each pharmacy and pharmacist. Additionally, the commenter stated that an insurer with a state-wide network could choose to publish the notice in an obscure newspaper resulting in pharmacies and pharmacists not having sufficient notice. Suggestions to revise the rules are: (1) insurers should be required to provide the department with information about enrollment periods and the dates of publication so that pharmacies and pharmacists can contact the department to obtain this information; (2) notification could be published in the Texas Register; or (3) notification could be required to be distributed on the world wide web. Agency Response: The agency agrees that the subsection should not require insurers to notify pharmacies and pharmacists outside the geographic service area of the insurance health plan. The required notification was included for consistency with the HMO rules related to pharmaceutical services. However, the subsection is unnecessary and has been deleted because insurers which sponsor preferred provider benefit plans are already required to notify pharmacies and pharmacists in the geographic covered by the plan under sec.3.3703(1) of this title. Title 28 TAC sec.3.3703(1) requires any insurer which sponsors a preferred provider plan to notify immediately all pharmacies and pharmacists in the geographic area covered by the plan of its intent to offer such a plan by publication, or in writing, to each pharmacy and pharmacist of the opportunities to participate. The agency disagrees with the comment that the subsection is beyond any statutory provisions of Article 21.52B and that no rule is necessary because the department can enforce the Article 21.52B through policy approval provisions. The agency can not determine by reviewing an insurance policy whether a pharmacy or pharmacist has been denied the right to participate as a contract provider under an insurance plan. Therefore, the purpose and intent of Article 21.52B cannot be achieved through the policy approval process. The agency will monitor whether sec.3.3703(1) of this title, relating to preferred provider plans, will fulfill the purpose of providing notice to pharmacies and pharmacists and will consider suggestions submitted by the commenter to revise the rules in the future. sec.3.11004. Pharmacy Application and Recertification. sec.3.11004(a). Application and recertification fees. A few commenters stated that this subsection should be stricken. Several commenters oppose the proposed $200.00 application and recertification fee as being unnecessary, excessive or otherwise unreasonable. One commenter noted that Article 21.52B does not prohibit an insurer or HMO from charging reasonable application and recertification fees but does not authorize the imposition of such fees. A few commenters expressed concern that a cap of $200.00 per application fee will become the standard fee for all insurers and HMOs. One commenter stated that $25.00 would be reasonable as a limit on application and recertification fees. Another commenter noted that the Board of Pharmacy administers and regulates pharmacy practice for all pharmacy licensees for less than the $200.00 proposed fee; fees for an independent pharmacy which has many plans would be cost prohibitive; and only the largest corporate providers would be able to afford the fees. Several commenters question why pharmacies are being singled out to pay an application fee. These commenters note that prior to passage of Senate Bill 628 insurers and HMOs and did not charge pharmacy providers an application fee and that no other fee is charged of other health care providers to participate. One commenter stated that allowing insurers and HMOs to charge such fees to pharmacies is unfairly discriminatory against pharmacies as a class of providers; since pharmacies provide essentially one product, the level of review and cost for credentialing is much lower than for other types of providers; most insurer networks and HMOs currently require pharmacies to provide their own credentials and evidence of good standing with the Texas State Board of Pharmacy as a condition of participation; and allowing insurers and HMOs to charge an application fee of $200.00 per pharmacy will allow insurers and HMOs to subsidize administrative costs in other areas with the pharmacy application fees which was not intended by the Article 21.52B. A few commenters state that the $200.00 application or recertification fee per licensed pharmacy is not reasonable because an insurer or HMO contracts per applicant, or corporate entity, not with each individual pharmacy the applicant controls or operates. One of these commenters added that there are no additional costs to an insurer or HMO to determine the qualifications of a chain drug store company to participate within its network. One commenter, which contracts with a general pharmacy entity, not each individual pharmacy controlled or operated by the general pharmacy entity, comments that administrative expenses in the application process are generally not considerably greater than they would be for an individual pharmacy. Additionally, this commenter states that $200.00 does not begin to compensate for administrative costs and suggests that the application fee be either higher or left to the insurer's discretion. One commenter states that the section is internally inconsistent because it requires the fee to be "reasonable " but charged to "each" licensed pharmacy. Because of the nature of economies of scale, the costs involved with application and recertification of a single location of a large pharmacy chain are much smaller than the cost involved with application and recertification of a single independent pharmacy. Therefore, allowing an insurer to charge the same fee to each location in a large store chain as it does for a single independent pharmacy results in the charge to the chain being "unreasonable" in comparison to the actual cost involved. One commenter stated that pharmacies currently contracting with insurers and HMOs should be "grandfathered" or not charged a fee since the insurer or HMO will incur no or little administrative fees with regard to existing providers. Another commenter requested clarification concerning how recertification fees will be applied and suggested a $200.00 recertification fee is unreasonable because less costs are involved. Agency Response: New sec.3.11004(a) is appropriate, necessary and consistent with the meaning and intent of Article 21.52B. However, based upon comments, the commissioner believes that a fee which does not exceed $50.00, instead of $200.00 as proposed, is reasonable and changes have been made accordingly to sec.3.11004(a)(1). Based on prior agency experience, the commissioner disagrees that a reasonable fee should be determined by the market place or left to the insurer's discretion. The agency has received information that some insurers have set application and recertification fees as high as $1000.00 per applicant. This information has indicated to the agency that a higher fee can present significant financial burdens to small independently owned pharmacies and, if such pharmacies are thus unable to apply to participate as contract providers, could ultimately result in restricting access to pharmaceutical services for many beneficiaries. The agency did not intend this subsection to single out pharmacies as a provider to pay an application fee to insurers. Insurers are encouraged to not charge application or recertification fees. However, Article 21.52B explicitly states that it does not prohibit establishment of reasonable application and recertification fees for pharmacy contract providers. Section 3.11004(a) provides guidance concerning what the agency considers reasonable under Article 21.52B for insurance plans which choose to impose application and recertification fees. The subsection does not mandate that insurers must charge an application and recertification fee, nor does it mandate that insurers must charge $50.00; rather the subsection establishes $50.00 as the maximum amount of charge that will be considered reasonable. If charging this amount results in fees greatly exceeding the actual resources expended in processing applications, a plan should charge less than the maximum. The subsection contains no prohibition against spreading administrative costs among large and small pharmacies. The agency believes that spreading these administrative costs would address the commenter's concerns about excessive fees and inadequate fees. Moreover, Article 21.52B sec.2(c)(3) states that fees may be established for a "pharmacy." That term is defined in sec.1 of the statute as a facility licensed under the Pharmacy Act. Corporate entities owning multiple pharmacies are not licensed as facilities and thus do not meet this definition. The agency disagrees that current contracting pharmacies should be "grandfathered" or not charged a recertification fee. Article 21.52B requires that the fee, if there is one, be charged on a uniform basis. Current contracting pharmacies may not be charged an application fee if the application has been accepted prior to adoption of these rules. However, current contracting pharmacies would be subject to a fee upon filing for recertification if the insurance plan charges a recertification fee for other pharmacies. Recertification fees will be applied the same as application fees. However, the agency presumes that insurers will charge a lower amount than $50.00 for recertification fees because costs to the insurer for processing a recertification should be much lower than processing an initial application. sec.3.11004(b). One commenter objects to this subsection, which prohibits the insurer from requiring a pharmacy or pharmacist to provide financial statements to the insurer or make a deposit of any monies with the insurer. The commenter believes the subsection is totally beyond the provisions of Article 21.52B and invades the contractual rights and privileges of the insurer and health care providers under the policy or contract. Agency Response: The agency disagrees. For the purpose of Article 21.52B to be fulfilled, the contractual terms and conditions established by an insurer for pharmacies and pharmacist who contract to provide pharmaceutical services under an insurance plan by implication must be reasonable. The agency believes, based on evidence received, there is no justified reason to require pharmacies and pharmacists to provide financial statements or make deposits of monies other than to effectively prevent many pharmacies and pharmacists from applying to participate as contracts providers. Evidence has shown insurers use these requirements to exclude many small and independently owned pharmacies. In addition, sec.3.3703(2) of this title relating to requirements for preferred provider plans, requires terms and conditions of the contract between the insurer and the preferred providers to be reasonable. sec.3.11005. Contracts for Pharmaceutical Services. sec.3.11005(b). One commenter agrees that differential rates are appropriate. One commenter supports the flexibility of the language as a means to enhance accessibility for pharmaceutical services. However, the commenter would like the department to develop guidelines which would encourage an insurer to enhance accessibility to pharmaceutical services in urban areas. One commenter questions use of the word "differential" and suggests use of the word "incremental" or "additional compensation." One commenter states that it is not reasonable to apply the same financial conditions to all pharmacies and pharmacists. Rates and compensation must be allowed to vary according to the marketplace and cannot be uniformly applied throughout the state. One commenter, who requested the rule be deleted, stated that the section limits negotiating differential compensation or reimbursement rates to three specific situations; such limitation does not take into consideration the business realities of contracting for pharmaceutical products and services for a managed care plan, and the opportunity for small, independent pharmacies to negotiate a satisfactory compensation or reimbursement rate would be eliminated which would have an opposite effect of that intended, by excluding rather than including more pharmacies and pharmacists. Agency Response: The agency agrees with the commenter's suggestion to use the term "additional compensation" instead of "differential compensation" and has made the change accordingly. The section as proposed allows for variation in compensation and reimbursement rates under certain circumstances. Subsection (c) allows additional compensation or reimbursement rates in counties with a population of less than 40,000. The language in the section concerning application of the same financial conditions to all pharmacies and pharmacists closely follows the language of Article 21.52B sec.2(a)(2), which requires a policy or plan to apply the same administrative, financial and professional conditions to pharmacies and pharmacists applying to participate in a plan as are applied those already participating. In addition and in response to the commenters, accessibility and availability is important when insurers contract with pharmacies. The department agrees that there may be certain circumstances when a variation in terms and conditions is needed for the purpose of enhancing accessibility to pharmaceutical services, including rural areas, and that flexibility may be needed when an insurer contracts with a pharmacy or pharmacist. New sec.3.11005(d) has been added in response to comments to allow insurers to file