ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 4. AGRICULTURE PART I. Texas Department of Agriculture CHAPTER 22.Nursery Products and Floral Items 4 TAC sec.22.3 The Texas Department of Agriculture (the department) adopts an amendment to sec.22.3, concerning Nursery/Floral Registration Classifications and Fees, without changes to the proposed text as published in the December 27, 1996, issue of the Texas Register (21 TexReg 12517). The amendment is proposed in order to clarify language in the current regulations and provide additional information to the public regarding registration requirements and procedures to follow in complying with the regulations. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, sec.71.042, which provides the Texas Department of Agriculture the authority to establish rules necessary for the immunity and protection of plants from diseases and insect pests. 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 February 3, 1997. TRD-9701510 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: February 24, 1997 Proposal publication date: December 27, 1996 For further information, please call: (512) 463-7583 TITLE 16. ECONOMIC REGULATION PART I. Railroad Commission of Texas CHAPTER 9.Liquefied Petroleum Gas Division The Railroad Commission of Texas adopts the simultaneous repeal and proposal of new sec.9.183, relating to uniform protection standards, without changes to the version published in the November 22, 1996, Texas Register (21 TexReg 11338). Section 9.183 describes the protection required for LP-gas transfer systems and storage containers, including fencing, guardrails, signs and lettering, and storage specifications. The adoption of the simultaneous repeal and new rule will allow some nonsubstantive reorganization of the rule to provide better clarity and a more logical structure. The substantive changes adopted are in subsection (c)(2) and (l)(2)(A) and (B), in which the wording "capped on top or otherwise protected to prevent the entrance of water or debris into the guardpost" is added to standardize the guardrail requirements throughout the section and to allow alternative forms of protection other than capping; in subsections (i), (l), (m) and (n), in which the wording "or forklift" is added to clarify which requirements also apply to forklift containers; in subsection (j), in which the wording "or otherwise secured" is added to allow methods of attachment equal to tack welding; and in subsection (o)(2), in which the reference to "water capacity" is changed to "LP-gas capacity" to correct a clerical error from an earlier rulemaking regarding this section. The commission received no comments on the proposal. SUBCHAPTER B.Basic Rules 16 TAC sec.9.183 The repeal is adopted under the Texas Natural Resources Code, sec.113.051, which authorizes the commission to adopt rules relating to any and all aspects or phases of the LP- gas industry that will protect or tend to protect the health, welfare, and safety of the general public. The Texas Natural Resources Code, sec.113.051, is affected by the adopted repeal and new section. 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 February 4, 1997. TRD-9701547 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: February 25, 1997 Proposal publication date: November 22, 1996 For further information, please call: (512) 463-7008 The new section is adopted under the Texas Natural Resources Code, sec.113.051, which authorizes the commission to adopt rules relating to any and all aspects or phases of the LP- gas industry that will protect or tend to protect the health, welfare, and safety of the general public. The Texas Natural Resources Code, sec.113.051, is affected by the adopted repeal and new section. 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 February 4, 1997. TRD-9701548 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: February 25, 1997 Proposal publication date: November 22, 1996 For further information, please call: (512) 463-7008 16 TAC sec.9.184 The Railroad Commission of Texas adopts amendments to sec.9.184, relating to uniform safety requirements, without changes to the version published in the November 22, 1996, Texas Register (21 TexReg 11341). Section 9.184 describes safety requirements for installations, including general equipment and procedures, valves, and pumps. The commission adopts clarifications in subsections (a)(11) and (b)(2), and new subsection (a)(13). Specifically, the adopted amendments in (a)(11) clarify requirements for installations with vapor return hoses. New subsection (a)(13) specifies when and what types of containers may be stacked during storage; subsection (a)(13) through (18) are renumbered, and references to a subchapter and rule number in current (a)(13) are corrected. Adopted amendments to (b)(2) clarify requirements for hydrostatic relief valves and specify the different requirements for stationary installations and transports; the adopted amendments correspond to U.S. Department of Transportation requirements, and the clarification eliminates an overly restrictive requirement for transports by expanding the range for the hydrostatic relief valve pressure setting. The commission received no comments on the proposal. The amendment is adopted under the Texas Natural Resources Code, sec.113.051, which authorizes the commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public. The Texas Natural Resources Code, sec.113.051, is affected by this adoption. 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 February 4, 1997. TRD-9701549 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: February 25, 1997 Proposal publication date: November 22, 1996 For further information, please call: (512) 463-7008 PART VI. Texas Motor Vehicle Commission CHAPTER 103. General Rules 16 TAC sec.103.9 The Texas Motor Vehicle Board adopts new sec.103.9, concerning manufacturer/distributor verification of franchise, without changes to the proposed text as published in the December 6, 1996, issue of the Texas Register (21 TexReg 11693). The new section is being adopted to improve the Motor Vehicle Division's ability to ensure that new applicants are authorized by manufacturers/distributors to carry or relocate a particular line of vehicle as required by sec.4.02(a) of the Texas Motor Vehicle Commission Code. The new rule provides that an applicant for a new motor vehicle dealer's license must submit copies of all franchise agreements reflecting the nature of those agreements, or until copies are available, allowing the substitution of a separate form approved by the division, titled "Verification of Franchise". The new section further requires manufacturer/distributor approval of a dealer relocation be submitted to the Motor Vehicle Division on a "Verification of Relocation" form approved by the division. No written comments were received on the proposed section. A public hearing for the purpose of receiving comments was held on January 16, 1997. Testimony in support of the proposed rule were received from Heidi Jackson, Assistant Director - Licensing, Motor Vehicle Division, and Karen Coffey on behalf of the Texas Automobile Dealers Association. No comments were received opposing the proposed section. The Board considered comments supporting the proposal because it will prevent conditions being attached to a dealer who will be a franchisee. The Board also received staff comment about the current situation, where the Motor Vehicle Division has accepted a letter of intent and a dealer's assurance that he intended to comply with the terms of the letter of intent as evidence of a franchise. Letters of intent are becoming more provisional and less of a promise, and it is difficult for the staff to ascertain whether the letter of intent is actually evidence of a franchise agreement. The new section is adopted under sec.3.06 of the Texas Motor Vehicle Commission Code, Article 4413(36) and (36a), Texas Revised Civil Statutes, which provides the Board with the authority to adopt rules necessary and convenient to effectuate the provisions of the Code and to govern practice and procedure before the agency. 