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 22. EXAMINING BOARDS PART V. State Board of Dental Examiners CHAPTER 103.Dental Hygiene Licensure 22 TAC sec.103.3 The State Board of Dental Examiners adopts new sec.103.3, concerning licensure of graduates of foreign and non-accredited dental hygiene schools or programs with changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10487). The new rule establishes that graduates of foreign and non-accredited dental hygiene schools will be able to practice dental hygiene as mandated by the Texas Legislature through the Dental Practice Act. Article 4543a sec.2, a new provision in the Dental Practice Act, provides that the Board "...shall grant a license to a dentist or dental hygienist who has not graduated from a dental or dental hygiene school accredited by the Commission on Dental Accreditation..." Even though the statute is new, the process insofar as it concerns dentists is not new. The board prior to 1995 had begun to license graduates of unaccredited dental schools, when educational equivalency of the dental school was determined by the applicant successfully completing a qualifying clinical examination administered by an accredited Texas dental school, sec.101.1. The new statutory provision requires licensure if the applicant has practiced for five years, has not been disciplined, has passed all examinations required by the board and the board through a process set forth in rule has determined educational equivalency of the school that has graduated the applicant. The primary purpose for this rule was to spell out the procedure by which the board would determine educational equivalency of an unaccredited school that had graduated an applicant for licensure as a dental hygienist. Beginning in the summer of 1995, the board asked that the Dental Hygiene Advisory Committee to look into whether the Texas dental hygiene schools could construct a qualifying clinical examination for dental hygienists similar to the process developed for dentists. The Dental Hygiene Advisory Committee reported back to the board that none of the dental hygiene educators were willing to conduct such examinations as they were not feasible for hygienists. The board then appointed an ad hoc Joint Committee made up of the members of the Dental Hygiene Advisory Committee and the members of the Board's standing credentials committee and examination committee. The joint committee after discussion was presented with a suggestion from the dental hygiene education community that educational equivalency could be determined by requiring graduation from a program of higher education of at least two academic years of full time study including specific course requirements. The rule was proposed by the joint committee and the board approved it for publication. In addition to describing a method to determine educational equivalency the rule included the other statutory requirements for licensure of graduates of unaccredited dental hygiene schools. Oral comments were received at hearing held December 6, 1996, and written comments were filed. Public comments were made by and on behalf of the following organizations: Dental Hygiene Advisory Committee; Texas Dental Hygienists' Association; Texas Dental Association; Texas Dental Hygiene Directors' Association; Texas Women's' University; Tarrant County Jr. College; Lamar University; Wharton County Jr. College; Tyler Jr. College; Baylor College of Dentistry; University of Texas Medical Branch; and Temple College. Four individuals made oral comments. In addition there were 411 written comments received concerning the rule, including the organizations who appeared at hearing. Further, written comments were received from Lt. Governor Bob Bullock, who simply forwarded to the board a letter from an individual, Representative Delisi who opined that the proposed rule did not follow the legislative intent set out in Senate Bill 673, which was unsuccessfully proposed during the 1993 legislative session and Representative Counts, who also made reference to Senate Bill 673 and the procedures whereby rules affecting licensing and education of dental hygienists are adopted, as set forth in Senate Bill 18 which was adopted during the 1995 legislative session. The Dental Hygiene Advisory Committee both in writing and orally proposed these changes: (1) the title of the rule be amended to drop the words "and non-accredited"; (2) add five additional course requirements; and (3) add a provision that an applicant who fails a qualifying examination three times be required to attend an accredited school for two years. The Texas Dental Hygienists' Association both in writing and orally proposed these changes: (1) change the title of the rule to exactly match the second part of the title of Article 4545a, so that it reads: "Licensing of Foreign-Trained Dentists"; (2) insert the word "foreign" between the words "a" and "dental" in the first sentence of the rule text and again in the first line of sub-paragraph (2). (3) add the following Commission on Dental Accreditation required courses to sub-paragraph (2)(C) (ii): immunology, preventive counseling, written and oral communications, legal and ethical aspects of dental hygiene practice, and management of patients with special needs; (4) modify the wording at the beginning of (2)(C)(ii) in the following manner: "the program must consist, at a minimum, of instruction in the following subjects, and any other subjects deemed to be required for accreditation by the Committee on Dental Accreditation of the American Dental Association": (5) add before the period at the end of sub- paragraph (2) (C) (ii) to create a new (iii): "; and (iii) the transcript, course catalogue, or other appropriate material has been reviewed by a panel of at least three directors of dental hygiene programs located in Texas and accredited by the Committee on Dental Accreditation of the American Dental Association, and they have determined that the equivalency requirements of this Section have been met." The Texas Dental Association in its written comments supported the rule as published and had no objection to its adoption. Since the Texas Dental Hygienists' Association's comments included all comments except the Dental Hygiene Advisory Committee's request for language addressing applicants who fail an exam three times, the responses will be focused on the Texas Dental Hygienists' Association comment. All the other commentors supported all or part of the changes proposed by Dental