with the department terms and conditions, including increased compensation or reimbursement, that enhance accessibility. New 3.11005(d) has been established as an alternative for insurers which establish terms and conditions to enhance consumer accessibility to pharmaceutical services. sec.3.11005(b)(1). One commenter requested that the differential reimbursement for compounding be submitted on-line to the insurer because handwritten claim forms cause payment delays and uncertainty of reimbursement rate. Agency Response: The method used by insurers to reimburse or compensate pharmacies and pharmacists such as use of on line adjudication of claims, is beyond the scope of these sections and Article 21.52B. sec.3.11005(b)(2). One commenter requested that the amount of the controlled substance reimbursement be defined, because pharmacies lose money on these prescriptions. Agency Response: The amount of reimbursement or compensation paid by insurers to pharmacies and pharmacists is beyond the scope of these sections and Article 21.52B. The department lacks authority to set amounts of reimbursement or compensation. sec.3.11005(b)(3). A few commenters support the inclusion of intravenous drug therapy for home patients. One of these commenters stated that patients have been limited in their choice of provider for this type of service. One commenter states that home intravenous drugs is just a subset of all injectable drug therapies and that the definition may be too limiting. Agency Response: The purpose of sec.3.11005(b) is to enhance accessibility to pharmaceutical services. The department has received information that pharmacies and pharmacists, which provide pharmaceutical services require specialized skill or knowledge, will not accept the same compensation and reimbursement rates as are paid for ordinary pharmaceutical services. For this reason, the department has identified pharmaceutical services which may not be accessible to beneficiaries when additional compensation or reimbursement is not paid by insurers to pharmacies and pharmacists providing these services. The department agrees with the commenters that "home intravenous drug therapy" is too limiting. "Home intravenous drug therapy" has been changed to "injectable drug therapy" as suggested by the commenter. The term intravenous drug therapy includes injectable drug therapies. This subsection is only applicable to pharmacies and pharmacists which provide pharmaceutical services, including injectable drug therapies, and does not apply to home health care agencies. This subsection permits, but does not require, an insurer to reimburse or compensate at a higher amount for preparing and dispensing injectable drug therapy. sec.3.11005(c). One commenter stated the same reimbursement rate should be applied for all pharmacies and pharmacists and that the rates should be equally applied without discrimination. Agency Response: The agency disagrees. The purpose of Article 21.52B is to prohibit managed care plans which provide or arrange to provide pharmaceutical services from limiting beneficiary access to pharmaceutical services. In many instances, insurers negotiate very low rates on a statewide or nationwide basis with chain drug stores to provide pharmacy services in rural areas. Many small independently owned pharmacies or pharmacists are financially unable to accept such low rates and refuse to contract with the insurers to provide pharmaceutical services in rural areas. This subsection allows insurers to pay additional compensation or reimbursement to the small independently owned pharmacies and pharmacists in order to enhance beneficiary access to pharmaceutical services in rural areas. For: Gary King Pharmacy, Inc., Home Intensive Care Pharmacy, Gibson's Caprock Drug. For with changes: The Prudential, Sunbelt Pharmacare; Texas Pharmacy Association; Insurance Alliance of America, Eckerd Corporation and affiliated pharmacies, Texas Federation of Drug Stores; Legend Pharmacies of Texas; John Hancock Mutual Life. Against: Texas Legal Reserve Officials Association; Texas Life Insurance Association; Requested hearing: Eckerd Corporation,; Texas Pharmacy Association; Texas Federation of Drug Stores; Insurance Alliance of America. The new sections are adopted under the Insurance Code, Articles 21.52B and 1.03A. The Insurance Code, Article 21.52B, as amended by the 74th Legislature, 1995, in Senate Bill 628, among other things, prohibits an insurer from limiting a beneficiary of a health insurance policy or plan from exercising freedom of choice in the selection of a pharmacy or pharmacist. The statute also prohibits an insurer from limiting provider participation as a contract provider for any pharmacy or pharmacist who meets the terms and requirements established by the insurer. Article 21.52B, as amended, also allows an insurer to establish reasonable application and recertification fees for a pharmacy which provides services as a contract provider, provided the fees are uniformly charged to each pharmacy. The Insurance Code Article, 1.03A provides that the Commissioner of Insurance may adopt rules and regulations to execute the duties and functions of the Texas Department of Insurance as authorized by statute. The Government Code, sec.sec.2001.004 et seq. authorizes and requires each state agency to adopt rules of practice setting forth the nature and requirement of available procedures and prescribes the procedures for adoption of rules by a state administrative agency. sec.3.11001. Scope. This subchapter applies to a health insurance policy, including a health insurance policy that incorporates a preferred provider benefit plan, issued, delivered, issued for delivery, entered into or renewed in this state in which an insurer provides benefits for pharmaceutical services under a contract or agreement entered into with a group contract holder or beneficiary of the policy and requires or encourages policy beneficiaries to use pharmaceutical services, pharmacies or pharmacists designated by the insurer. sec.3.11002. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Health insurance policy-An individual, group, blanket, or franchise insurance policy, insurance policy or agreement, or group hospital service contract that provides benefits for pharmaceutical services that are necessary as a result of or to prevent an accident or sickness. The term does not include evidence of coverage provided by a health maintenance organization under the Health Maintenance Organization Act (the Insurance Code, Chapter 20A). The term includes a health insurance policy that incorporates a preferred provider benefit plan. Insurer-Any life, health and accident; health and accident; or health insurance company or company operating pursuant to the Insurance Code, Chapters 3, 10, 20, 22 and 26 authorized to issue, deliver, issue for delivery or renew in this state health insurance policies approved under the Insurance Code, Article 3.42. Pharmaceutical services-Services, including dispensing prescription drugs as defined in the Pharmacy Act, Texas Civil Statutes, Article 4542a-1, sec.5, that are ordinarily and customarily rendered by a pharmacy or pharmacist licensed to practice pharmacy under the Pharmacy Act, Texas Civil Statutes, Article 4542a-1. The term does not include mail order services. Pharmacist-A person licensed to practice pharmacy under the Pharmacy Act, Texas Civil Statutes, Article 4542a-1. Pharmacy-A facility licensed under the Pharmacy Act, Texas Civil Statutes, Article 4542a-1, sec.29. sec.3.11003. Notification and Information to Pharmacies and Pharmacists. (a) An insurer shall, upon request, provide information concerning the application process and qualification requirements for participation in providing pharmaceutical services under a health insurance policy. (b) An insurer must notify a pharmacy or pharmacist of acceptance or non- acceptance of an application to participate as a contract provider under a health insurance policy, in writing, no later than 90 days from receipt of an application. sec.3.11004. Pharmacy Application and Recertification. (a) An insurer may establish reasonable application and recertification fees for each licensed pharmacy which participates or applies to participate as a contract provider under a health insurance policy. An application or recertification fee charged under this section shall be considered reasonable provided: (1) the fee does not exceed $50 per licensed pharmacy; (2) the fee shall be uniformly charged per application or recertification to each pharmacy holding a license issued by the Texas State Board of Pharmacy; (3) an insurer that contracts for the pharmaceutical services of more than one licensed pharmacy under common ownership or affiliation shall charge a separate fee for each licensed pharmacy; (4) no more than one fee per licensed pharmacy is charged by an insurer for processing an application for participation as a contract provider under all health insurance policies and in any or all networks utilized by the insurer; and (5) no more than one fee per licensed pharmacy is charged by a health maintenance organization or insurer within an insurance holding company system, as defined in Insurance Code, Article 21.49-1, sec.2, utilizing common networks. (b) An insurer shall not require any pharmacy or pharmacist participating or applying to participate as a contract provider under a health insurance policy: (1) to provide financial statements to the insurer; and (2) to deposit with the insurer any monies or other forms of compensation except for reasonable application and recertification fees. sec.3.11005. Contracts for Pharmaceutical Services. (a) An insurer must apply the same administrative, financial and professional conditions to all pharmacies and pharmacists participating or applying to participate as contract providers under a health insurance policy. (b) An insurer may establish additional compensation or reimbursement rates for the following pharmaceutical services or products as long as the rates are uniformly applied to pharmacies and pharmacists participating as contract providers under a health insurance policy: (1) compounding as defined under the Pharmacy Act, Texas Civil Statutes, Article 4542a-1, sec.5; (2) dispensing of controlled substances as defined under the Pharmacy Act, Texas Civil Statutes, Article 4542a-1, sec.5; and (3) preparing and dispensing injectable drug therapies. (c) In order to enhance accessibility to pharmaceutical services, an insurer may establish additional compensation or reimbursement rates for pharmaceutical services in counties with a population of less than 40,000 (as determined by the most recent published findings from the State Data Center of the Texas Department of Commerce) as long as the rates are uniformly applied within each county to pharmacies and pharmacists participating as contract providers under a health insurance policy. (d) As an alternative to subsections (b) and (c) of this section, an insurer may establish different terms and conditions, including additional compensation and reimbursement rates for pharmaceutical services, for the purpose of enhancing accessibility to pharmaceutical services. A copy of the contract between the insurer and pharmacy or pharmacist, which includes such terms and conditions, shall be filed with the department and the insurer must demonstrate how the different terms and conditions will enhance accessibility to pharmaceutical services. The terms and conditions shall be disclosed to potential applicants in the application process. 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 December 4, 1996. TRD-9617527 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: December 25, 1996 Proposal publication date: July 5, 1996 For further information, please call: (512) 463-6327 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART III. Texas Youth Commission CHAPTER 81.Administrative Provisions 37 TAC sec.sec.81.1- 81.4, 81.5, 81.7, 81.11- 81.15, 81.17, 81.20, 81.21, 81.25, The Texas Youth Commission (TYC) adopts the repeal of sec.sec.81.1- 81.4, 81.5, 81.7, 81.11-81.14, 81.15, 81.17, 81.20, 81.21, and 81.25, concerning complaints from the public, public and media, contract disputes, prevailing wage rates for construction projects, petition for the adoption of a rule, notification of a facility opening or relocating, state inscription, site selection for juvenile facility construction, selected process of an architect/engineer, construction contract award procedures, policy references to institutions/Evins Regional Juvenile Center, research projects, open records request, copying costs, and concealed handguns, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10514). The justification for the repeals is the replacement by new rules which encourage more efficient agency operation. The repealed sections will be replaced by new replacement sections proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. 