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 February 4, 1997. TRD-9701537 Brett Bray Director, Motor Vehicle Division Texas Motor Vehicle Commission Effective date: February 25, 1997 Proposal publication date: December 6, 1996 For further information, please call: (512) 463-8630 TITLE 22. EXAMINING BOARDS PART VIII. Texas Appraiser Licensing and Certification Board CHAPTER 151.Practice and Procedure 22 TAC sec.sec.151.1-151.30 The Texas Appraiser Licensing and Certification Board adopts the repeal of 22 TAC Chapter 151, Rules Relating to Professional Conduct and Ethics, including sec.151.1, Definitions; sec.151.2, Object of Rules; sec.151.3, Scope of Rules; sec.151.4, Filing of Documents; sec.151.5, Computation of Time; sec.151.6, Motions for Postponement, Continuance, Withdrawal or Dismissal; sec.151.7, Conduct and Decorum; sec.151,8, Petition for Declaratory Rulings; sec.151.9, Request for Advisory Opinions; sec.151.10, Notice of Intent to Adopt Rules; sec.151.11, Request for Comments; Hearing; Explanation of Board Action; sec.151.12, Emergency Rules; sec.151.13, Petition for Adoption of Rules; sec.151.14, Informal Consultations; sec.151.15, Denial of License; sec.151.16, Suspension or Revocation of a License; sec.151.17, Notice of Hearing; sec.151.18, Hearings Before the Board; sec.151.19, Limitations on Number of Witnesses; sec.151.20, Right to Counsel; Right to Participate; sec.151.21, Ex Parte Consultations; sec.151.22; Subpoenas; Depositions; Discovery; sec.151.23, Testimony; sec.151.24, Rules of Evidence; sec.151.25, The Record; sec.151.26, Informal Disposition; sec.151.27, Final Decisions and Orders; sec.151.28, Finality of Decisions; sec.151.29, Prerequisite to Judicial Review; and sec.151.30, Judicial Review, without changes to the proposed text as published in the November 12, 1996, issue of the Texas Register (21 TexReg 11042). These sections are repealed and new replacement sections adopted to eliminate redundancy with rules and procedures of the Administrative Procedures Act and of the State Office of Administrative Hearings. A public hearing on the proposed repeal of the sections was held in conjunction with the board's regular meeting at 9:30 a.m., Thursday, December 12, 1996, in conference room 235, 1101 Camino La Costa, Austin, Texas 78752. The Foundation Appraiser Coalition of Texas (FACT) spoke in favor of the proposed repeal of the sections. There were no written comments. The repeals are adopted under sec.5 of the Texas Appraiser Licensing and Certification Act (Article 6573a.2, V.T.C.S.), which provides the Texas Appraiser Licensing and Certification Board with authority to adopt rules for the licensing and certification of real estate appraisers and for standards of practice. 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 February 4, 1997. TRD-9701557 Renil C. Liner Commissioner Texas Appraiser Licensing and Certification Board Effective date: March 1, 1997 Proposal publication date: November 12, 1996 For further information, please call: (512) 465-3950 CHAPTER 151.Rules Relating to Practice and Procedure SUBCHAPTER A.General Provisions 22 TAC sec.sec.151.1-151.8 The Texas Appraiser Licensing and Certification Board adopts new 22 TAC Chapter 151, Rules Relating to Professional Conduct and Ethics, Subchapter A, General Provisions, including sec.151.1, Definitions; sec.151.2, Object of Rules; sec.151.3, Scope of Rules; sec.151.4, Computation of Time; sec.151.5, Conduct and Decorum; sec.151.6, Request for Advisory Opinions; sec.151.7, Denial of a License; sec.151.8, Suspension and Revocation of a License, without changes to the proposed text published in the November 12, 1996, issue of the Texas Register (21 TexReg 11043). These new sections establish rules regarding the TALCB interaction with the general public and licensees. The board eliminated much of the redundancy of the existing rules in regards to the Administrative Procedures Act and of the State Office of Administrative Hearings. The adopted rules address general provisions including definitions of terms used in the chapter, the object and scope of these rules, and how time is computed when referenced in these rules. The adopted rules also provide for proper comportment of those appearing before the board or in administrative hearings. They also provide for requesting advisory opinions from the board, and address the issues of denial, suspension or revocation of a license. A public hearing on the proposed rules was held in conjunction with the board's regular meeting at 9:30 a.m., Thursday, December 12, 1996, in conference room 235, 1101 Camino La Costa, Austin, Texas 78752. The Foundation Appraiser Coalition of Texas (FACT) spoke in favor of the proposed rule amendments. There were no written comments. The new sections are adopted under sec.5 of the Texas Appraiser Licensing and Certification Act (Article 6573a.2, V.T.C.S.) provides the Texas Appraiser Licensing and Certification Board with authority to adopt rules for the licensing and certification of real estate appraisers and for standards of practice. 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 February 4, 1997. TRD-9701558 Renil C. Liner Commissioner Texas Appraiser Licensing and Certification Board Effective date: March 1, 1997 Proposal publication date: November 12, 1996 For further information, please call: (512) 465-3950 SUBCHAPTER B.Contested Case Hearings 22 TAC sec.sec.151.9-151.14 The Texas Appraiser Licensing and Certification Board adopts new 22 TAC Chapter 151, Rules Relating to Practice and Procedure, Subchapter B, Contested Case Hearings, including sec.151.9, Notice of Hearing; sec.151.10, Right to Counsel; Right to Participate; sec.151.11, Contested Cases: Entry of Appearance; Continuance; sec.151.12, Failure to Attend Hearing; Default Judgment; sec.151.13, Ex Parte Consultations; and sec.151.14, Informal Disposition, without changes to the proposed text as published in the November 12, 1996, issue of the Texas Register (21 TexReg 11045). These new sections establish rules regarding the TALCB interaction with licensees and specify rights and responsibilities. The rules also eliminates much of the redundancy of the existing rules in regards to the Administrative Procedures Act and of the State Office of Administrative Hearings. The adopted rules address obligations of the board in providing notice of a hearing and specifies language concerning a respondent's failure to appear which results in a default judgment. The rules also specify that a respondent has a right to legal counsel and to participate. Information concerning the entry of appearance and filing for continuance is also addressed, as well as a default judgment being entered if a respondent fails to appear at a contested case hearing. The rules address ex parte communications between members of the board and the public, and provide for informal disposition of complaints. A public hearing on the proposed rules was held in conjunction with the board's regular meeting at 9:30 a.m., Thursday, December 12, 1996, in conference room 235, 1101 Camino La Costa, Austin, Texas 78752. The Foundation Appraiser Coalition of Texas (FACT) spoke in favor of the proposed rule amendments. There were no written comments. The new sections are adopted under sec.5 of the Texas Appraiser Licensing and Certification Act (Article 6573a.2, V.T.C.S.), provides the Texas Appraiser Licensing and Certification Board with authority to adopt rules for the licensing and certification of real estate appraisers and for standards of practice. 