Hygiene Advisory Committee and Texas Dental Health Hygienists' Association. It sought the language changes on the basis of the following: (1) the proposed rule could result in lowered education standards for dental hygienists; (2) changing standards now is unfair to those who in the past were required to meet a strict standard; (3) the proposed rule is contrary to the intent of the legislature (1995) concerning licensure of hygienists; (4) the Dental Practice Act, as a whole, and specifically with regard to Article 4545a sec.2 is ambiguous with regard to licensing of certain dental hygienists; (5) the board is charged with maintaining educational requirements for licensees and in adopting a rule to do so should include in the rule additional course requirements to include all Commission on Dental Accreditation requirements; (6) the rule should be flexible to include future changes in Commission on Dental Accreditation requirements; (7) the board has not followed statutorily prescribed proceedings for adopting rules affecting dental hygienists; and (8) the board does not have the expertise to review transcripts to determine educational equivalency, transcripts may not provide enough information concerning a program upon which to base a determination of equivalency. Two concerns expressed dealt with the process of rule making in this case, while the others address commentors' views of ways to improve the rule. The procedural issues will be addressed first. The board is ignoring legislative intent. There is concern, perhaps legitimate, that Texas will be licensing not only graduates of foreign dental hygiene schools, but also graduates of domestic unaccredited dental hygiene schools, which the commentors say was not the intent of the legislature. If that is true, the choice of words is unfortunate. Article 4545a sec.2 provides that the board "....shall grant a license to a dentist or dental hygienist who has not graduated from a dental or dental hygiene school accredited by the Commission on Dental Accreditation of the American Dental Association if......". The unequivocal language of the act addresses graduates of unaccredited schools, and is not limited to graduates of foreign schools as the commentors want it to read. Commentors argue that the legislature intended to allow only graduates of foreign dental hygiene schools to become licensed in Texas. They urge the board to look to legislative intent and in support of their position allege that the statute is ambiguous based on the following: (1) the heading of Article 4545a does not include the term "unaccredited," (2) the wording of the statute does include the term and is thus ambiguous, and (3) other provisions of the act adopted prior to Article 4545a are inconsistent with the new provisions thus rendering the entire Dental Practice Act ambiguous. Since the board finds the language to be unambiguous, it is to the language itself that the board looks to determine legislative intent; it is clearly expressed. Headings and sub-headings in statutes are not substantive and the fact that the heading only mentions foreign graduates does not require a finding that the legislature meant that its words, "unaccredited" only means foreign. The heading also only mentions dentists; should the board take the position based on the heading that the legislature did not mean to include dental hygienists in the provisions of Article 4545a sec.2 when the statutory language includes that term? Commentors argue that the act is ambiguous since Article 4544 sec.2 provides that the board may license dentists who have graduated from foreign and/or unaccredited schools when Article 4545a sec.2 requires licensure if enumerated conditions are met. It is true that Article 4544 sec.2 is now unnecessary and it could have been repealed. Nonetheless when seeking to harmonize all the provisions of the act the two sections are not in fatal opposition and Article 4545a sec.2 is not rendered ambiguous, especially on the issue of dental hygienists. They also point to provisions of Article 4551e that require dental hygienists to be graduates of accredited programs. Those provisions have been in place for a number of years while Article 4545a sec.2 was enacted in 1995. Further, Article 4551e provides that a dental hygienist must have graduated from an accredited school or one approved by the board in which the course of instruction is the equivalent of not less than two terms of eight months. The rule in question here requires that applicants shall have graduated from an academic program of two years of full-time study. If the rule did not require two years of study or a minimum, the provisions of Article 4551e would not be met and the board would not be authorized to grant a license. There is no conflict between the provisions of the statute and no ambiguity. The board has adopted a rule that is intended to allow it to ensure that dental hygienists licensed in Texas are fully qualified by education to serve the needs of the people of Texas. Commentors have also indicated that the board has not followed the Dental Practice Act procedures in adopting this rule. They point to Section 27 of Senate Bill 18, that provides as follows: Section 27: (a) The Dental Hygiene Advisory Committee shall develop and recommend rules to the State Board of Dental Examiners that establish licensure qualifications and educational requirements for dental hygienists. (b) On receiving the recommendations of proposed rules developed as provided in Subsection (a) of this section, the State Board of Dental Examiners must approve or reject the proposed rules. If the State Board of Dental Examiners does not approve a rule developed by the Dental Hygiene Advisory Committee, the board shall indicate to the advisory committee the reasons that the rule was not approved and return the rule to the advisory committee for further development. The State Board of Dental Examiners is the final authority on all rules. (c) This section expires three years from the effective date of this Act. The Texas Dental Hygienists' Association takes the position that when adopting rules affecting dental hygienists the board may only refuse proposals made by the Dental Hygiene Advisory Committee. In other words, the board may not propose language for rules affecting hygienists, that right rests exclusively with the Dental Hygiene Advisory Committee. It is interesting that the Dental Hygiene Advisory Committee does not take that position, rather it is Texas Dental Hygienists' Association