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 December 2, 1996. TRD-9617417 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 CHAPTER 83.Contracted Youth Services 37 TAC sec.sec.83.1, 83.3, 83.5-83.7, 83.9, 83.11-83.13, 83.15, 83.17, 83.19, 83.21, 83.23, 83.41, 83.43, 83.45, 83.47, 83.49 The Texas Youth Commission (TYC) adopts the repeal of sec.sec.83.1, 83.3, 83.5- 83.7, 83.9, 83.11-83.13, 83.15, 83.17, 83.19, 83.21, 83.23, 83.41, 83.43, 83.45, 83.47, and 83.49, concerning contracts for parole supervision service, contracts for airport assistance service, needs assessment, contracting for psychiatric hospital residential services, contracting for residential services, rate setting, request for proposal, start-up funds, contract services standards and requirements, quality assurance, variance/waiver procedures, problem solving mechanism, appeals process, private sector involvement, admission and referral to contract programs, clothing and personal property of youth in contract programs, incident reporting by contract programs, furloughs from contract care programs, and psychopharmacotherapy in contract programs, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10523). The justification for the repeals is the replacement by new rules which encourage more efficient agency operation. The repealed sections will be replaced by new replacement sections proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. 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 December 2, 1996. TRD-9617418 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 CHAPTER 85.Admission and Placement Commitment and Reception 37 TAC sec.sec.85.1, 85.3, 85.5 The Texas Youth Commission (TYC) adopts the repeal of sec.sec.85.1, 85.3, and 85.5, concerning legal requirements for admission, admission process, and assessment/evaluation, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10524). The justification for the repeals is the replacement by new rules which encourage more efficient agency operation. The repealed sections will be replaced by new replacement sections proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. 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 December 2, 1996. TRD-9617419 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 SUBCHAPTER A.Commitment and Reception 37 TAC sec.sec.85.1, 85.3, 85.5 The Texas Youth Commission (TYC) adopts new sec.sec.85.1, 85.3, and 85.5, concerning legal requirements for admission, admission process, and assessment/evaluation as published in the October 29, 1996, issue of the Texas Register (21 TexReg 10667). New sec.85.1 is adopted with a change. The change to sec.85.1 is to refer specifically to the juvenile court as the committing authority rather than generally to the county as the authority. Section 85.3 and sec.85.5 are adopted without changes to the proposed text and will not be republished. The justification for the new sections is the streamlining of the general public interaction with the Texas Youth Commission as a governmental entity as the agency engages in recodifying rules. The new rules will establish TYC document requirements for counties delivering each committed youth to the TYC assessment unit. Youth are accepted during regular working hours at the Marlin Orientation and Assessment Unit in Marlin, Texas. Rules regarding possession of personal items and admission and intake procedures are established. Following intake, youth are assessed and evaluated, then placed as appropriate for their classifications. No comments were received regarding adoption of the new rules. The new rules are adopted under the Human Resources Code, sec.61.0971, which provides the Texas Youth Commission with the authority to examine and make a study of each child committed to it as soon as possible after commitment. sec.85.1.Legal Requirements for Admission. (a) Purpose. The purpose of this rule is to establish documentation required and requested by the Texas Youth Commission from each juvenile court committing youth to TYC. (b) Each youth committed to the Texas Youth Commission (TYC) must be accompanied by legal and supporting documents supplied by the committing court. (c) Upon admission, the following documents are required of the committing court: (1) certified copy of the Order of Commitment; (2) immunization records; (3) Common Application, CCF-002; (4) Detention order(s) (initial and subsequent) for offense(s) which resulted in commitment to TYC; (5) petition which prompted the commitment hearing; (6) the judgment which followed adjudication; (7) Texas Department of Public Safety Sex Offender Registration as required by law; (8) birth certificate for all youth; (9) social history; (10) education records; (11) medical and dental records; (12) any existing psychological and psychiatric reports; (13) pretrial detention time creditable to the youth's sentence; and (14) progressive sanctions deviation worksheet if assigned progressive sanctions level does not equal the progressive sanctions guideline level. (15) when available, the Victim Impact Statement and/or Victim Information form. (d) The TYC intake staff shall review the commitment document to determine if, on its face, it meets all requirements of a valid court order before TYC receives the youth. TYC will not look beyond the document itself for determining its validity. Questions regarding verification of validity should be directed to the legal services department. (e) No youth, under any circumstance, shall be admitted to TYC without a certified copy of the Order of Commitment, immunization records (except for undocumented aliens), and the Common Application. All other documents may be received subsequent to admission. (f) No youth shall be accepted to custody of TYC until TYC staff issues a written receipt to the entity delivering the youth at the designated place of intake accompanied by the required legal documents. 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 December 3, 1996. TRD-9617474 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 Placement Planning 37 TAC sec.sec.85.21, 85.23, 85.25, 85.27, 85.29, 85.30, 85.31, 85.33, 85.35, 85.37, 85.39, 85.40, 85.41, 85.43, 85.45, 85.47, The Texas Youth Commission (TYC) adopts the repeal of sec.sec.85.21, 85.23, 85.25, 85.27, 85.29, 85.30, 85.31, 85.33, 85.35, 85.37, 85.39, 85.40, 85.41, 85.43, 85.45, and 85.47, concerning program assignment system; classification; minimum length of stay; program restriction levels; program completion and movement; involvement of victims; home placement; parole of undocumented nationals; sentenced offender disposition; discharge; temporary admission awaiting permanent placement; temporary admission awaiting transportation; referral/admission to Corsicana Residential Treatment Center; interstate compact for Texas Youth Commission youth; interstate compact for probationers, return of non-delinquent runaways, absconders and escapees; and sex offender registration, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10524). The justification for the repeals is the replacement by new rules which encourage more efficient agency operation. The repealed sections will be replaced by new replacement sections proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. 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 December 2, 1996. TRD-9617420 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 SUBCHAPTER B.Placement Planning 37 TAC sec.sec.85.21, 85.23, 85.25, 85.27, 85.29, 85.37, 85.39, 85.41, 85.43, 85.45, 85.51, 85.61 The Texas Youth Commission (TYC) adopts new sec.sec.85.21, 85.23, 85.25, 85.27, 85.29, 85.37, 85.39, 85.41, 85.43, 85.45, 85.51, and 85.61, concerning program assignment system, classification, minimum length of stay, program restriction levels, program completion and movement, sentenced offender disposition, temporary admission awaiting permanent placement, temporary admission awaiting transportation, home placement, parole of undocumented nationals, interstate compact for TYC youth, and discharge. New sec.85.23 and sec.85.25 are adopted with changes to the proposed text as published in the October 29, 1996, issue of the Texas Register (21 TexReg 10668). The change to the proposed text in sec.85.23 clarifies the extent to which the penal code sections for the offense of burglary applies to TYC's Type B classification assigned to committed youth. The change to the proposed text in sec.85.25 consists of eliminating repetitious and confusing language in the explanation of a minimum period of confinement. New sec.sec.85.21, 85.27, 85.29, 85.37, 85.39, 85.41, 85.43, 85.45, 85.51, and 85.61, are adopted without changes and will not be republished. The justification for the new sections is the streamlining of the general public interaction with the Texas Youth Commission as a governmental entity as the agency engages in recodifying rules. The new rules will establish an administrative system whereby TYC determines where each youth committed to the agency will be assigned, the level of restriction and security required, the minimum length of stay required for each classification, and criteria for movement to other programs. For indeterminate sentenced youth, the classification is based on the offense committed. The greater the severity of the offense the greater the restriction required and the longer the length of stay required. For determinant sentenced youth, classification is always "sentenced offender"; corresponding minimum periods of confinement are consistent with current law. Youth are placed on parole status and returned to the community in accordance with established criteria and law effecting sentenced offender treatment. TYC also establishes procedure whereby youth may be admitted temporarily to TYC facilities to which they are not assigned while awaiting transportation or permanent placement assignment. The homes of youth in TYC jurisdiction are approved for the youths' return unless specific criteria have been met for disapproval. After serving a length of stay in a TYC facility, undocumented nationals are returned to US Immigration and Naturalization Service for return to their countries. TYC complies with rules established for Interstate Compact On Juveniles regarding placement of TYC youth out-of-state and supervision of non Texas youth placed in the TYC system. Indeterminate sentence youth are discharged from TYC jurisdiction by age 21. Determinant sentence youth are discharged in accordance with law. No comments were received regarding adoption of the new rules. The new rules are adopted under the Human Resources Code, sec.61.0975, which provides the Texas Youth Commission with the authority to order the child's confinement under conditions it believes best designed for the child's welfare and the interests of the public. sec.85.23.Classification. (a) Purpose. The purpose of this rule is to establish a system for classifying each youth admitted to TYC which can be consistently applied and ensures consistent management of each youth. (b) Explanation of Terms Used. (1) Classification - the designation assigned each youth based on the youth's offense history, the classifying offense, and a finding regarding extenuating circumstances incident to the classifying offense. A youth who commits an offense while in TYC custody may be administratively reclassified through a Level I hearing. (2) Classifying Offense - the offense on which classification is based. It is the most serious of the relevant offenses documented in the youth's record. Relevant offenses are: (A) on commitment, the committing offense and any offense(s) for which the youth was on probation at the time of the committing offense; or (B) following a level I hearing, the offense(s) found at the hearing. (3) Committing Offense - the most serious of the offenses found at the youth's most recent judicial proceeding. (4) Most Serious Offense - the offense having the most severe consequences attached. The most serious offense is determined according to the following hierarchy, with each subsequent factor being considered only if two or more relevant offenses yield the same result under the preceding factor. If two or more offenses yield the same results through all steps of the hierarchy, determination of the most serious offense is left to the discretion of the staff assigning classification. The most serious offense is: (A) an offense which carries determinate sentence; (B) the offense for which the designated minimum length of stay will produce the longest time in the physical custody of TYC; (C) the offense which requires the highest level of restriction in placement; (D) the offense which carries the most severe criminal penalty; and (E) the most recently adjudicated offense. (5) Federal Offenses - youth who have committed federal offenses and are sent to TYC by Federal courts. If a committing and/or classifying offense is a violation of a federal statute, the offense will be treated as a violation of a state statute which prohibits the same conduct as the relevant federal statute. Federal violations will be identified by the code number assigned to the corresponding substantive state statute preceded by an "F". (c) Classification assignment is based on the policy in effect at the time a youth is classified or is reclassified as appropriate. Classification of youth currently classified shall not change when the criteria for classification changes. (d) Classifications. (1) Sentenced Offender. A sentenced offender is a youth committed to TYC pursuant to sec.54.04(d)(3) or sec.54.05(f) Family Code for offenses committed: (A) prior to January 1, 1996, for: (i) murder, 19.02, all. (ii) capital murder, 19.03, all. (iii) aggravated kidnapping, 20.04, all. (iv) aggravated sexual assault, 22.021, all. (v) deadly assault on a law enforcement officer, corrections officer, or court participant, 22.03. (vi) criminal attempt, 15.01, only if the offense attempted was Capital Murder, (Sec. 19.03). (B) on or after January 1, 1996, for an offense listed in subsection (d)(1)(A) of this section or: (i) sexual assault, 22.011, all. (ii) aggravated assault, 22.02, all. (iii) aggravated robbery, 29.03, all. (iv) injury to a child, elderly individual, or disabled individual, 22.04, first, second or third degree felony only. (v) deadly conduct, 22.05, felony only. (vi) aggravated or first degree