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 February 4, 1997. TRD-9701559 Renil C. Liner Commissioner Texas Appraiser Licensing and Certification Board Effective date: March 1, 1997 Proposal publication date: November 12, 1996 For further information, please call: (512) 465-3950 SUBCHAPTER C.Post Hearing 22 TAC sec.sec.151.15-151.19, 151.30 The Texas Appraiser Licensing and Certification Board adopts new 22 TAC Chapter 151, Rules Relating to Professional Conduct and Ethics, Subchapter C, Post Hearing, including sec.151.15 Proposals for Decision; sec.151.16, Exceptions and Replies; sec.151.17, Final Decisions and Orders; sec.151.18, Motions for Rehearing; Finality of Decisions; sec.151.19, Prerequisite for Judicial Review; and sec.151.30, Judicial review, without changes to the proposed text as published in the November 12, 1996, issue of the Texas Register (21 TexReg 11046). These new sections establish rules regarding the obligations and rights of licensees after a hearing before the State Office of Administrative Hearings. They also eliminate some of the redundancy of the existing rules in regards to the Administrative Procedures Act and of the State Office of Administrative Hearings (SOAH). The adopted rules address obligations of SOAH with regard to the content of the proposal for decisions and service of that proposal. They also specify the time period in which exceptions and replies must be made by the respondent. The adopted rules specify a time period in which the board may act in considering a final order, and provide for a motion for rehearing within a specified time period. Finally, they address the prerequisite for judicial review and for the judicial review itself. A public hearing on the proposed rules was held in conjunction with the board's regular meeting at 9:30 a.m., Thursday, December 12, 1996, in conference room 235, 1101 Camino La Costa, Austin, Texas 78752. The Foundation Appraiser Coalition of Texas (FACT) spoke in favor of the proposed rule amendments. There were no written comments. The new sections are adopted under sec.5 of the Texas Appraiser Licensing and Certification Act (Article 6573a.2, V.T.C.S.), provides the Texas Appraiser Licensing and Certification Board with authority to adopt rules for the licensing and certification of real estate appraisers and for standards of practice. 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 February 4, 1997. TRD-9701560 Renil C. Liner Commissioner Texas Appraiser Licensing and Certification Board Effective date: March 1, 1997 Proposal publication date: November 12, 1996 For further information, please call: (512) 465-3950 CHAPTER 153.Provisions of the Texas Appraiser Licensing and Certification Act 22 TAC sec.sec.153.5, 153.9-153.11, 153.13, 153.15, 153.17-153.20, 153.25, 153.27, 153.31 The Texas Appraiser Licensing and Certification Board adopts amendments to sec.153.5, Fees; sec.153.9, Applications, sec.153.11, Examinations; sec.153.13, Educational Requirements; sec.153.15, Experience Required for Certification or Licensing; sec.153.17, Renewal of Certification License or Trainee Approval; Continuing Education; sec.153.19, Licensing and Certification of Persons with Criminal Backgrounds; sec.153.20, Guidelines for Revocation and Suspension; Investigations; sec.153.25, Temporary Certification and Licensure; sec.153.27, Certification and Licensure by Reciprocity; and sec.153.31, Office Location, without changes to the proposed text as published in the November 12, 1996, issue of the Texas Register (21 TexReg 11047). The board also adopts new sec.153.10, Date of Licensure, and sec.153.18, Appraiser Continuing Education, without changes to the proposed text as published in the November 12, 1996, issue of the Texas Register (21 TexReg 11047). New sec.153.10, Date of Licensure, indicates that a licensee is licensed on the date a license number is issued rather than the date he or she receives the certificate in the mail. New sec.153.18, Appraiser Continuing Education, is split from sec.153.17, Renewal of Certification, License or Trainee Approval; Continuing Education, and is renamed to clarify the appraiser continuing education requirements for renewal of licensure. Additionally, it specifies the increased continuing education requirements as of January 1, 1998, as per the Appraiser Qualifications Board criteria. Amendments to sec.153.5, Fees, remove the $10 fee for notifying the board of a new business address, and indicate that all fees must be paid in U.S. currency or funds. Section 153.9, Applications, clarifies some language and adopts a new form for temporary non-resident appraiser registration with a revised "Irrevocable Consent to Service" statement. Amendments to sec.153.11, Examinations, provide for examinations by endorsement from other states. Section 153.13, Educational Requirements, reorganizes the section by listing the requirements by type of license or certification, and adds the educational requirements effective January 1, 1998, as per the Appraiser Qualifications Board criteria. It also allows examination time to be considered in the required classroom hours, and notes that after January 1, 1998, teaching of appraisal courses will not be acceptable for meeting experience requirements. It further specifies requirements for acceptable courses in the Uniform Standards of Professional Appraisal Practice (USPAP). Amendments to sec.153.15, Experience Required for Certification or Licensing, provide for the new experience requirements effective January 1, 1998, as per the Appraiser Qualifications Board criteria. They also provide that experience credit can only be given to those whose experience complies with USPAP, is verifiable and was performed when the person had legal authority to appraise real property. Section 153.17, Renewal of Certification, License or Trainee Approval; Continuing Education, will be amended to remove "Continuing Education" from the title, and to make reference to new sec.153.18, "Appraiser Continuing Education." Amendments to sec.153.19, Licensing and Certification of Persons with Criminal Backgrounds, adds appraiser trainees and non-resident temporary practice to those whose license or authorization may be revoked for cause by the board. Section 153.20, Guidelines for Revocation and Suspension; Investigation, is retitled, Guidelines for Revocation, Suspension, or Denial; Investigation, and language is added to the text to indicate that denial of licensure is included. It also provides that holding oneself out as certified or licensed when he or she is not, or being engaged in other unacceptable appraisal business practices is also grounds for disciplinary action. It also provides that a license or certification may be revoked under Chapter 232 of the Texas Family Code for failure to pay child support. Section 153.25, Temporary Certification and Licensure, provides that a person must submit an application to be registered. Section 153.27, Certification and Licensure by Reciprocity, provides that a Texas resident is not eligible for licensure by reciprocity from another state. Section 153.31, Office Location, eliminates language requiring payment of a fee for notifying the board of a change of office address. A public hearing on the proposed rules was held in conjunction with the board's regular meeting at 9:30 a.m., Thursday, December 12, 1996, in conference room 235, 1101 Camino La Costa, Austin, Texas 78752. The Foundation Appraiser Coalition of Texas (FACT) spoke in favor of the proposed rule amendments. There were no written comments. The new sections and amendment are adopted under sec.5 of the Texas Appraiser Licensing and Certification Act (Article 6573a.2, V.T.C.S.), provides the Texas Appraiser Licensing and Certification Board with authority to adopt rules for the licensing and certification of real estate appraisers and for standards of practice. 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 February 4, 1997. TRD-9701561 Renil C. Liner Commissioner Texas Appraiser Licensing and Certification Board Effective date: March 1, 1997 Proposal publication date: November 12, 1996 For further information, please call: (512) 465-3950 22 TAC sec.sec.153.23, 153.29, 153.35 The Texas Appraiser Licensing and Certification Board adopts the repeal of sec.153.23, Appraisers Meeting Certification Requirements Under Prior Law; Transitional Licenses; sec.153.29, Irrevocable Consent to Service of Process; and sec.153.35, Record Keeping, without changes to the proposed text as published in the November 12, 1996, issue of the Texas Register (21 TexReg 11055). Section 153.23, Appraisers Meeting Certification Requirements Under Prior Law; Transitional Licenses, is repealed. It is no longer needed as those affected by it have already been dealt with. Section 153.29 is repealed because it was redundant to Section 15(e) of the Texas Appraiser Licensing and Certification Act (Art. 6573a.2, VTCS). Section 153.35 is repealed because it was redundant to Section 20 of the Act. A public hearing on the proposed rules was held in conjunction with the board's regular meeting at 9:30 a.m., Thursday, December 12, 1996, in conference room 235, 1101 Camino La Costa, Austin, Texas 78752. The Foundation Appraiser Coalition of Texas (FACT) spoke in favor of the proposed rule repeal. There were no written comments. The repeals are adopted under sec.5 of the Texas Appraiser Licensing and Certification Act (Article 6573a.2, V.T.C.S.), provides the Texas Appraiser Licensing and Certification Board with authority to adopt rules for the licensing and certification of real estate appraisers and for standards of practice. 