that does so. On the other hand, it did not take the position that members of the public could not propose rules affecting dental hygienists as provided in the Administrative Procedures Act. They seemed to feel that in those cases the board should work with the Dental Hygiene Advisory Committee in addressing the proposal. The board, which has ultimate responsibility for all of its rules, even under Section 27, must have more than simple veto authority. Section 27 imposes on the Dental Hygiene Advisory Committee the responsibility to develop and propose rules and it requires the board to work with the Dental Hygiene Advisory Committee on such proposals. Further, this part of Section 27 and other provisions of the Dental Practice Act require the board to ensure that the Dental Hygiene Advisory Committee is fully involved in rule making affecting dental hygienists. In the case of Rule 103.3, the board and the Dental Hygiene Advisory Committee have been working together since June 1995. The rule has not been developed through impermissible procedures simply because the first draft of language for the rule was not proposed by the Dental Hygiene Advisory Committee. The draft was proposed by a joint committee of which the Dental Hygiene Advisory Committee members were a part. The other proposals and concerns expressed dealt with ways to improve the rule. The board has changed the title of the rule to drop the words "and non- accredited." This request was made by several commentors. As with legislation, headings for rules are non-substantive and the board has agreed to this request. Some board members expressed concern that the title as amended might be misleading. Since it is a repeat of the heading of the statute the rule addresses, the board adopted the change. The board has added the terms "oral and written communications; immunology; preventive counseling and management with patients of special needs; and, legal and ethical aspects of dental hygiene practice." These additional course requirements were proposed so that all the Commission on Dental Accreditation accredited schools would be included. Section 9 was also added to provide that failing the clinical exam (required of all applicants) three times will mean that an applicant must attend a Commission on Dental Accreditation accredited school for two years. A similar provision is included in the statute. The board did not add the word "foreign" in sub-paragraph (2) as the inclusion would limit applicants to graduates of foreign schools only. Such a limitation would be impermissible as the board would by rule be limiting the scope of the legislation. The board did not add language providing for review of course materials other than transcripts and did not provide for review by directors of dental hygiene programs located in Texas. Except for the five course criteria added at the request of Dental Hygiene Advisory Committee, the course list and others required program criteria are the same criteria that an unaccredited program must meet before a dental hygienist is allowed to take the national board exams. (An applicant must have successfully completed this exam prior to applying for Texas licensure.) Thus, when an applicant comes to the board, his or her educational training will have been reviewed and approved by the exam administrators. The board's Credentials Review Committee will review each applicant, (the number of applicants is not expected to be large) and may seek input and evaluation assistance from the dental hygiene education community. The board questions the wisdom of requiring by rule that one or more representatives of that community serve on a reviewing committee since the board has no authority to require participation by individuals of the community. The 411 written comments fall into several categories of complaint. The categories and the number of complaints for each are set forth below. The total number of complaints by category exceeds 411 as many writers commented concerning more than one category: (1.) Non-specific opposition to the rule-many of these persons may not have actually read the rule but perhaps were responding to rumor about the rule, 78 comments; (2) complaints about the heading or failure to follow legislative intent, 15 comments; (3) the proposed course requirements are inadequate, 10 comments; (4) allowing licensure of graduates from an unaccredited school will tend to make the profession into a "trade", 70 comments; (5) incompetent hygienists will be allowed to practice, 92 comments; and (6) the lowered standards present a threat to public health and patient care, 146 comments. Most written complaints reflected a concern that the State Board of Dental Examiners intends to lower professional standards set for dental hygienists. The board believes that most of these responses were generated because a flyer was sent to all registered dental hygienists stating that their profession is "under attack." That flyer among other things mentioned rule making for this rule. Those letters for the most part are not directed at the rule specifically (no proposals for language changes were included in most) but appear to be in response to a vague sense that their profession is in danger. The dental hygiene profession faces no threat from the State Board of Dental Examiners. The board is following the course charted for it by the legislature by providing a rule to allow, under appropriate circumstances, graduates of unaccredited dental hygiene schools to become licensed. The board by rule is attempting to put into place a mechanism that adheres to the legislature's directives which includes assuring that licensees have graduated from a program that is educationally equivalent to accredited programs. The new section is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543a and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; and Article 4545a sec.2 which provide that the State Board of Dental Examiners may adopt rules relating to licensing of dental hygienists who have not graduated from a dental or dental hygiene school accredited by the Commission on Dental Accreditation of the American Dental Association and establish a procedure to determine educational equivalency of an applicant's school. sec.103.3.Licensure of Graduates of Foreign Dental Hygiene Schools or Programs. The State Board of Dental Examiners may grant a license to a graduate of a dental hygiene school or program not accredited by the Commission on Dental Accreditation of the American