controlled substances felony, subchapter D, Chapter 481, Health and Safety Code, aggravated or first degree felony only. (vii) criminal solicitation, 15.03, all. (viii) indecency with a child, 21.11, second degree felony only. (ix) criminal solicitation of a minor, 15.031, all. (x) criminal attempt, 15.01, only if offense attempted was a murder (sec. 19.02), indecency with a child (sec. 21.11(a)(1), aggravated kidnapping (sec. 20.04), sexual assault 22.011(a)(2) upon a child only, aggravated sexual assault (sec. 22.021), aggravated robbery (sec. 29.03), or repeat conviction under Health and Safety Code, 481.134(c), (d), (e), or (f). (xi) habitual felony conduct as defined in Juvenile Justice Code, 51.031. (2) Type A - Violent Offender. A type A violent offender is a youth whose classifying offense is the commission, attempted commission, conspiracy to commit, solicitation or solicitation of a minor to commit one of the offenses listed in this paragraph and who has not been sentenced to commitment in TYC. TYC adopts the Texas Penal Code definition (Title 5) for each offense in its entirety except where TYC policy limits the applicability to the specific subsections or under the conditions named. (A) murder, 19.02, all. (B) capital murder, 19.03, all. (C) sexual assault, 22.011, all. (D) aggravated sexual assault, 22.021, all. (3) Type B - Violent Offender. A type B violent offender is a youth whose classifying offense is the commission, attempted commission, conspiracy to commit, solicitation, or solicitation of a minor to commit one of the offenses listed in this paragraph and who has not been sentenced to commitment in TYC. TYC adopts the Texas Penal Code definition for each offense listed in (A-O) of this subsection in its entirety except where TYC policy limits the applicability to specific subsections or under the conditions named. (A) manslaughter, 19.04, all. (B) kidnapping, 20.03, all. (C) aggravated kidnapping, 20.04, all. (D) indecency with a child, 21.11, second degree felony only. (E) sexual assault, 22.011, all (only for youth classified before July 1, 1996). (F) aggravated assault, 22.02, all. (G) aggravated sexual assault, 22.021, all (only for youth classified. before July 1, 1996). (H) injury to child, elderly or disabled individual, 22.04, first, second or third degree felony only. (I) deadly conduct, 22.05, felony only. (J) aiding suicide, 22.08, felony only. (K) tampering with a consumer product, 22.09, first or second degree felony only. (L) arson, 28.02, all. (M) aggravated robbery, 29.03, all. (N) burglary, 30.02, only with intent to commit any other type A or type B violent offense. (O) intoxication manslaughter, 49.08, all. (P) intentionally participating with six or more persons in conduct at a TYC facility that endangers persons or property and substantially obstructs the performance of facility operations. (Q) intentionally, knowingly, or recklessly causing bodily injury to a TYC: (i) employee; (ii) contract program employee; or (iii) volunteer. (4) Chronic Serious Offender. A chronic serious offender is a youth whose classifying offense is a felony and who has been found to have committed at least one felony in each of at least three separate and distinct due process hearings, where the second felony was committed after the disposition of the first felony and the third felony was committed after the disposition of the second felony. (5) Controlled Substances Dealer. A controlled substances dealer is a youth whose classifying offense is any felony grade offense defined as a manufacture or delivery offense under the Texas Controlled Substances Act, Chapter 481, Health and Safety Code. (6) Firearms Offender. A firearms offender is a youth whose classifying offense involved a finding by the court or TYC hearings examiner that the youth possessed a firearm during the offense. Classifying offenses for this classification are not limited to offenses specified in Chapter 46 of the Texas Penal Code. (7) Violator of CINS Probation (Commitments were allowed prior to January 1, 1996). A violator of CINS probation is a youth who: (A) is committed for violating terms of probation by an act which would not be punishable by imprisonment or confinement in jail if committed by an adult; and (B) was on probation at the time of the probation revocation for no act more serious than Conduct Indicating a Need for Supervision (CINS) as defined in the Texas Family Code, Title 3. (8) General Offender. A general offender is a youth who is not eligible for any other classification. (e) Extenuating Circumstances. (1) A designated classification except sentenced offender may be waived and a less restrictive classification assigned by a TYC hearings examiner at a TYC Level I due process hearing when the hearings examiner finds extenuating circumstances. (2) Extenuating circumstances incident to a violent offense are those facts which indicate that the youth is not a significant danger to the physical or emotional well-being of another. Examples of such facts include, but are not limited to: (A) the youth was an indirect or passive participant in a violent act; (B) the youth set fire to an abandoned vehicle; (C) the youth engaged in consensual sexual intercourse with someone who was capable of appraising the nature of that act and of resisting it. (3) Extenuating circumstances incident to offenses other than violent offenses are those facts which explain a youth's conduct but do not constitute a legally- recognized defense to the conduct. Examples of such facts include, but are not limited to acts in which: (A) the only property involved in the offense was of minimal value and was returned undamaged to its owner; (B) the only bodily injury intended or inflicted by the youth consisted of brief or minor discomfort; (C) the youth's conduct was an impulsive response to perceived provocation and posed no threat to persons or property; (D) the youth was persuaded to participate in the offense by a parent or other authority figure. (4) When extenuating circumstances incident to the classifying offense are found, the designated classification may be waived. sec.85.25.Minimum Length of Stay. (a) Purpose. The purpose of this rule is to establish by policy, a minimum period of time a youth will spend in residential placements (high or medium restriction) having reduced access to the public and which is based on the most serious offense the youth committed. The maximum period of time a youth may spend in residential placement is the total time until he/she reaches age 21. Release from residential placement anytime prior to age 21 is based on the youth's successful completion of release criteria, one of which is the minimum length of time set by the agency. (b) Applicability. (1) Except where specifically named, requirements herein do not apply to sentenced offenders. See (GAP) sec.85.37 of this title (relating to Sentenced Offender Disposition) for additional information. The Texas Youth Commission (TYC) complies with orders of the committing court regarding sentences for youth sentenced to commitment to TYC. (2) A disciplinary assigned length of stay of up to six months may be assigned in accordance with (GAP) sec.95.11 of this title (relating to Disciplinary Transfer/Assigned Minimum Length of Stay Consequences). (c) Explanation of Terms Used. (1) Minimum length of stay (MLS) - the factor in the placement and movement system which is the predetermined minimum period of time a youth will be assigned to live in a residential placement. TYC has established two types of minimum lengths of stay requirements for TYC youth, classification MLS and assigned disciplinary MLS. This rule primarily addresses classification MLS. (2) Minimum period of confinement - the period of time established by law that a youth sentenced to commitment in TYC for offenses occurring on or after January 1, 1996, shall be confined in a TYC residential placement. The minimum period of confinement is the earliest of: (A) completion of the sentence, or (B) 10 years for youth sentenced for capital murder; three years for youth sentenced for an aggravated controlled substance felony or a felony of the first degree; two years for a felony of the second degree; and one year for a felony of the third degree. (3) Classification MLS - a minimum length of stay directly associated with each classification established on initial commitment, for youth recommitted for the commission of a felony or high-risk offense, and for youth found at an administrative level I hearing to have committed a felony or high-risk offense. Classification minimum lengths of stay of youth classified before January 1, 1996 may include creditable time for events occurring prior to commitment. (4) Assigned disciplinary MLS - the minimum length of stay assigned to a youth as a disciplinary consequence for behavior which may occur anytime a youth is in a residential setting. (d) Minimum Length of Stay. (1) Sentenced offenders shall serve the time assessed by the juvenile court, until the earliest of: (A) release approved by the committing court; (B) completion of the sentence; or (C) completion of the minimum period of confinement (for youth committed for acts occurring on or after January 1, 1996 only). (2) Type A violent offenders must complete a minimum of 24 months. (3) Type B violent offenders must complete a minimum length of stay of 12 months. (4) Chronic serious offenders, controlled substances dealers, and firearms offenders must complete a minimum length of stay of twelve months if classified on or after January 1, 1996 or nine months if classified before that date. (5) General offenders must complete a minimum length of stay of nine months if classified on or after January 1, 1996, or six months if classified before that date. (e) Creditable Time. (1) On initial classification, the minimum length of stay shall be counted from the first day a youth reaches any TYC operated or assigned facility. (2) On recommitment: (A) the minimum length of stay shall be counted from the first day a youth reaches any TYC operated or assigned facility, and any incomplete MLS at the time of recommitment is eliminated; or (B) a youth recommitted for the same offense(s) for which a level I or II hearing has already been held shall be given credit toward completion of the new MLS for the time already served as a result of that level I or II hearing. (3) On reclassification, if previous classification MLS: (A) has been completed, the new classification minimum length of stay shall be counted from the date of the most recent due process hearing. (B) has not yet been completed, the new classification minimum length of stay shall be counted from the completion of the previous MLS. (4) After the count begins, all time spent in program, on furlough or in detention or jail (except as a disposition in a criminal case) will be counted toward meeting a minimum length of stay requirement. (5) Time spent as an escapee from a TYC placement or time spent in jail or a court ordered placement in an adult correctional residential program as disposition in a criminal case shall not be counted toward meeting the minimum length of stay requirement. (f) Creditable Time for Sentenced Offenders. (1) On initial classification, the minimum period of confinement shall be counted from the first day a youth reaches any TYC operated or assigned facility. Only time spent in a TYC assigned facility shall be credited toward completion of minimum period of confinement. (2) Sentenced offenders will be credited with days, as assessed by the court, detained in connection with the classifying offense. Time will be credited at the end of the total sentence. (g) Restrictions. (1) All minimum lengths of stay will run consecutively except when a youth is recommitted. (2) Classification MLSs must be completed before any assigned disciplinary MLS begins. (3) Youth may be eligible for transition to medium restriction to complete the minimum length of stay requirement in accordance with (GAP) sec.85.29 of this title (relating to Program Completion and Movement). (h) Waivers and Reductions. (1) The classification minimum length of stay requirement may be reduced by the deputy executive director in extenuating circumstances when it is documented that the minimum length of stay is not justified because of the nature of the youth's classifying offense and offense history. (2) The disciplinary assigned MLS may be reduced in accordance with (GAP) sec.95.11 of this title (relating to Disciplinary Transfer/Assigned Minimum Length of Stay Consequences). 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 December 3, 1996. TRD-9617475 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 CHAPTER 87.Treatment Program Planning 37 TAC sec.sec.87.1, 87.3, 87.5, 87.7, 87.9, 87.11, 87.13, 87.15, 87.17, 87.19, 87.21, 87.23, 87.25, 87.27, 87.29, 87.30 The Texas Youth Commission (TYC) adopts the repeal of sec.sec.87.1, 87.3, 87.5, 87.7, 87.9, 87.11, 87.13, 87.15, 87.17, 87.19, 87.21, 87.23, 87.25, 87.27, 87.29, and 87.30, concerning case planning, levels/phase system in TYC operated facilities, basic treatment program, group counseling, individual counseling, social skills training, special treatment programs, family involvement, commitment to mental health facilities, commitment to Vernon Drug Treatment Center, furloughs, supervision levels in parole home placement, Title IV-E foster care youth, family reintegration of sex offenders, independent living preparation, and subsidized independent living, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10525). The justification for the repeals is the replacement by new rules which encourage more efficient agency operation. The repealed sections will be replaced by new replacement sections proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. 