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 February 4, 1997. TRD-9701562 Renil C. Liner Commissioner Texas Appraiser Licensing and Certification Board Effective date: March 1, 1997 Proposal publication date: November 12, 1996 For further information, please call: (512) 465-3950 CHAPTER 155.Rules Relating to Appraisals 22 TAC sec.155.1 The Texas Appraiser Licensing and Certification Board adopts an amendment to sec.155.1, Standards of Practice, without changes to the proposed text as published in the November 12, 1996, issue of the Texas Register (21 TexReg 11055). The Board adopts the amendment to sec.155.1 to eliminate dated language which no longer applies. A public hearing on the proposed rules was held in conjunction with the board's regular meeting at 9:30 a.m., Thursday, December 12, 1996, in conference room 235, 1101 Camino La Costa, Austin, Texas 78752. The Foundation Appraiser Coalition of Texas (FACT) spoke in favor of the proposed rule amendments. There were no written comments. The amendment is adopted under sec.5 of the Texas Appraiser Licensing and Certification Act (Article 6573a.2, V.T.C.S.), provides the Texas Appraiser Licensing and Certification Board with authority to adopt rules for the licensing and certification of real estate appraisers and for standards of practice. 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 February 4, 1997. TRD-9701563 Renil C. Liner Commissioner Texas Appraiser Licensing and Certification Board Effective date: March 1, 1997 Proposal publication date: November 12, 1996 For further information, please call: (512) 465-3950 CHAPTER 157.Rules Relating to Professional Conduct and Ethics 22 TAC sec.sec.157.1-157.5 The Texas Appraiser Licensing and Certification Board adopts repeal of 22 TAC Chapter 157, Rules Relating to Professional Conduct and Ethics, including sec.157.1, General; sec.157.2, Professional Independence; sec.157.3, Hypothetical Conditions; sec.157.4, Undisclosed Fees; and sec.157.5, Confidentiality, without changes to the proposed text as published in the November 12, 1996, issue of the Texas Register (21 TexReg 11056). The board adopts repeal of Chapter 157 to eliminate redundancy since the proposed repealed sections and language are already found virtually verbatim in the Preamble of the Uniform Standards of Professional Appraisal Practice (USPAP) which is referenced in sec.155.1, Standards of Practice. A public hearing on the proposed repeal of the rules was held in conjunction with the board's regular meeting at 9:30 a.m., Thursday, December 12, 1996, in conference room 235, 1101 Camino La Costa, Austin, Texas 78752. The Foundation Appraiser Coalition of Texas (FACT) spoke in favor of the proposed rule amendments. There were no written comments. The repeal is adopted under sec.5 of the Texas Appraiser Licensing and Certification Act (Article 6573a.2, V.T.C.S.), provides the Texas Appraiser Licensing and Certification Board with authority to adopt rules for the licensing and certification of real estate appraisers and for standards of practice. 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 February 4, 1997. TRD-9701564 Renil C. Liner Commissioner Texas Appraiser Licensing and Certification Board Effective date: March 1, 1997 Proposal publication date: November 12, 1996 For further information, please call: (512) 465-3950 TITLE 25. HEALTH SERVICES PART II. Texas Department of Mental Health and Mental Retardation CHAPTER 409.Medicaid Programs SUBCHAPTER K.TDMHMR Standards for Behavioral Health Services by Medicaid Managed Care Organizations 25 TAC sec.sec.409.401-409.406 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.sec.409.401-409.406, of new Chapter 409, Subchapter K, governing standards for behavioral health services by Medicaid managed care organizations. New sec.409.403 and sec.409.404 are adopted with changes to the proposed text as published in the August 6, 1996, issue of the Texas Register (21 TexReg 7335- 7337). New sec.409.401-409.402 and sec.409.405--409.406 are adopted without changes and will not be republished. The new sections implement Senate Bill 600, codified at sec.12.017, Texas Health and Safety Code, which requires the department to adopt standards for managed care organizations participating in the Medicaid program. The standards will be used to assess quality of care for Medicaid recipients of behavioral health services from managed care organizations (MCOs) which have contracted with the Texas Department of Health (TDH) to ensure services to this population. The new sections would be the behavioral health part of a larger body of regulation that is being adopted by TDH and the Texas Health and Human Services Commission (HHSC) and which will govern all forms of medical care. Changes to the text were made as a result of comments received and for clarification purposes. The text of sec.409.403 has changes which include the modification of existing and the addition of new definitions. The text of standards contained sec.409.404 were changed: to add licensed chemical dependency facilities as a potential MCO service; to clearly state that MCO member have the right to consent to participation in research and clinical trials; to indicate that service providers be afforded to opportunity to participate in the development of protocols for screening, assessment, and referral processes; to indicate that service providers be afforded to opportunity to participate in the development of the MCO code of ethics; to indicate that legally authorized representative have the right to participate and grant permission for family involvement; to indicate that provider practice guidelines are to be made available to MCO members and other interested parties; and for clarification purposes. A public hearing concerning the new sections was held in conjunction with HHSC and TDH on August 22, 1996. Written comments were received from nine respondents regarding adoption of the rule, with several commenters offering recommendations for revision. Those respondents offering comment on the adoption of the rule include: Disability Policy Consortium, Austin; Advocacy Inc., Austin; Texas Commission on Alcohol and Drug Abuse, Austin; Health Facility Licensing Division, Texas Department of Health, Austin; Texas Hospital Association, Austin; Americaid Community Care, Fort Worth; Mental Health Association of Texas, Austin; Texas Alliance for the Mentally Ill, Austin; Charter Plains BHS, Lubbock. Concerning proposed standard AA1.1, two commenters asked who will approve the MCO's written policies and procedures, and protocols for screening, assessment, and referral processes for behavior health care. The department responds that MCO policies, procedures and protocols governing behavioral health are required to be in compliance with the provisions of the TDH contact as well as with applicable federal, state and local laws. Further, TDH has the responsibility for conducting periodic performance evaluations of MCO services. The department believes that additional approval processes for MCO policies, procedures and protocols at the state level are not warranted at this time. Concerning proposed standard AA1.2, one commenter requested a definition be added for the term "self-refer". The department responds that the term is considered to be adequately self- descriptive. Concerning proposed standard AA1.2, one commenter requested text be added to the proposed standard reflecting the need to obtain prior authorization for member self-referral. The department responds that it has set prescriptive standards for many areas of the Medicaid managed care program. However, the department also believes the MCO should be allowed flexibility in instituting managed care across the state. Such flexibility is thought to include factors such as allowing the MCO to determine the conditions under which member self-referral requires prior approval. Concerning proposed standard AA2.1, one commenter requested the inclusion of service availability provisions for continuity of care