Dental Association upon payment of a fee, in the amount set by the Board, who meets all SBDE and State of Texas minimum applicant requirements, general licensure qualifications, and all of the following criteria: (1) Has submitted a completed application on a form provided by the SBDE; (2) Has presented a transcript in English from a dental or dental hygiene school which has a program equivalent to a Commission on Dental Accreditation of the American Dental Association dental or dental hygiene school or program. (A) If translation to English is necessary, all translations must be accomplished by a certified member of the American Translators and Interpreters Guild or the American Translators Association, provided the transcript is in a language for which certification is available. (B) If certification is not available, the translator must be a member of either organization listed above with at least three years experience interpreting the language in question. (C) Program equivalency is established by the following criteria: (i) the applicant must present proof in English that the program consists of a minimum of two academic years of full-time study, at the level of higher education or equivalent, involving at least 580 hours of clinical instruction, of which a maximum of 90 hours may be pre-clinical instruction; (ii) the program must consist of instruction in the following subjects: psychology; sociology; anatomy; physiology; biochemistry, general chemistry; microbiology; pathology; nutrition; pharmacology; pain control; tooth morphology; head, neck, and oral anatomy; oral embryology and histology; oral pathology; dental materials; periodontology; radiography; clinical dental hygiene (didactic and clinical instruction); oral health education; community dental health; patient management; medical and dental emergencies including basic life support; and infection and hazard control management; oral and written communications; immunology; preventative counseling and management with patients of special needs; and legal and ethical aspects of dental hygiene practice. (3) Has, after graduation as required, practiced dental or dental hygiene for five years immediately prior to applying; (4) Provides proof that no final or pending disciplinary action has been initiated in any jurisdiction in which he/she is or has been licensed; (5) Has passed a national written examination relating to dental hygiene as certified by the Joint Commission on National Dental Examinations; (6) Has successfully completed the appropriate clinical examination administered by the designated regional examining board; (7) Has successfully completed the SBDE's jurisprudence examination within six months prior to applying, and; (8) Provides proof of current certification in cardiopulmonary resuscitation given or approved by the American Heart Association or the American Red Cross; (9) An applicant for a license to practice dental hygiene under this rule 103.3 who fails three times the qualifying clinical examination required by subsection (6) of this rule 103.3 shall be required to attend and successfully complete a two-year dental hygiene program accredited by the Commission on Dental Accreditation of the American Dental Association. 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 24, 1997. TRD-9702712 Douglas A. Beran Executive Director State Board of Dental Examiners Effective date: March 18, 1997 Proposal publication date: December 24, 1996 For further information, please call: (512) 463-6400 CHAPTER 107.Dental Board Procedures 22 TAC sec.107.300 The State Board of Dental Examiners adopts new sec.107.300, concerning employment of dentists by non-profit corporations without changes to proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10488). The new rule establishes that dentists may be employed by certain organizations as mandated by the Texas Legislature through the Dental Practice Act. The Dental Practice Act provides at Article 4551 (a) that any person that by contract or any kind of agreement allows licensed dentists to provide dental services is practicing dentistry, which requires a license. The exception at Article 4551n was designed to allow non-profit organizations that qualify under federal law as community health centers, migrant worker health care providers, or providers of health care to homeless persons, to hire dentists to provide dental care. The rule provides a mechanism where by qualifying entities may apply to the board for approval. No comments were received regarding adoption of this new rule. The new section is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543a sec.2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; and Article 4551n which provides that the State Board of Dental Examiners shall adopt rules relating to employment of dentists setting forth procedures for approval of applications from qualifying health organizations for certification to hire dentists. 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 24, 1997. TRD-9702713 Douglas A. Beran Executive Director State Board of Dental Examiners Effective date: March 18, 1997 Proposal publication date: December 24, 1996 For further information, please call: (512) 463-6400 CHAPTER 109.Conduct Professional Signs 22 TAC sec.109.2 The State Board of Dental Examiners adopts amendment to sec.109.2 concerning redesignation of a dental practice specialty without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10489). The amended rule changes the dental specialty currently designated as "oral pathology" to "oral and maxillofacial pathology" to comply with Resolution 67H- 1995 adopted by the American Dental Association House of Delegates in 1995. The amended rule provides clarification to the general public that dentists who limit their practices to oral pathology may announce that they are "specialists" in oral and maxillofacial pathology or that their practices are "limited" to oral and maxillofacial pathology. No comments were received regarding adoption of this amended rule. The amendment is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543a sec.2 and Article 4551d sec.2 which provide the State Board of Dental Examiners with the authority to adopt and prescribe rules and regulations in harmony with the provisions of the Dental Practice Act. 