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 December 2, 1996. TRD-9617394 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 SUBCHAPTER A.Program Planning 37 TAC sec.sec. 87.1, 87.3, 87.5, 87.7, 87.15, 87.21, 87.23, 87.33 The Texas Youth Commission (TYC) adopts new sec.sec.87.1, 87.3, 87.5, 87.7, 87.15, 87.21, 87.23, and 87.33, concerning resocialization program, family involvement, furloughs, Title IV-E foster care youth, independent living preparation, subsidized independent living, and supervision levels in parole home placement. New sec.87.1 concerning case planning is adopted with a change to the proposed text consisting of the addition of a reference to another section published in the October 29, 1996, issue of the Texas Register (21 TexReg 10681). Sections 87.3, 87.5, 87.7, 87.15, 87.21, 87.23, and 87.33 are adopted without changes to the proposed text as published and will not be republished. The justification for the new sections is the streamlining of the general public interaction with the Texas Youth Commission as a governmental entity as the agency engages in recodifying rules. The new rules will establish the basic treatment program and various options available for the majority of delinquent youth within the TYC system. An individual case plan is developed for each youth which addresses his or her needs and the services planned for the youth within the resources of the agency. The basic program known as the "resocialization program" is incorporated into each program. The family of each youth is encouraged to become involved in the youth's progressive program as much as possible. Furloughs, for limited purposes, may be allowed when necessary to prepare the youth for eventual return to the community. An independent living preparation program for qualified youth may be sought for youth who will not be returning to their homes. Youth released to the community after serving a required period of time are supervised by parole staff in the community. No comments were received regarding adoption of the new rules. The new rules are adopted under the Human Resources Code, sec.61.0761, which provides the Texas Youth Commission with the authority to develop programs that encourage family involvement in the rehabilitation of the child, sec.61.076 which allows the Texas Youth Commission to require the modes of life and conduct that seem best adapted to fit the child for return to full liberty without danger to the public, and sec.61.081 which allows the Texas Youth Commission to release under supervision any child in its custody. sec.87.1.Case Planning. (a) Purpose. The purpose of this rule is to ensure the case management of each youth is individualized to the extent possible and is based on the youth's need for services. Youth needs are identified and corresponding long-term and short- term objectives are developed within the agency's resources. The resulting case plan is reviewed regularly and revised when necessary. (b) Applicability. The Individualized Case Plan (ICP) for sentenced offenders is developed in accordance with guidelines of this rule as far as possible and within the restrictions of (GAP) sec.85.27 of this title (relating to Sentenced Offender Disposition). (c) Definitions. (1) Case Management System - the standardized process used throughout TYC to ensure that each youth receives fair and appropriate attention and that each youth experiences treatment based on individually identified needs and strengths. (2) Individual Case Plan - the individualized plan for each youth that assesses a youth's needs and strengths, identifies objectives with specific strategies to address both needs and strengths, and is reviewed and adjusted as the youth progresses or as new needs are identified. A document by the same title is used to record and maintain the plan. (3) Primary Service Worker - the generic title given to persons at each TYC program who are assigned the primary responsibility for the case work for individual youth and for the administration of the case management system. (d) An ICP will be developed with and for each youth by the primary service worker. The plan will be periodically updated. The plan will be developed in accordance with the resocialization program and identified needs and must specify measurable objectives, expected outcomes and a means to evaluate progress. See (GAP) sec.87.3 of this title (relating to Resocialization). (e) The ICP will be initiated during the assessment process. (f) The ICP development shall include long and short term objectives and shall be developed with the youth and family when possible. (g) Objectives must be written so that they may be achieved within a period of time no longer than the required minimum length of stay or the expected length of stay at each program. 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 December 2, 1996. TRD-9617538 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 Education Programs 37 TAC sec.sec.87.31, 87.33, 87.35, 87.37 The Texas Youth Commission (TYC) adopts the repeal of sec.sec.87.31, 87.33, 87.35, and 87.37, concerning education administration, basic education, vocational education, and college/technical institute financial assistance, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10526). The justification for the repeals is the replacement by new rules which encourage more efficient agency operation. The repealed sections will be replaced by new replacement sections proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. Issued in Austin, Texas, on December 2, 1996. TRD-9617421 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 Other Programs 37 TAC sec.sec.87.51, 87.53. 87.55, 87.57 The Texas Youth Commission (TYC) adopts the repeal of sec.sec.87.51, 87.53. 87.55, and 87.57, concerning recreation; moral values, worship and religious education; youth orientation; and youth employment and work, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10526). The justification for the repeals is the replacement by new rules which encourage more efficient agency operation. The repealed sections will be replaced by new replacement sections proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. Issued in Austin, Texas, on December 2, 1996. TRD-9617422 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 SUBCHAPTER B.Special Needs Offender Programs 37 TAC sec.sec.87.51, 87.61, 87.63, 87.67, 87.69, 87.71, 87.81, 87.83, 87.91, 87.95 The Texas Youth Commission (TYC) adopts new sec.sec.87.51, 87.61, 87.63, 87.67, 87.69, 87.71, 87.81, 87.83, 87.91, and 87.95, concerning special needs offenders, substance abuse services, main campus - Corsicana Residential Treatment Center, Corsicana stabilization unit, commitment to state mental hospitals, emergency mental health admission, special management and treatment program for assaultive youth, intensive resocialization program, family reintegration of sex offenders, and new treatment programs. New sec.sec.87.61, 87.67, and 87.91 are adopted with changes to the proposed text as published in the October 29, 1996, issue of the Texas Register (21 TexReg 10684). The change in sec.87.61 consists of the addition of a statement clarifying that the actual diagnoses of chemical dependency of a youth committed to TYC will be determined by a licensed psychologist or psychiatrist. Changes in sec.87.67 consist of a clarification that even though every effort is made to move a youth who is in the Corsicana main campus program to another placement prior to his discharge, the youth will be discharged directly from that program if TYC's jurisdiction ends by statute prior to accomplishing a move. The change in sec.87.91 consists of eliminating the catch line in subsection (b) entitled Rules and renumbering the information under that section. New sec.sec.87.51, 87.63, 87.69, 87.71, 87.81, 87.83, and 87.95, are adopted without changes to the proposed text and will not be republished. The justification for the new sections is the streamlining of the general public interaction with the Texas Youth Commission as a governmental entity as the agency engages in recodifying rules. The new sections will provide rules and guidelines for TYC's treatment of offenders with special needs within the resources available. Specialized treatment populations are considered to be youth who are emotionally disturbed offenders, mentally retarded offenders, sex offenders, chemically dependent offenders and/or capital offenders. Youth are assessed and placed in the most appropriate placement within criteria and resources of the agency. TYC provides for clinical management of many youth assessed to be chemically dependent. TYC uses a referral process to assign youth within the system to programs able to treat serious emotionally disturbed youth, some of whom are placed at the Corsicana campus. Some may be committed to the state mental hospitals as necessary or to private hospitals in case of an emergency. Special management programs are provided on the campus of most TYC facilities for consistently assaultive youth. Special release procedures are used when returning sex offenders to their homes. No comments were received regarding adoption of the new rules. The new rules are adopted under the Human Resources Code, sec.61.075, which provides the Texas Youth Commission with the authority to order the child's confinement under conditions it believes best designed for the child's welfare and the interests of the public, and sec.61.076. which provides the Texas Youth Commission with the authority to provide any medical or psychiatric treatment that is necessary. sec.87.61.Substance Abuse Services. (a) Purpose. The purpose of this rule is to provide for the clinical management of chemically dependent youth within the limitations of resources. (b) Applicability. This rule is applicable for services specially funded and staffed as a chemical dependency treatment program. It is not applicable to contracted services. (c) Designated Texas Youth Commission (TYC) operated substance abuse programs provide services consistent with federal and state mandates and guidelines. Specific requirements will be made available in the agency Substance Abuse Program Operating Manual. (1) During the admission process a physician shall complete a physical examination on each youth to determine needle marks, or other indications of alcohol/drug abuse including physical dependence and determine the need for medically supervised detoxification. (2) Every youth shall be administered the Substance Abuse Subtle Screening Inventory (SASSI) at time of admission to TYC. (3) All youth screened as being chemically dependent on the SASSI or those screened as abusers whose casefile contains indicators of extensive drug use shall undergo chemical dependency assessment, by a licensed chemical dependency counselor (LCDC). (4) An actual diagnosis of chemical dependency will be determined by a licensed psychologist or psychiatrist. (5) An objective for the initial Individual Case Plan (ICP) shall be prepared for all chemically dependent youth by the licensed chemical dependency counselor indicating a requirement for successful completion of pretreatment education and placement in an appropriate treatment environment (residential, intensive outpatient, supportive outpatient). In institutions, a multidisciplinary team will develop and implement an individualized treatment plan. Referrals are made to specified community resources when appropriate. (6) Pretreatment and treatment services will be provided in TYC-operated high restriction facilities and in TYC operated community-based treatment programs if related funds are available. (7) All TYC personnel providing chemical dependency treatment services will be licensed chemical dependency counselors (LCDC) or are TCADA approved LCDC interns working under the supervision of an LCDC. (8) Youth will be referred upon recommendation by a licensed chemical dependency counselor to either treatment or continuing chemical dependency care services, as appropriate, upon placement in the community. sec.87.67.Corsicana Stabilization Unit. (a) Purpose. The purpose of this rule is to establish the admission criteria and procedure for evaluation and specialized treatment services for psychiatrically disturbed TYC youth in the Corsicana Stabilization Unit and subsequent treatment at a different site. (b) Applicability. (1) The mental health status review due process procedures are found in (GAP) sec.95.71 of this title (relating to Mental Health Status Review Hearing Procedure). (2) See (GAP) sec.95.55 of this title, (relating to Level II Hearing Procedure). (3) See (GAP) sec.95.51 of this title (relating to Level I Hearing Procedure). (4) For emergency mental health placements, see (GAP) sec.87.71 of this title (relating to Emergency Mental Health Admission). (c) Admissions. (1) Admission Criteria. Youth who may be admitted to the Corsicana Stabilization Unit at the Corsicana Residential Treatment Center are those who meet the following criteria. (A) Youth demonstrates severe dysfunction in behavior, judgment, thinking or mood; and (B) the dysfunction is the result of a current neurological deficit and/or emotional disturbance and/or psychiatric disorder, e.g. psychosis, major affective disorder, organic disorder, or anxiety disorder, and the dysfunction is not the result of a conduct disorder/personality disorder; and (C) the dysfunction presents a risk of serious harm to the youth or others; and (D) the Corsicana