following the loss of provider or provider termination; requirements for provider training; and requirements that the provider network must represent the diversity of the community. Another commenter stated that the MCO should only have the capacity to serve its own members, not the population of the services region. The department responds that the MCO should be allowed flexibility in instituting continuity of care procedures regarding the loss of provider or provider termination. The department responds that provider training requirements additional to those proposed by HHSC at 1 TAC sec.sec.353.101-353.105, are not considered to be necessary at this time. The department also responds that community diversity concerns are addressed by standards proposed by TDH at 25 TAC sec.30.27(a)-(i), concerning accessibility of services. Additionally, the department responds that the text of the standard does relates to the scope of services for it's members. Concerning proposed standard AA2.1, one commenter requested that ratios of professional disciplines and service types be spelled out for the number of providers available to the population of members being serviced. The department responds that due to the vast number of specialty types available, a general rule is considered to be more effective in addressing the wide variety of circumstances that will be encountered in delivering specialized care. Concerning proposed standard AA2.2, one commenter requested standards pertaining to service availability explicitly state conditions for timely access to care (i.e., routine, urgent, and emergency). The same commenter requested that accessibility to federally qualified health centers (FQHC) be indicated. The department responds that standards for MCO service access, which includes routine, urgent and emergency care, is addressed by standard XI, governing standards for availability and accessibility, in the contract for services between TDH and MCO. The department does not believe a supplementary standard is necessary at this time. Additionally, the department does not find the proposed standard to be in conflict with federal regulations governing accessibility to FQHCs. Concerning proposed standard SC1.1, two commenter asked that the text governing prescribing of medication contain language stating that the diagnosis or provisional diagnosis for which the specific medication is clinically indicated be established prior to prescribing that particular medication. Another commenter stated that this standard should be apply in an emergency. The department responds that the text of the standard has been modified to indicate that the diagnosis or provisional diagnosis for which the specific medication is clinically indicated must be established prior to prescribing that particular medication. The department also responds that the prescribing of psychopharmacological medication should be done only after the determination of a diagnosis or provisional diagnosis. Concerning standard SC1.4, two commenters asked that the text governing prescribing of medication contain language indicating that each person on medication be reviewed by a psychiatrist at least every three months, unless the individuals treatment plan specifically indicates otherwise. Another commenter inquired whether the requirement for review by a psychiatrist applied to the prescribing of psychopharmacological medication under conditions other than when a member is referred for behavioral health services. The department responds that while it has set prescriptive standards for many aspects of the Medicaid managed care program, as required by state legislation, the department believes it is important that MCO's be afforded flexibility in establishing procedures for clinical activities such as medication evaluation and management. Additionally, the department responds that the standards apply only to members being provided behavioral health services. Concerning proposed standard SC2.2, two commenters requested that the proposed text governing consent to treatment with psychopharmacological medication be revised to comply with Title 25, Part II, Chapter 405, Subchapter FF, governing consent to treatment with psychoactive medication. The department responds that Title 25, Part II, Chapter 405, Subchapter FF, governing consent to treatment with psychoactive medication, is applicable only to inpatient mental health service settings. The department does not consider it appropriate to apply this regulation to services which are primarily outpatient in nature. Concerning proposed standard SC3.2, one commenter requested that the proposed standards state that the MCO shall ensure behavior management is used only in compliance with TDMHMR rules. The department responds that Title 25, Part II, Chapter 405, Subchapter F, governing voluntary and involuntary behavioral interventions in mental health programs, is applicable only to inpatient mental health service settings. The department does not consider it appropriate to apply this regulation to services which are primarily outpatient in nature. Concerning proposed standard QI1.1, one commenter requested the text governing MCO provider practice guidelines or criteria be modified to indicate an approving entity. The department responds that MCO policies, procedures, protocols and guidelines governing behavioral health are required to be in compliance with the TDH contract as well as with applicable federal, state and local regulations and statutes. Further, TDH has the responsibility for conducting periodic performance evaluations of MCO services. The department believes that additional approval processes for MCO policies, procedures, protocols, and guidelines at the state level are not warranted at this time. Concerning proposed standard QI1.2, two commenters requested MCO provider practice guidelines be made available for comment by consumers and other interested parties. The department responds that provider practice guidelines are considered by many MCOs to be proprietary materials. However, because the services provided under the auspice of these rules are publicly funded, the department believes that the public interest is best served by having MCO provider practice guidelines made available to its members and other interested parties. Concerning proposed standard QI1.7, one commenter requested the word solely be deleted from the proposed standard governing exclusions on a prescribed course of treatment. Another commenter requested stronger language. The department responds that cost should not be the sole factor in the exclusion of a preferred treatment. However, the department does believe the cost of a prescribed treatment is, in combination with other clinical factors, a valid and appropriate consideration in the management of behavioral health care. Concerning proposed standard QI1.8, several commenters requested the term substantial involvement be defined with regard to the involvement of a licensed behavioral health clinician in the development and implementation of the utilization review program. The department responds that while it has set prescriptive standards for many aspects of the Medicaid managed care program, as required by state legislation, it is important that MCOs be afforded flexibility in establishing internal policies and procedures. At this time the department does not believe that the designation of a specific measurable unit of involvement is necessary. Concerning proposed standard QI1.9, one commenter requested that members be notified in writing regarding a determination made in a utilization review decision. The department responds that utilization review requirements are addressed by standard XIII, governing utilization review, in the contract for services between TDH and HMO. This standard requires the MCO to clearly document the reasons for a utilization review decision and to make such information available to the member. The department does not believe a supplementary standard is necessary at this time. Concerning proposed standard RR2.1, one commenter requested, in addition to the proposed language regarding the right to give informed consent to treatment, that language be incorporated regarding the right to refuse treatment. The department responds that the right to give informed consent implies the right