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 24, 1997. TRD-9702714 Douglas A. Beran Executive Director State Board of Dental Examiners Effective date: March 18, 1997 Proposal publication date: December 24, 1996 For further information, please call: (512) 463-6400 Gifts and Premiums 22 TAC sec.109.91 The State Board of Dental Examiners adopts amendment an to sec.109.91 concerning gifts and premiums without changes to the proposed text as published in the December 24, 1996, issue of the Texas Register (21 TexReg 12353). The amended rule clarifies the current rule by deleting language that may be viewed as prohibiting a practitioner from displaying his/her name on any materials that a licensee may provide as part of charitable or community service efforts, or upon advertising media. The prior rule prohibited a practitioners from displaying his/her name on any materials, i.e., tee shirts, pens, and other items that a dentist or dental organization may provide as part of charitable or community service efforts or as permissible advertising pursuant to Article 4548f. The language in the rule as amended is sufficient to proscribe any activity designed to reimburse persons for securing patients for dentists. No comments were received regarding adoption of the amended rule. The amendment is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543a sec.2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act. 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 24, 1997. TRD-9702700 Douglas A. Beran Executive Director State Board of Dental Examiners Effective date: March 18, 1997 Proposal publication date: December 24, 1996 For further information, please call: (512) 463-6400 Prohibitions 22 TAC sec.109.107 The State Board of Dental Examiners adopts amendments to sec.109.107, concerning redesignation of a dental practice specialty without changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10490). The amended rule changes the dental specialty currently designated as "oral pathology" to "oral and maxillofacial pathology" to comply with Resolution 67H- 1995 adopted by the American Dental Association House of Delegates in 1995. The amended rule provides clarification to the general public that dentists who limit their practices to oral pathology may announce that they are "specialists" in oral and maxillofacial pathology or that their practices are "limited" to oral and maxillofacial pathology. No comments were received regarding adoption of this amended rule. The amendment is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543a sec.2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act. 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 24, 1997. TRD-9702715 Douglas A. Beran Executive Director State Board of Dental Examiners Effective date: March 18, 1997 Proposal publication date: December 24, 1996 For further information, please call: (512) 463-6400 Fair Dealing 22 TAC sec.109.141 The State Board of Dental Examiners adopts an amendment to sec.109.141, concerning disclosure without changes to the proposed text as published in the December 24, 1996, issue of the Texas Register (21 TexReg 12354). The amended rule brings the State Board of Dental Examiners into compliance with the Health Professions Council Act regarding plain language explanations of billing statements. The rule is amended by adding section (b) to require that upon request a dentist provide a plain language explanation of charges for professional services. Such requirement is imposed by statute at Article 4512p sec.(5). The statute provides no guidance concerning the meaning of the term "plain language." To avoid a subjective interpretation by a licensee that medical or dental jargon is plain language, the rule proscribes using words that are terms of art or that have specialized meaning in a health care context. No Comments were received regarding adoption of the amended rule. The amendment is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543a sec.2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; and Article 4512p sec.5 of the Health Professions Council Act. 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 24, 1997. TRD-9702701 Douglas A. Beran Executive Director State Board of Dental Examiners Effective date: March 18, 1997 Proposal publication date: December 24, 1996 For further information, please call: (512) 463-6400 Definitions 22 TAC sec.109.211 The State Board of Dental Examiners adopts an amendment to sec.109.211, concerning definitions of unprofessional conduct, dishonorable conduct, and immoral conduct when applied to the conduct of a dental licensees with changes to the proposed text as published in the December 24, 1996, issue of the Texas Register (21 TexReg 12355). The amended rule brings the State Board of Dental Examiners into compliance with provisions of the Health Professions Council Act, Texas Revised Civil Statute, Article 4512p sec.5(b). The amended rule includes four additional activities that are to be included within the definition of unprofessional, dishonorable and immoral conduct. New paragraph (14) provides that being convicted of any felony or of any misdemeanor involving fraud is behavior that is included within the definition. Paragraph (14) as adopted is changed from the published rule by dropping the words "Proof of" from the section. This deletion was made for clarity. The Dental Practice Act at Article 4549 sec.2(b) provides that such conviction may be cause for imposition of sanctions upon a licensee. Such activity heretofore has not been defined by rule, the purpose is to include it in a rule. Paragraph (15) includes within the rule definition activity that may contribute to violation by others of the Dental Practice Act though such activity is not specifically enunciated. The Act at Article 4551a (4) provides that anyone who owns or operates any business through which dental services are provided is practicing dentistry. Practice by such individuals or organizations that are not authorized by law, i.e., for-profit corporations, though illegal is beyond the reach of the State Board of Dental Examiners, except for assisting proper law enforcement authorities in the prosecution of violators. The agency is charged with responsibility to adopt and enforce rules that, among other things, ensure compliance with laws regulating the practice of dentistry. The purpose of this rule is to establish that practice by a licensee through or under a person not authorized to practice is a violation. By defining such actions as dishonorable, they are proscribed by the Act and are sanctionable. Article 4549 sec.2(C) Paragraph (16) and (17) are added to include activity prohibited by Texas Civil Statute, Article 4512p (Vernon Pamph. 