Stabilization Unit is the least-restrictive intervention alternative that is appropriate and available to safely meet the treatment needs and to control the dysfunction. (2) Admission Process. (A) Referrals. Referrals must be sent by TYC programs to the centralized placement unit for screening. Complete current psychiatric and psychological evaluations by a licensed psychiatrist and a psychologist must be included in order to be considered. (B) Emergency Placement. If an emergency exists, procedures in (GAP) sec.87.71 of this title (relating to Emergency Mental Health Admission) must be followed. Consistent with emergency criteria, staff may request of the superintendent immediate placement of the youth in the Corsicana Stabilization Unit. On admission, requirements in this policy are effective for all emergency admissions. (3) 96 Hour Admission Review Process. A mental health status review hearing shall be held for all youth within 96 hours of arrival at the unit. If the 96 hour period ends on a Saturday, Sunday or Legal Holiday, the hearing must be held on the next regular working day. The hearing is held to determine whether criteria for unit admission have been met. (A) If the youth is deemed not to be appropriate for admission, he/she is returned to the referring program. (B) If the youth is deemed appropriate for admission, he/she is retained and treated in the program. (d) Program requirements. (1) The program focus will be on stabilization of the psychiatric dysfunction in preparation for resocialization work that will occur at a subsequent placement. (2) The program is housed in a self-contained unit at the TYC Corsicana Residential Treatment Center. (3) An individualized treatment program reflecting treatment goals and objectives shall be developed for and with each youth. (4) The treatment team shall review the youth's progress weekly. (5) By the end of 90 days from the date of the admission due process hearing, a youth shall be returned to the referring source unless an extension becomes effective at that time. (e) Extension of Time Beyond 90 Days to Treat the Psychiatric Dysfunction. (1) Extension Criteria. (A) Youth continues to demonstrate moderate to severe dysfunction in behavior, judgment, thinking or mood; and (B) the dysfunction is the result of a current neurological deficit and/or emotional disturbance and/or psychiatric disorder, e.g. psychosis, major affective disorder, organic disorder, or anxiety disorder, and the dysfunction is not the result of a conduct disorder/personality disorder; and (C) the dysfunction continues to present a risk of harm to the youth or others; and (D) extension is the least restrictive alternative that is appropriate and available to safely meet the treatment needs and to control the dysfunction. (2) Extension Due Process Requirements. (A) The due process required to determine whether extension criteria have been met is: (i) a level I hearing for all youth on parole. Parole is not revoked. (ii) a mental health status review hearing for all nonparole youth. (B) The due process hearing shall be conducted: (i) two weeks immediately preceding the youth's 90th day from the admission hearing unless the youth is being considered for transition out of the unit before the end of the initial 90 day stay. (ii) two weeks immediately preceding the youth's transition for a youth being considered for transition during the initial 90 day stay. (3) The Effect of an Extension. (A) Extension shall be in effect only if extension criteria are found in a due process hearing. (B) An extension granted means that the period of time, beyond the initial 90 day stay, during which a youth may be treated for a psychiatric dysfunction under rules of this policy, shall be extended for up to 12 months from the date of the extension due process hearing. (C) As long as the extension is in effect the youth may be retained in the unit, transitioned to another placement and/or returned to the unit without further hearings. (4) Release and Transitions Options. (A) The treatment team shall determine by majority vote that the youth is ready to leave the stabilization unit. (B) Release options are consistent with the youth's residential placement at referral. (i) Youth residing in their homes or home substitutes on parole status at the time of referral to the unit, shall be transitioned to a placement having a less restrictive environment prior to their return home. The transition placement may be the Corsicana main campus program or a medium restriction placement where the youth will continue to receive mental health treatment. Parole status is not revoked by any process in this policy. (ii) Youth residing in any other placement at the time of referral to the unit, will be returned directly from the unit to the referring placement without transition. Exceptions to allow transition to the Corsicana main campus may be made by the stabilization unit treatment team but only if return is contraindicated. (C) The extension of time to treat the psychiatric dysfunction shall be terminated when placement is no longer needed for the primary purpose of treatment of the dysfunction. (D) Following termination, future placement decisions, including the youth's return to his home parole placement, are made in accordance with other applicable policies and procedures. (E) No youth may be discharged from TYC jurisdiction directly from the Corsicana Stabilization Unit unless TYC's jurisdiction ends by statute. (f) Professional Reviews During the Extension Period. (1) A professional review shall be conducted, regardless of placement, every 30 days following the extension due process hearing, for up to 12 months to determine whether extension criteria continues to be met. (2) The review shall be conducted in conjunction with the individual Case Plan (ICP) review and documented by mental health professionals in the youth's placement. sec.87.91.Family Reintegration of Sex Offenders. (a) Purpose. The purpose of this rule is to provide for some protection of the victim through procedures for reintegration of documented sex offenders who return home when the offender's victim or a potential victim lives in the home. (b) The offender and the victim and offender's family must have received treatment specific to the sexual offense prior to the youth's return to his/her home such that: (1) the family demonstrates knowledge and understanding of the sex offender's behavior; (2) the family agrees to implement specific strategies to ensure the ongoing safety of the victim or potential victims; (3) the victim has demonstrated sufficient progress in therapy to be ready for the offender to return home. See (GAP) sec.81.13 of this title (relating to Involvement of Victims); (4) the offender has demonstrated sufficient progress in therapy to be ready for the offender to return home. See (GAP), sec.81.13 of this title (relating to Involvement of Victims); and (c) Direct contact must occur between the therapists in which a specific reintegration plan is defined and mutually agreed upon. (d) At a minimum, the reintegration plan must include at least one face-to-face contact between offender and victim facilitated by one or both therapists and not in the home. (e) Based upon a successful initial meeting between offender and victim, an overnight furlough is arranged. (f) Actual home placement should occur only after mutual agreement between PSW(s), therapists, victim and offender that trial visits have been successful. (g) There must be a specific plan for continued treatment and supervision for the offender in the community. 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 December 4, 1996. TRD-9617537 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 Basic Care Services 37 TAC sec.sec.87.71, 87.73, 87.75 The Texas Youth Commission (TYC) adopts the repeal of sec.sec.87.71, 87.73, and 87.75, concerning living environment, clothing, and food and nutrition, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10527). The justification for the repeals is the replacement by new rules which encourage more efficient agency operation. The repealed sections will be replaced by new replacement sections proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. 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 December 2, 1996. TRD-9617423 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 Health Care Services 37 TAC sec.sec.87.91, 87.93, 87.95, 87.97, 87.99, 87.101, 87.103, 87.105, 87.107, 87.109. 87.111, 87.113 The Texas Youth Commission (TYC) adopts the repeal of sec.sec.87.91, 87.93, 87.95, 87.97, 87.99, 87.101, 87.103, 87.105, 87.107, 87.109. 87.111, and 87.113, concerning medical consent, medical care, medical expenditures, health provider's fee schedule, suicide alert, medical alert, psychopharmacotherapy, pharmaceuticals, family planning services, pregnancy and abortion, acquired immune deficiency syndrome, and substance abuse services, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10527). The justification for the repeals is the replacement by new rules which encourage more efficient agency operation. The repealed sections will be replaced by new replacement sections proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. 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 December 2, 1996. TRD-9617424 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 Volunteer Services 37 TAC sec.87.141 The Texas Youth Commission (TYC) adopts the repeal of sec.87.141, concerning volunteer services, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10527). The justification for the repeal is the replacement by a new rule which will encourage more efficient agency operation. The repealed section will be replaced by a new replacement section proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. 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 December 2, 1996. TRD-9617425 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 CHAPTER 88.Special Management Programs 37 TAC sec.sec.88.1, 88.3, 88.5 The Texas Youth Commission (TYC) adopts the repeal of sec.sec.88.1, 88.3, and 88.5, concerning special management and treatment program for assaultive youth, intensive resocialization program, and special management programs, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10528). The justification for the repeals is the replacement by new rules which encourage more efficient agency operation. The repealed sections will be replaced by new replacement sections proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. 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 December 2, 1996. TRD-9617426 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 CHAPTER 89.Youth Rights and Remedies 37 TAC sec.sec.89.1, 89.3, 89.5, 89.7, 89.15, 89.25 The Texas Youth Commission (TYC) adopts the repeal of sec.sec.89.1, 89.3, 89.5, 89.7, 89.15, and 89.25, concerning basic youth rights, access to attorneys and courts, youth use of telephone, youth complaint resolution system, alleged mistreatment system, and appeal to executive director, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10528). The justification for the repeals is the replacement by new rules which encourage more efficient agency operation. The repealed sections will be replaced by new replacement sections proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. 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 December 2, 1996. TRD-9617427 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 CHAPTER 91.Discipline and Control Disciplinary Practices 37 TAC sec.sec.91.1, 91.3, 91.5, 91.7, 91.9-91.11, 91.13 The Texas Youth Commission (TYC) adopts the repeal of sec.sec.91.1, 91.3, 91.5, 91.7, 91.9-91.11, and 91.13, concerning discipline system overview; rules of conduct, contraband and dress; referral to criminal court; reclassification consequence; parole revocation consequences; disciplinary transfer/assigned minimum length of stay consequence; and on-site disciplinary consequences, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10529). The justification for the repeals is the replacement by new rules which encourage more efficient agency operation. The repealed sections will be replaced by new replacement sections proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. 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 December 2, 1996. TRD-9617428 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 Due Process Hearings Procedures 37 TAC sec.sec.91.31-91.33, 91.35, 91.37 The Texas Youth Commission (TYC) adopts the repeal of sec.sec.91.31-91.33, 91.35, and 91.37, concerning Level I hearing procedure, Level I hearing by telephone, Level II hearing procedure, Level III hearing procedure, and Level IV hearing procedure, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10530). The justification for the repeals is the replacement by new rules which encourage more efficient agency operation. The repealed sections will be replaced by new replacement sections proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. 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 December 2, 1996. TRD-9617403 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 Control 37 TAC sec.sec.91.51, 91.53, 91.55-91.57, 91.59, 91.61, 91.63, 91.65, 91.67, 91.69, 91.75 The Texas Youth Commission (TYC) adopts the repeal of sec.sec.91.51, 91.53, 91.55-91.57, 91.59, 91.61, 91.63, 91.65, 91.67, 91.69, and 91.75, concerning facility security, search, escape and apprehension, custody and supervision rating, restriction of youth out of control, use of force, use of chemical agents, mechanical restraint equipment, security unit, isolation, detention, and riot control, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10530). The justification for the repeals is the replacement by new rules which encourage more efficient agency operation. The repealed sections will be replaced by new replacement sections proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. 