to refuse treatment by withholding consent. Concerning proposed standard RR2.3, one commenter requested that in addition to the proposed language regarding the right to give permission for family member to be involved in treatment planning, that language be incorporated regarding the right to withhold permission for family involvement. The department responds that the right to give permission for family involvement infers the right to refuse family involvement by withholding consent. Concerning proposed standard RR.2.3, one commenter requested that selected sections of the Texas Health and Safety Code, TDMHMR rules, and HHSC rules be incorporated into the proposed standards regarding rights and responsibilities. The department responds that a review of applicable sections of the Texas Health and Safety Code, TDMHMR rules, and HHSC rules was conducted by HHSC and the department. The department believes the standards regarding rights and responsibilities are appropriate as proposed. Concerning proposed standard RR2.3, one commenter requested that the proposed standards regarding rights and responsibilities be modified to clarify members rights regarding access to treatment records, continuity of care, and treatment by a psychiatrist whenever psychopharmacological medication is prescribed. The department responds that accessibility to mental health treatment records are addressed by the Texas Health and Safety Code, sec.sec.611.001-611.005, governing mental health records, and by standard XII, governing medical records standards, in the contract for services between TDH and HMO. The department does not believe a supplementary standard regarding access to treatment records is necessary at this time. The department responds that continuity of care issues are addressed by article IVB, governing scope of services, in the contract for services between TDH and HMO. The department does not believe a supplementary standard regarding member rights to continuity of care is necessary at this time. The department responds that it does not find sufficient justification to require treatment by a psychiatrist whenever psychopharmacological medication is prescribed. Concerning sec.409.403, one commenter requested that the definition for complaint be modified to correspond to the definition in 25 TAC sec.119.2 of the Texas Department of Health Health Maintenance Organization rules. The department has modified the definition for complaint to correspond to the definition in 25 TAC sec.119.2 of the Texas Department of Health Health Maintenance Organization rules. Concerning proposed standards AA2.1 and SC4.2, one commenter requested licensed chemical dependency facilities be included as a provider service within the MCO network of services and as such be required to comply with Texas Administrative Code, Title 25, Part II, Chapter 405, Subchapter F, governing voluntary and involuntary behavioral interventions in mental health facilities. The department responds that standard AA2.1 has been modified to include licensed chemical dependency facilities as a potential MCO service. Standard SC4.2 has been modified to include licensed chemical dependency facilities. Regarding Title 25, Part II, Chapter 405, Subchapter F, governing voluntary and involuntary behavioral interventions in mental health facilities, the department responds that this is applicable only to inpatient mental health service settings. The department does not consider it appropriate to apply this regulation to services which are primarily outpatient in nature. Concerning proposed standard RR2.1, one commenter requested that the language of the standard be modified to more clearly state the member right to consent to participation on clinical trials or research. The department responds that standard AA2.1 has been modified to more clearly state the member right to consent to participation on clinical trials or research. Concerning proposed standard RR2.3, one commenter requested the standard be modified to include language regarding the member right to participate in the development of an individualized treatment plan. The department responds the member right to treatment decisions is included in the standards proposed by HHSC at 1 TAC sec.532.202, regarding member bill of rights. Concerning proposed sec.409.403, regarding definitions, two commenter requested the inclusion of definitions for the terms emergency, medically necessary behavioral health services, behavioral health clinician, and licensed behavioral health provider. The department responds that new definitions for emergency care and medically necessary behavioral health services have been included. The department believes that the proposed definitions for the term behavioral health services and the term provider adequately describe a licensed behavioral health provider and a behavioral health clinician. Additional detail regarding requirements for providers and specialists is provided in the contract between TDH and the MCO. Concerning proposed standard AA1.1, one commenter asked that service providers be afforded the opportunity to participate with the MCO in the development of protocols for screening, assessment, and referral processes for behavioral health. Another commenter recommended that all policies, procedures, and protocol be made available to interested members of the public. The department responds that standard AA1.1 has been modified to indicate that service providers are afforded the opportunity to participate with the MCO in the development of protocols for screening, assessment, and referral processes for behavioral health. The department considers it important that MCOs be afforded flexibility in determining which internal policies, procedures and protocols are made available to the public. Concerning proposed standard AA1.1, one commenter asked that service providers be provided access to an appeals process when an MCO denies a recommendation for admission for mental health services. The department responds that the definition for complainant, contained in sec.30.22. of the standards proposed by TDH, allows a treating provider or another individual to act on the behalf of the member who files a complaint. Concerning proposed standard AA1.1, one commenter stated that MCOs should be required to develop written protocols for emergency mental health services. The department responds that emergency mental health services are addressed in Article IV.B.8 of the contract for services between TDH and HMO. The department does not believe the addition of a supplemental standard to be necessary at this time. Concerning proposed standard AA1.2, one commenter stated that the proposed text may inaccurately imply that member in-network self-referral would result in the provision of mental health services from a particular network provider. The department responds that the text of the standard has been modified to more accurately reflect the self-referral process. Concerning proposed standard AA2.2, one commenter stated the proposed language appears to incorrectly indicate that hospitals generally hospitalize individuals for assessment. The department responds the text of the standard has been modified to avoid the potential for misinterpretation. Concerning proposed standard SC1.2, one commenter requested the inclusion of language requiring the development of written criteria for obtaining a psychiatric consultation for the administration of psychopharmacological medications. The department responds that while it has set prescriptive standards for many aspects of the Medicaid managed care program, as required by state legislation, it is important that MCOs be afforded flexibility in establishing of internal policies and procedures. At this time the department does not believe that additional requirements regarding the development of written criteria for obtaining a psychiatric consultation for the administration of psychopharmacological medications are necessary. Concerning proposed standard SC2.1 and SC2.2, one commenter stated the evidentiary requirement relating to documentation of informed consent to treatment of psychopharmacological medications could create a heavy burden on the MCO and the provider. The department responds that the evidentiary requirement relating to documentation of informed consent to treatment