1996). That section provides that health care providers may not persistently or flagrantly overcharge or over treat a patient. The term "overcharge" is defined to mean charging a patient, without reasonable justification, more than the provider ordinarily charges others for the same service. Rather than address the magnitude of fees charged, the rule only requires that all patients be charged the same fees unless there is justification for a different charge. If a health care provider charges outrageous fees, when compared to fees charged by other providers to all patients for a given service, demand for that service will be affected. No comments were received regarding adoption of this amended rule. The amendment is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543a sec.2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act, and Texas Civil Statutes, and Article 4512p sec.5(b) of the Health Professions Council Act which proscribes certain treatment and billings practices for health care providers. sec.109.211.Unprofessional, Dishonorable, and Immoral Conduct. Unprofessional conduct, dishonorable conduct, and immoral conduct are synonymous terms when applied to the conduct of a dental licensee and include the following: (1)-(13) (No change.) (14) Conviction of any felony or misdemeanor involving fraud under the laws of this State or any other State or of the United States. (15) Providing dental services to any patient while employed by, or under any kind of contract whatsoever, with any person not licensed to practice dentistry or while such person's dental license is currently expired, surrendered, suspended, or revoked, or providing dental services to any patient while employed, by or under any kind of contract whatsoever with, any organization not authorized by law to provide dental services. (16) Persistently or flagrantly overtreating a dental patient. (17) Overcharging a dental patient. For this rule the meaning of the term "overcharging" includes, but is not limited to, collecting or attempting to collect a fee without reasonable justification for any element of dental services provided to a patient that is in excess of the fee the dentist ordinarily charges to others for the same service. 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 24, 1997. TRD-9702702 Douglas A. Beran Executive Director State Board of Dental Examiners Effective date: March 18, 1997 Proposal publication date: December 24, 1996 For further information, please call: (512) 463-6400 CHAPTER 115.Extension of Duties of Auxiliary Personnel Dental Hygiene 22 TAC sec.115.2 The State Board of Dental Examiners adopts an amendment to sec.115.2 concerning permitted duties of dental hygienists with changes to the proposed text as published in the December 24, 1996, issue of the Texas Register (21 TexReg 12356). The Board on motion of a member adopted new language to clarify that the permit is for nitrous oxide/oxygen inhalation conscious sedation. The amended rule establishes that dental hygienists who are appropriately trained and certified may apply pit and fissure sealants and monitor patients receiving nitrous oxide/oxygen inhalation conscious sedation. Amendments to sec.115.2(1) remove current restrictions to Texas dental and dental hygiene schools so that certifications for applying pit and fissure sealants can be obtained from any accredited school and clarify that a certificate must be obtained from the State Board of Dental Examiners. Since dental hygienists who have graduated from any accredited school, after examination may be licensed in Texas, a requirement that pit and fissure training be obtained only in a Texas school is not justifiable. Amendments to sec.2 clarify the process by which certified persons may monitor administration of nitrous oxide conscious inhalation sedation and clarify that such required certification is obtained from the State Board of Dental Examiners. All proposed amendments were reviewed and approved by the Dental Hygiene Advisory Committee as directed by Section 27 (Statutory Notes) of the Dental Practice Act. No comments were received regarding adoption of the amended rule. The amendment is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543a sec.2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; and Article 4551e and Article 4551e-1 which provide that the State Board of Dental Examiners may adopt rules relating to permitted duties of dental hygienists and auxiliary personnel. sec.115.2.Permitted Duties. In addition to those duties identified in Article 4451e-1(b)(2), a dental hygienist may perform the following services and procedures in the dental office of his/her dentist-employer under his/her general supervision, direction and responsibility, to wit: (1) apply pit and fissure sealants only after successful completion of a course of instruction in a dental or dental hygiene school or college accredited by the Commission on Dental Accreditation of the American Dental Association and approved by the State Board of Dental Examiners and after receipt of certification by the State Board of Dental Examiners. Certification to apply pit and fissure sealants in Texas may be obtained by submitting a written request accompanied by required proof of course completion. (2) monitor patients receiving nitrous oxide/oxygen inhalation conscious sedation only after obtaining certification issued by the State Board of Dental Examiners and only under the direct supervision of a Texas licensed dentist. Certification may be obtained by successful completion of the certification examination offered by the State Board of Dental Examiners. 