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 December 2, 1996. TRD-9617404 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 Peace Officers 37 TAC sec.sec.91.81, 91.83, 91.85, 91.87 The Texas Youth Commission (TYC) adopts the repeal of sec.sec.91.81, 91.83, 91.85, and 91.87, concerning peace officer commissioning, peace officer jurisdiction, peace officer continuum of force, and peace officer firearms management, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10531). The justification for the repeals is the replacement by new rules which encourage more efficient agency operation. The repealed sections will be replaced by new replacement sections proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. 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 December 2, 1996. TRD-9617405 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 CHAPTER 93.General Provisions Death of a Youth 37 TAC sec.93.1 The Texas Youth Commission (TYC) adopts the repeal of sec.93.1, concerning death of a youth, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10531). The justification for the repeal is the replacement by a new rule which encourages more efficient agency operation. The repealed section will be replaced by a new replacement section proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. 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 December 2, 1996. TRD-9617406 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 Youth Property 37 TAC sec.93.21, sec.93.23 The Texas Youth Commission (TYC) adopts the repeal of sec.93.21 and sec.93.23, concerning youth personal property and disposition of unauthorized items seized, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10531). The justification for the repeals is the replacement by new rules which encourage more efficient agency operation. The repealed sections will be replaced by new replacement sections proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. 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 December 2, 1996. TRD-9617407 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 Transportation of Youth 37 TAC sec.93.31 The Texas Youth Commission (TYC) adopts the repeal of sec.93.31, concerning transportation of youth, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10532). The justification for the repeal is the replacement by a new rule which encourages more efficient agency operation. The repealed section will be replaced by a new replacement section proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. 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 December 2, 1996. TRD-9617408 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 Records, Reports and Forms 37 TAC sec.sec.93.51, 93.53, 93.55, 93.57-93.59, 93.61, 93.75 The Texas Youth Commission (TYC) adopts the repeal of sec.sec.93.51, 93.53, 93.55, 93.57-93.59, 93.61, and 93.75, concerning control of child care forms, incident report, daily living records, access to youth records, confidentiality regarding youth alcohol and drug abuse, youth masterfile records, youth records disposition, and population management, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10532). The justification for the repeals is the replacement by new rules which encourage more efficient agency operation. The repealed sections will be replaced by new replacement sections proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. 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 December 2, 1996. TRD-9617409 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 CHAPTER 95.Dependent and Neglected Youth 37 TAC sec.95.1 The Texas Youth Commission (TYC) adopts the repeal of sec.95.1, concerning responsibility for dependent and neglected youth, without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10533). The justification for the repeal is the replacement by a new rule which encourages more efficient agency operation. The repealed section will be replaced by a new replacement section proposed to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. 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 December 2, 1996. TRD-9617410 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 25, 1996 For further information, please call: (512) 424-6244 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 19. Nursing Facility Requirements for Licensure and Medicaid Certification The Texas Department of Human Services (DHS) adopts amendments to sec.sec.19.101, 19.1807, 19.2412, 19.2413, and new 19.1812. Sections 19.1807, 19.2412, and 19.2413 are adopted without changes to the proposed text as published in the October 11, 1996, issue of the Texas Register (21 TexReg 9791), and the text will not be republished. Section 19.101 and sec.19.1812 are adopted with changes. Justification for the amendments and new section is a clear explanation of how the Texas Index for Level of Effort (TILE) classification system is implemented and an improved ability of nursing facilities (NF) to properly assess Medicaid NF residents for payment purposes. The amendments and new section will function by specifying criteria which must be met to qualify for the rehabilitation/restorative payment group (TILE 202); explaining how TILE classifications are determined and the process for reviewing TILE levels, including requirements for notification prior to a review, opportunities for providers to present additional documentation, and clarification regarding informal reconsiderations and formal appeals; and specifying a TILE error rate (20%) which may result in corrective action. The department received comments from the Executive Council of Physical Therapy and Occupational Therapy Examiners, the Texas Healthcare Association, and the Texas Association of Homes and Services for the Aging. Comment: The definition of Tile 202 restorative nursing should include training in self-feeding. Response: The department agrees and has made the change in the second sentence of the definition in sec.19.101. TILE 202 restorative nursing - nursing care and practices, based on a plan of care developed by the restorative team, designed to maintain or improve on goals achieved during physical or occupational therapy. Examples of TILE 202 restorative nursing include training and skill practice in self-feeding, bed mobility, transfers, ambulation, dressing or grooming and active range of motion. Comment: Facilities should not be required to use the department form, if they have one with the same information. Response: The department agrees and has changed the rule language at sec.19.1812(3)(B)(ii)(V), accordingly. Comment: The rules at sec.19.1812 addressing restorative nursing may conflict with the rules governing the practice of physical and occupational therapy in Texas. They create an expectation that licensed therapy personnel will sign off on services that are neither provided nor supervised by licensees. Response: In response to comment, the department has changed the language at sec.19.1812(3)(B)(ii) to read: "The TILE 202 restorative nursing must . . . be supported by Form 3643, Restorative Nursing Care Program, or similar form containing the same elements, which must document each restorative session and the recipient's response to the restorative plan through a weekly note by the nursing or therapy staff (as appropriate); and a written monthly review by the licensed nursing staff or, if services were supervised or delivered by a licensed therapist, a licensed therapist. SUBCHAPTER B. Definitions 40 TAC sec.19.101 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs, and under Texas Government Code sec.531.021, which provides the Health and Human Services 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. sec.19.101. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Therapy week - A seven-day period beginning the first day rehabilitation therapy or restorative nursing care is given. All subsequent therapy weeks for a particular individual will begin on that day of the week. TILE 202 restorative nursing - Nursing care and practices, based on a plan of care developed by the restorative team, designed to maintain or improve on goals achieved during physical or occupational therapy. Examples of TILE 202 restorative nursing include training and skill practice in self-feeding, bed mobility, transfers, ambulation, dressing or grooming, and active range of motion. TILE error - Inaccuracies in a CARE form assessment of a Medicaid recipient which result in an incorrect TILE classification. 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 December 4, 1996. TRD-9617506 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: January 15, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER S. Reimbursement Methodology for Nursing Facilities 40 TAC sec.19.1807, sec.19.1812 The amendment and new section are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs, and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment and new section implement the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. sec.19.1812. Case Mix Classification System. The Case mix classification system is defined in terms of recipient condition, functional performance in activities of daily living (ADL), and level of staff intervention. The classification system is divided into four clinical categories which are further subdivided based on ADL scores that measure functional performance for eating, transferring, and toileting. The combination of clinical categories and ADL measurements yields an array of 11 Texas Index for Level of Effort (TILE) case-mix classifications. (1) Assessment period. Completion of the Client Assessment Review and Evaluation (CARE) form for assignment of a clinical category or ADL score must be based on the recipient's status in the facility during four weeks immediately preceding the assessment date, except in any of the following instances: (A) If the recipient has experienced a change in clinical or functional status during the past four weeks and the change appears permanent, the assessment is made on the current (changed) status. (B) If the recipient has been admitted or readmitted to a facility during the past four weeks, the assessment is based on the status since admission or readmission. (C) The condition or event which precipitates the need for rehabilitative therapy/restorative nursing may have occurred no more than six months prior to the assessment period. An admission or transfer into a facility could qualify as an event. (2) Documentation. The documentation in the clinical record must be descriptive and quantitative to allow the accurate completion of the CARE form items relating to the recipient's condition(s), treatment(s), and the ADLs of eating, transferring, and toileting. (A) In the absence of required facility documentation, the Texas Department of Human Services (DHS) nurse reviewers will use available data, staff interviews, and nursing observation to assign ADL scores. (B) The required documentation must appear in the clinical record during the assessment period to qualify for a clinical category. Lack of documentation will result in a change to an assessment item for a clinical category. (C) Lack of, conflicting, or altered documentation could be the basis for an adjustment in TILE. (D) Suspected fraudulent documentation, such as falsified or fabricated medical records, will result in a referral for investigation to the Medicaid Provider Sanctions Division of the Health and Human Services Commission, as required as part of the state's methods for identification, investigation and referral for fraud under chapter 79, Subchapter V (relating to Fraud or Abuse Involving Medical Providers) and 42 CFR, Part 455 (relating to Program Integrity: Medicaid). (3) Clinical categories. Each recipient is assigned to one of the following four clinical categories based on qualifying conditions or treatments. (A) The heavy-care group. To qualify for the heavy-care clinical group, a recipient must have at least one of the following conditions or be receiving at least one of the following treatments, with supporting documentation in the clinical record, and the recipient must have a total ADL score of at least six out of a possible nine. (i) Coma. Persistent unconsciousness and unresponsiveness from which a resident cannot be aroused must be documented in the assessment period. (ii) Quadriplegia. Neurologic disorder causing paralysis of the four extremities, excluding loss of movement caused solely by contractures. Paralysis is defined as loss of power of voluntary movement in a muscle through injury or disease of its nerve supply. A description of the recipient's functional abilities and limitations must be documented in the clinical record in the assessment period. (iii) Stage III or IV decubitus with physician-ordered decubitus care and/or wound dressings twice a day. Decubitus covered by eschar is considered Stage IV. Decubitus must be described and care/dressings must be documented in the assessment period. (iv) Non-oral administration of 60% or more of the recipient's nourishment. Times, amount, and types of feeding must be documented in the assessment period. (v) Daily oral or nasal suctioning, which must be documented daily in the assessment period. (vi) Daily tracheostomy care or suctioning, excluding self-care, which must be documented daily in the assessment period. (B) The