of psychopharmacological medications is considered to be appropriate for members receiving inpatient mental health services and inpatient substance abuse services. Concerning proposed standard SC2.2, one commenter indicated that the proposed language could be inappropriately applied to any medication, not solely psychopharmacological medications. The department responds that the text of the standard has been modified to indicate that standard refers to only the psychopharmacological medication(s) prescribed by the outpatient provider. Concerning proposed standard SC4.3 and SC4.4, one commenter indicated that the utilization of the term day program does not accurately reflect the use of after-school and evening programs for children and adolescents. The department responds the term outpatient program has been inserted in the text in place of the term day program. Concerning proposed standard QI1.9, one commenter requested the assessment of utilization review decisions be conducted by a health care professional in the same speciality as the concerned service provider. The department responds the assessment of utilization review decisions by a health care professional in the same speciality as the concerned service provider is inconsistent with current practice in the general health field. The department does not have a compelling justification for such a significant departure from customary practice. Concerning proposed quality improvement standards, one commenter requested the inclusion of a new standard to address situations in which statutes and TDMHMR rules are enforced against hospitals by the Texas Department of Health in a manner different from that envisioned by TDMHMR. The department responds that addressing possible misinterpretations or misapplications by TDH is outside the scope of these standards. The department is committed to close coordination with TDH regarding application of all standards. Concerning proposed standard RR1.1, one commenter requested the inclusion of areas of ethical behavior which should minimally be included in the required MCO organizational behavioral health standards regarding ethical behavior of the MCO and providers. Additionally, the commenter requested that providers be afforded the opportunity to be involved in the development of an MCO code of ethics. Another commenter asked that state mental health authority issue standards regarding ethical behavior. The department responds that while it has set prescriptive standards for many aspects of the Medicaid managed care program, as required by state legislation, it is important that MCOs be afforded flexibility in establishing of internal policies and procedures. At this time the department does not believe that a required minimal set of ethical behaviors is necessary. The department has modified that text of the standard to indicate providers be afforded the opportunity to be involved in the development of the MCO code of ethics. Regarding the request that the state mental health authority issue standards regarding ethical behavior, the department responds that such an issuance is outside the scope of these standards. Concerning proposed standard RR2.3, one commenter requested that the language be modified to indicate that legally authorized representatives of members (e.g., guardians, parents of minors, etc.) have the right to participate and to grant permission for family involvement in treatment planning. The department responds that the language of the standard has been be modified to indicate that legally authorized representatives of members (e.g., guardians, parents of minors, managing conservator) have the right to grant permission for family involvement in treatment planning. Concerning proposed standard RR3.1, one commenter stated that MCO members do not have the knowledge and background to participate in decision making on a grievance committee. The department responds that the composition of the grievance committee is outside the scope of these standards. Concerning standards governing member rights and responsibilities, two commenters requested new standards be incorporated which address additional areas of rights and responsibilities. The department responds that the broad scope of standards governing member rights and responsibilities proposed by HHSC and TDMHMR are considered to be sufficient at this time. Concerning member rights and responsibilities in general, one commenter requested MCO right and responsibilities standards promulgated by the Texas Health and Human Services Commission (HHSC) be referenced in the rules adopted by TDMHMR. The department responds that sec.409.402 (b), regarding application, has been modified to indicate this subchapter shall be read in conjunction with rules adopted by other state agencies charged with operation of the state's Medicaid managed care program, including the Texas Department of Health, at 25 TAC sec.sec.30.21-30.32 (relating to Standards for the State of Texas Access Reform (STAR), the Texas Health and Human Services Commission, at 1 TAC sec.sec.353.1, 353.2, 353.101-353.105, 353.202-353.204, and 353.301-353.304 (relating to Medicaid Managed Care, and the Texas Department of Insurance at 28 TAC Chapter 11, Subchapter S. Concerning resolution of provider problems, one commenter requested the inclusion of standards governing a processes to appeal adverse determinations or denial of coverage by an MCO. The department responds that complaint procedures are addressed in standards proposed by TDH at 25 TAC, sec.30.29, governing member complaint procedures. These rules allow a third party, including the involved service provider, to act on behalf of the member. Concerning the proposed standards in general, several commenters expressed opposition to the approach of relying on the placement of issues in the contract versus promulgating specific standards. The department responds that the approval process for the contract between TDH and MCOs is a public process. Concerned individuals and groups are encouraged to participate to the fullest extent. The department is currently evaluating the rationale and extent to which specific service requirements currently contained in contract should also be contained in standard. Concerning the proposed standards in general, several commenter stated that existing TDMHMR expertise in the area of behavioral health care should be used versus having TDH develop and enforce standards without such expertise. The department responds that the standards are promulgated under the authority of Senate Bill 600, codified at sec.12.017 Texas Health and Safety Code, which require HHSC, TDH, and TDMHMR to jointly adopt standards for the managed care program. Concerning the proposed standards in general, one commenter asked whether substance abuse authorities had been consulted. (42 - Mental Health Association of Texas) The department responds that the Texas Commission on Alcohol and Drug Abuse (TCADA) was consulted regarding applicable sections of the standards. The new sections are adopted under the Health and Safety Code, Title 7, sec.532.015(a), which provides the Texas Mental Health and Mental Retardation Board with rulemaking powers; and under the provisions of Texas Government Code, sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The sections affect Texas Human Resources Code, sec.sec.32.001-322.040, and Texas Government Code, sec.531.021. sec.409.403. Definitions. The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise. Behavioral health services - Treatment for mental or emotional disorders and treatment for chemical dependency disorders. Behavioral management - Interventions to increase socially adaptive behavior and to modify maladaptive or problem behaviors and replace them with behaviors and skills that are adaptive and socially productive. Complaint - Any dissatisfaction, expressed by a complainant orally or in writing to the managed care organization (MCO), with any aspect of the MCO's operation, including but not limited to dissatisfaction with plan administration; appeal of an adverse determination; the denial, reduction or termination of a service; the way a service is provided; or disenrollment decisions expressed by a complainant. A complaint is not a misunderstanding or misinformation that is resolved informally by supplying the