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 24, 1997. TRD-9702703 Douglas A. Beran Executive Director State Board of Dental Examiners Effective date: March 18, 1997 Proposal publication date: December 24, 1996 For further information, please call: (512) 463-6400 CHAPTER 116.Dental Laboratories 22 TAC sec.116.2 The State Board of Dental Examiners adopts an amendment to sec.116.2 concerning the definition of a dental technician with changes to the proposed text as published in the December 24, 1996, issue of the Texas Register (21 TexReg 12357). The amended rule as published broadened the definition of a dental technician and removed the time work component from the definition. That component is addressed elsewhere in these rules. It also provided that a dental technician could perform services only in commercial, or in house laboratories. Comments were received from the Dental Laboratory Association of Texas regarding adoption of the amended rule. The Dental Laboratory Association of Texas filed written comments concerning the rule and requested that the last sentence of the published rule be deleted. The Association pointed out that dental technicians may on occasion be asked to go to a dentist's office to perform a service such as shade taking. The State Board of Dental Examiners agrees that the proposed change should be made as the intent of the last sentence was to prohibit dental technicians from operating in a free lance mode. Other provisions of the statute and rules prohibit such activity as dental technicians may not perform services without a prescription or work order and only dentists may only provide work orders or prescriptions to registered laboratories. The amendment is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543a sec.2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; and Article 4551f which provides that the State Board of Dental Examiners may adopt rules relating to dental technicians and dental laboratories. sec.116.2.Dental Technician. A "Dental Technician" is a person who performs the services as set out in Article 4551f (1) and includes, but is not limited to, all certified dental technicians who have a current certificate issued by the National Board For Certification For Dental Laboratory Technology or its successor. 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 24, 1997. TRD-9702704 Douglas A. Beran Executive Director State Board of Dental Examiners Effective date: March 18, 1997 Proposal publication date: December 24, 1996 For further information, please call: (512) 463-6400 22 TAC sec.116.3 The State Board of Dental Examiners adopts an amendment to sec.116.3, concerning dental laboratory requirements with changes to the proposed text as published in the December 24, 1996, issue of the Texas Register (21 TeReg 12357). As published the amended rule clarifies that commercial and in house dental laboratories employing or using the services of more than two dental technicians must be registered. Subsection (a)(l) which permits shade taking is expanded to include specific infection control requirements. Subsection (b) was amended to require that laboratories maintain prescriptions for two years. The applicable statute, Article 4551f sec.3(b) imposes the same requirement. Subsection (c) was added to provide that a certified dental technician must be on the premises of a laboratory, at least 30 hours per week and that a dental technician may be designated as a certified dental technician for only one laboratory. This provision was added to prevent dental technicians from serving as the certified dental technician for more than one laboratory, as the Dental Laboratory Certification Council had indicated this was a problem. Subsection (d) was added to spell out the criteria for which the Dental Laboratory Certification Council will review each application to determine eligibility for registration. Subsection (e) was added based upon a request from the Dental Laboratory Certification Council for a provision that would prevent laboratories' owners or operators from registering any new laboratory if such operator or owner has unpaid fees or penalties from a previous registration, until such fees or penalties are paid. Subsection (f) was added to ensure that laboratories maintain with the board current information concerning the status of a laboratory and its certified dental technicians. Currently, once a laboratory has renewed its annual registration it may change a certified dental technician or dental technician without establishing that the replacement is currently in compliance with continuing education requirements. Subsection (g) was added to require that all laboratories be maintained in a clean and sanitary condition. Written comments were made only by the Dental Laboratory Certification Council. The Association recommends that subsection (a)(1)(E) be amended to add after the word "mirror" the term "for extraoral use." The recommended changes is intended to make it clear that the mirror a dental technician may use is for external use only. The board accepts this recommendation. The association commented that subsection (b) should provide that work could only be farmed out to registered laboratories. The board agrees with the proposal. The state's interest in the condition under which dental laboratory work is performed extends to work that is "farmed out" and requirements that farmouts, which are recognized in the statute, may only be made to registered laboratories is reasonable. The association suggested that subsection (f) should be changed to allow six months' time for newly designated Certified Dental Technicians to meet continuing education requirements as 60 days set forth in the published rule may not be sufficient time for completion of courses if needed by the new designee. The board accepts this proposal. The amendment is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543a sec.2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; and Article 4551f which provides that the State Board of Dental Examiners may adopt rules relating to dental technicians and laboratories. sec.116.3.Requirements. (a) A commercial dental laboratory and an in-house dental laboratory with more than two dental technicians shall be registered according to the provisions of Texas Civil Statutes, Article 4551f (6) (a)-(c), if it is a place where a person undertakes to perform or accomplish any act or service listed in Texas Civil Statutes, Article 4551f(1). Permitted services to be performed under a written prescription from a licensed dentist in addition to those described in Article 4551f(1), include: (1) Shade taking. Dental laboratories providing this service shall institute and maintain infection control procedures for in-laboratory shade verification to protect the patient and laboratory staff from infectious contamination. Each laboratory shall: (A) Dedicate a specific area of the laboratory for performance of shade verification procedures. (B) Maintain the area used for shade verification in a neat, clean, and clutter free state at all times. (C) Disinfect areas of patient contact both before and after each patient. (D) Provide a dedicated set of shade guides to be used only for patient shade verification. Disinfect shade guides before and after each use. (E) Provide a patient hand mirror for extraoral use. Disinfect mirror before and after each patient use. (F) Use a disinfecting