rehabilitation/restorative group. To qualify for the rehabilitation/restorative clinical group, a recipient must receive TILE 202 restorative nursing care as follow-up to rehabilitation therapy. The TILE 202 restorative nursing and rehabilitation therapy must meet the following criteria with supporting documentation in the clinical record. (i) The rehabilitation therapy must be: (I) physical or occupational therapy, ordered by a physician, and provided by a licensed therapist or by certified or licensed occupational or physical therapy assistants (COTA\LPTA) under the supervision of a licensed therapist. Positioning, splinting, decubitus ulcer care, and training nursing staff (as in a functional maintenance program) are excluded from the TILE 202, even if provided by an occupational therapist or physical therapist; (II) initiated due to an identifiable, documented event, i.e., an illness, injury or physical change or an exacerbation of a chronic illness in the past six months with an associated change in ADL functioning. The functional change must be documented through one of the following: (-a-) a description of the event or illness and the recipient's functional status before and after the event; or, (-b-) completion of a Minimum Data Set 2.0 Significant Change and an updated care plan; (III) expected to result in the recipient's making significant, measurable, functional progress, which must be documented in the therapy goals; (IV) provided on a one-to-one basis three times per therapy week for at least two therapy weeks; and (V) reimbursed by Medicare, Medicaid rehabilitative services, or another third party payor. (ii) The TILE 202 restorative nursing must: (I) be provided as part of a restorative care plan, based upon the therapist's written plan of care and developed by the restorative team, which must include the therapist and a registered nurse; (II) begin during the assessment period; (III) begin within 14 days of the therapist's written restorative plan of care; (IV) be provided for a minimum of 24 sessions within eight therapy weeks, and must continue as long as clinically indicated; and (V) be supported by a Restorative Nursing Care Program form, or similar form containing the same elements, which must document each restorative session and the recipient's response to the restorative plan through: (-a-) a weekly note by the nursing or therapy staff (as appropriate); and (-b-) a written monthly review by the licensed nursing staff or, if services were supervised or delivered by a licensed therapist, a licensed therapist. (iii) A recipient will be considered to be properly classified in this clinical group if all criteria in clauses (i) and (ii) of this subparagraph are met except clause (i)(IV) and (V) of this subparagraph, which must be met within three months of the date of assessment; (iv) Payment will be recouped on recipients who do not meet TILE 202 restorative nursing criteria. (C) The clinically unstable group. To qualify for the clinically unstable group, a recipient must have at least one of the following conditions during the assessment period, with the exception of an amputation, which must have occurred in the six months preceding the assessment date, or be receiving at least one of the following treatments during the assessment period. (i) Recent amputation of arms, legs, or parts thereof in the six months preceding the assessment date. Date and site of amputation must be documented in the clinical record. (ii) Seizures, which occurred in the facility, in the assessment period. A description of the seizure and nursing interventions must be documented in the clinical record. (iii) Dehydration with documented intake/output monitoring (including frequency and amounts of output) on at least two shifts per day. Dehydration that was diagnosed, treated, and resolved outside the facility and is no longer symptomatic is excluded. The signs, symptoms, interventions, and measures taken to prevent recurrence must be documented in the assessment period. (iv) Acute, symptomatic urinary tract infection (UTI) with a documented intake and output (including frequency and amounts of output) on three shifts a day. UTIs that were diagnosed, treated and resolved outside the facility and are no longer symptomatic and UTIs identified by urinalysis alone are excluded. The signs, symptoms, interventions and measures taken to prevent recurrence must be documented in the assessment period. (v) Incontinence or a foley catheter, with an individualized bowel or bladder rehabilitation program requiring staff intervention at least three times per day. The program must assess the cause of the incontinence and the rehabilitative potential, and document the interventions and outcomes. The care plan must include the individualized goals and approaches that reflect both the resident and nursing participation in the process. Frequency of staff intervention must be documented. (vi) Daily oxygen administration, which must be documented daily in the assessment period. (vii) Respiratory therapy, ordered by a physician, performed by licensed nursing staff or a respiratory therapist, received at least three times per day, and documented in the assessment period. Respiratory therapy includes nebulizers, percussion, cupping, postural drainage, updrafts, and intermittent positive pressure breathing (IPPB) treatments, but excludes inhalers. (viii) Wound dressing applied to an open wound at least two times per day, excluding simple skin tears and closed abrasions. A description of the wound and the treatment, including frequency, must be documented in the assessment period. (D) The clinically stable group. This clinical group includes all recipients who do not qualify clinically for the heavy-care, rehabilitation/restorative, or clinically unstable group, and who have an ADL score between 3 and 9. The clinically stable group includes a mental/behavioral condition subgroup. A recipient qualifies for this subgroup if: (i) they have an ADL score of exactly three; and (ii) they have at least one of the following cognitive or behavioral characteristics: (I) incoherent/frequent disorientation requiring daily staff intervention. Orientation problems must be described in the clinical record in the assessment period, including the staff intervention required and its frequency; or (II) daily disruptive or aggressive behavior, requiring immediate staff intervention. The behaviors must be described in the clinical record, in the assessment period, including the frequency and the required staff intervention. (4) Computation of the ADL scale. The ADL scale is used to assess recipients' daily functional abilities in eating, transferring and toileting. The facility nurse assessors rate these activities with a value of one to five on the CARE form. The CARE form values are recoded by DHS into a three-point system. The recoding results in points that range from one to three for each item and totals from three to nine for all three items. A recipient's total points for all three ADLs are used to determine case-mix classifications within the clinical categories. The ADLs and their corresponding points on the TILE nine-point scale are: (A) Transferring, or the process of moving between positions, such as to or from a bed, a chair, or a standing position, but excluding to and from the toilet. (i) One TILE point is given for recipients rated as: (I) Independent; no staff assistance required, but recipient may use equipment such as railings, trapeze, etc. (II) Pro re nata (PRN); recipient requires PRN assistance for transfers. (ii) Two TILE points are given for recipients rated as "one to transfer;" requires one person continuously for physical or verbal assist on 60% or more of the transfers. When assistance is required and for what reason must be documented in the assessment period. (iii) Three TILE points are given for recipients rated as: (I) Two to transfer; requires assistance of two or more staff during the entire activity on 60% or more of the transfers. When assistance is required and for what reason must be documented in the assessment period. (II) Not Transferred; may be transferred to a stretcher or chair once a week or less, excluding transfers to bath or toilet. (B) Eating, including the use of an enteral or parenteral tube, but excluding tray set up and food preparation. (i) One TILE point is given for recipients rated as: (I) Independent or recipient has chosen not to receive nutrition. (II) Intermittent assistance; requires verbal or physical assistance less than 60% of the time. (ii) Two TILE points are given for recipients rated as: (I) Being trained to feed themselves. An assessment of the retraining potential and a description of the training program must be documented in the clinical record in the assessment period. The retraining program must include a minimum of training at two meals per day. (II) Requiring assistance to syringe or spoon feed for 60% or more of the time. The type of assistance, when the assistance is required, and for what reason must be documented in the clinical record. (iii) Three TILE points are given for recipients rated as receiving non-oral feedings for 60% or more of the recipient's nutrition using a tube such as a naso-gastric tube, gastrostromy tube, percutaneous endoscopic gastrostromy tube, or administration of total parenteral nutrition via a central line. The frequency, amounts, routes, and times the non-oral feedings were administered must be documented in the clinical record. (C) Toileting, or the process of elimination including the use of a bedpan, urinal, bedside commode, or toilet, or ostomy or incontinent care. (i) One TILE point is given for recipients rated as: (I) Independent, including the use of special equipment or performing of own incontinent care, self-catheterization, ostomy care. (II) Requires assistance but can be left alone for privacy. Assistance may include transferring on and off the commode, cleansing after elimination, adjusting clothing, or washing hands. (ii) Two TILE points are given for recipients rated as incontinent or having an indwelling catheter, including staff-administered ostomy care, incontinence care using protective padding, incontinence briefs, changing clothes, or a propped urinal. A description of what staff are required to do 60% or more of the time must be documented in the clinical record. (iii) Three TILE points will be given for recipients rated as: (I) Requiring physical or verbal assist or supervision during entire toileting process, excluding incontinent care, and cannot be left alone. The functional, medical, or behavioral reason the recipient cannot be left alone must be documented in the clinical record in the assessment period. (II) Receiving scheduled toileting by the staff every two hours during waking hours, or more often if needed by the resident, as incontinence management. Recipient does not initiate process and stays dry 60% or more of the time as the result of staff-initiated scheduled toileting. A description of staff actions and whether the resident was wet or dry each time he/she was taken to the toilet must be documented in the clinical record in the assessment period. Recipients who receive in and out catheterization by the staff two or more times each day are included in this category. (5) Special cases. A recipient who qualifies for more than one of the 11 TILE case-mix groups is classified in the group with the highest case-mix index and associated per diem rate. If a provider incorrectly or incompletely reports data necessary for TILE determination, the recipient is temporarily classified in the default group until the data are corrected. (6) Case-mix classifications. Case-mix classifications are determined by the clinical group in combination with the ADL score as follows: (A) TILE 201; heavy care and an ADL score of 8-9; (B) TILE 203; heavy care and an ADL score of 6-7; (C) TILE 202; rehabilitation and an ADL score of at least 3; (D) TILE 204; clinically unstable and an ADL score of 7-9; (E) TILE 205; clinically stable and an ADL score of 7-9; (F) TILE 206; clinically unstable and an ADL score of 4-6; (G) TILE 207; clinically stable and an ADL score of 5-6; (H) TILE 208; clinically unstable and an ADL score of 3; (I) TILE 209; clinically stable and an ADL score of 4; (J) TILE 210; clinically stable, an ADL score of exactly 3, and includes a mental/behavioral subcategory; (K) TILE 211; clinically stable and an ADL score of 3 (L) Default TILE; provider incorrectly or incompletely reports data necessary for TILE determination. (7) Required signatures. The assessment form must be signed by the director of nurses or the acting director of nurses and the facility nurse assessor, one of whom has received TILE training, as required by sec.19.2412 of this title (relating to Texas Index for Level of Effort (TILE) Assessments). These signatures certify the information claimed is accurate and complete and subject to penalties for falsification, as provided in 42 Code of Federal Regulations, Part 1003. 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 December 4, 1996. TRD-9617507 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: January 15, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER Y. Medical Review and Re-evaluation 40 TAC sec.19.2412, sec.19.2413 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs, and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments implement 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 December 4, 1996. TRD-9617508 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: January 15, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 438-3765