appropriate information or clearing up the misunderstanding to the satisfaction of the member. Emergency behavioral health services - Inpatient or outpatient behavioral health services provided in response to an emergency behavioral health condition. Emergency care - Physical medicine, emergency behavioral health services and health-related services provided in response to any condition requiring immediate intervention and/or medical treatment, including emergency labor and delivery and any medical condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in: (A) placing the patient's health in serious jeopardy; (B) serious impairment to bodily functions; (C) serious dysfunction of any bodily organ or part; or (D) an emergency behavioral health condition. Mechanical restraint - The application of a physical device to restrict the movement of the whole or a portion of a person's body, except as part of a normal medical or dental procedure and for bodily support and positioning. Medically necessary behavioral health services - those behavioral health services which are: (A) reasonably necessary for the diagnosis or treatment of a mental health or chemical dependency disorder or to improve or maintain or prevent deterioration of functioning resulting from such a disorder; (B) in accordance with professionally accepted clinical guidelines and standards for practice in behavioral health care; (C) furnished in the most appropriate and least restrictive setting in which services can be safely provided; (D) the most appropriate level or supply of service which can safely be provided; and (E) could not have been omitted without adversely affecting the member's mental and/or physical health or the quality of care rendered. Managed Care - A health delivery system in which the overall care of a patient is coordinated by or through a single provider or organization. Managed Care Organization (MCO) - An entity that has a current Texas Department of Insurance certificate of authority to operate as an Health Maintenance Organization (HMO) under Article 20A of the Texas Insurance Code or as an approved nonprofit health corporation under Article 21.52F of the Texas Insurance Code. Member - Any Medicaid eligible recipient who is enrolled in the state's Medicaid managed care program. Personal restraint - The application of physical pressure to a person's body in such a way as to restrict the movement of the whole or a portion of the person's body for a period in excess of five minutes, except as part of a normal medical or dental procedure. Primary care physician or primary care provider - A physician or provider who has agreed with the Texas Department of Health or an MCO to provide a medical home to members and who is responsible for providing initial and primary care to patients, maintaining the continuity of patient care, and initiating referral for care. Provider - An individual or entity and its employees and contractors that provide health care services to members under the state's Medicaid managed care program. TDMHMR - The Texas Department of Mental Health and Mental Retardation, the state agency responsible for developing mental health policy for public and private sector providers. Seclusion - Confinement of an individual alone in a locked room or alone in another isolated area from which egress is prevented. sec.409.404. Standards of Care. (a) Managed care organizations that contract with the Texas Department of Health to provide behavioral health services to Medicaid recipients must be in compliance with TDMHMR Standards for Behavioral Health Services by Medicaid Managed Care Organizations as described in the following table. Figure: 25 TAC sec.409.404(a). (b) This subchapter shall not be construed to impose obligations in addition to those set out in, or require modification of, contracts executed on or before August 1, 1996. Such contracts that are renewed or extended and contracts executed after August 1, 1996, shall conform to this subchapter. 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 February 3, 1997. TRD-9701534 Ann Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: February 25, 1997 Proposal publication date: August 6, 1996 For further information, please call: (512) 206-4516 TITLE 31. NATURAL RESOURCES AND CONSERVATION PART II. Texas Parks and Wildlife Department CHAPTER 57.Fisheries Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic Plants 31 TAC sec.57.136 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, January 23, 1997, adopts new sec.57.136, concerning Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic Plants with changes to the proposed text as published in December 20, 1996, issue of the Texas Register (21 TexReg 12290). Changes to sec.57.136 include clarification of language concerning applications for exotic species permits. The proposed reference to "new" exotic species permits applications was deemed ambiguous and the section was amended such that reference is made to "initial" exotic species permit application. Reference to appropriate valid wastewater discharge authorization was included in sec.57.136(1) for clarity. Amendments in sec.57.136(2) exempt exotic species permit applicants operating aquaculture facilities which are closed and/or recirculating systems from requirements for wastewater discharge authorizations provided by the Texas Natural Resource Conservation Commission (TNRCC). The new section is being adopted at the request of the TNRCC as part of a joint effort between the two agencies to efficiently and effectively regulate the aquaculture industry. The new section requires applicants for an initial exotic species permit to have written authorization from the TNRCC regarding water discharge from the facilities requesting the permit. It is anticipated that the new rule will enhance protection of the aquatic resources indigenous to the waters of this state. The department received comments concerning the proposed rule from the Texas Aquaculture Association and the Aransas County Commissioners Court and the Coalition for the protection of Hynes Bay and the Aransas National Wildlife Refuge. The Texas Aquaculture Association proposed language to clarify the distinction between first time exotic species permit applicants and renewal applicants. The department agreed with this recommendation and it was incorporated into the amended section. The Aransas County Commissioners Court and the Coalition for the protection of Hynes Bay and the Aransas National Wildlife Refuge recommended (1) requiring both first time exotic species applicants and renewal applicants to obtain appropriate authorization from the Texas Natural Resource Conservation Commission, and provide documentation of that authorization and that if an applicant contends that no discharge authorization or exemption is required, applicants should be required to submit adequate documentation to demonstrate that no discharge of waste into or adjacent state waters will, or is likely to occur. Staff agreed with these recommendations and the amended rule reflects their inclusion. The new rule is adopted under Parks and Wildlife Code sec.66.007, which provides the commission with authority to promulgate regulations necessary to regulate the importation, possession, and sale of exotic fish and shellfish, and their placement into the waters of this state. sec.57.136.Wastewater Discharge Authorization Requirement. An applicant for an initial exotic species permit which requires facility inspection must provide the following: (1) written documentation demonstrating that the applicant possesses either the appropriate valid wastewater discharge authorization or exemption from the Texas Natural Resource Conservation Commission if the fish farm, fish farm complex or private facility is designed such that a discharge of waste into or adjacent to water in the state will, or is likely to occur; or (2) adequate documentation to demonstrate that the facility is designed and will be operated in a manner such that no discharge of waste into or adjacent to state waters will, or is likely to occur. 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 February 4, 1997. TRD-9701553 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: February 25, 1997 Proposal publication date: December 20, 1996 For further information, please call: (512) 389-4642