agent for cleaning shade guides that are accidentally dropped. (G) Require that the technicians taking the shade wear protective clothing, including gloves. (2) Computer imaging as pertaining to the oral cavity by a registered laboratory. Computer imaging may be accomplished only when authorized by a written prescription from a licensed dentist. The result should be furnished to that dentist accompanied by a disclaimer to the patient that computer imaging is an artistic interpretation and does not guarantee exact results. (b) A dental laboratory shall furnish each licensed dentist from whom prescriptions are accepted with its permanent registration number and expiration date of such registration, and shall maintain for a period of two years any work orders of any laboratory with which it contracts services. The work order shall reflect the Texas registration number and registration expiration date of the contracted laboratory. No work may be farmed out except to a Texas registered dental laboratory. (c) All dental laboratories first registered after September 1, 1987 must have a certified dental technician on premises a minimum of 30 hours per week. The certified dental technician may be the designated CDT of record for only one laboratory per registration period. (d) The Dental Laboratory Certification Council shall ensure that the following criteria are met for each new laboratory registration application and each renewal of any registration. (1) application/renewal is complete and all required information is provided. (2) current and active CDT certification for designated CDT, or, for grandfathered laboratories, proof of continuing education hours as outlined in sec.116.4 of this title (relating to Continuing Education) is attached and current. (3) appropriate fee is attached. (e) Any laboratory owner applying for a new laboratory registration who has pending fees and/or penalties due from a previous laboratory registration when such laboratory was closed for non compliance with subsection (f) of this section must first remit to the SBDE the registration fee and penalties for each year such fees were not paid before the registration is approved and processed. (f) It shall be the duty of each laboratory owner to notify the SBDE in writing within 60 days of a change in: location of laboratory, closure of laboratory, the designated CDT or, in the case of a grandfathered lab, the designated employee. Changes of CDT's will require that proof of current CDT certification for the replacement CDT accompany said notification. Changes of designated employees for a grandfathered lab will require proof within six (6) months of the change that the designated employee meets continuing education requirements. (g) A person owning or operating a laboratory in the State of Texas must maintain the entire laboratory in a clean and sanitary condition without any accumulation of trash, debris, or filth, and such premises shall be maintained in full compliance with all health requirements of the city or county, or both, in which such a laboratory is located and in conformity with the health laws of the State of Texas. 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 24, 1997. TRD-9702705 Douglas A. Beran Executive Director State Board of Dental Examiners Effective date: March 18, 1997 Proposal publication date: December 24, 1996 For further information, please call: (512) 463-6400 22 TAC sec.116.4 The State Board of Dental Examiners adopts an amendment to sec.116.4, concerning continuing education criteria for Texas dental laboratories with the changes to proposed text as published in the December 24, 1996, issue of the Texas Register (21 TexReg 12358). The amended rule provides for assurance of continued competence of dental technicians. Written comments were received from the Dental Laboratory Association of Texas which proposed that the rule provide for certification by National Board for Certification For Dental Laboratory Technology or its successor, to provide for a possible name change of the certifying entity. The board accepts this proposal. The amendment is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543a sec.2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; and Article 4551f which provides that the State Board of Dental Examiners may adopt rules relating to dental technicians and laboratories. sec.116.4.Continuing Education. (a) Any laboratory renewing a certificate must provide proof that: (1) the designated CDT has met the continuing education requirements of the National Board For Certification For Dental Laboratory Technology, or its successor, or; (2) in the case of grandfathered laboratories that the designated employee working on the premises of the dental laboratory has completed at least 12 hours of continuing education during the preceding 12 month period. Continuing education hours may only be used for one renewal period. (b) The continuing education shall be comprised of business management, infection control, and technical competency courses presented in seminars or clinics as accepted by a nationally recognized organization of dentistry or dental technology. The designated employee must complete at least one course in infection control annually. No more than one course in business management taken annually may be applied toward the continuing education requirement. Self study in a course approved by a nationally recognized organization of dentistry or dental technology may be taken for not more than four hours of the annual requirement. (c) In lieu of furnishing proof of continuing education as set forth in subsection (b) of this section, the dental laboratory may furnish proof that the designated dental technician has a current certification by the National Board For Certification For Dental Laboratory Technology or its successor. Certification as retired does not qualify the technician. 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 24, 1997. TRD-9702706 Douglas A. Beran Executive Director State Board of Dental Examiners Effective date: March 18, 1997 Proposal publication date: December 24, 1996 For further information, please call: (512) 463-6400 22 TAC sec.116.5 The State Board of Dental Examiners adopts an amendment to sec.116.5, concerning dental laboratory exemptions without changes to the proposed text as published in the December 24, 1996, issue of the Texas Register (21 TexReg 12359). The amended rule clarifies that grandfathered laboratories, those registered prior to September 1, 1987, will relinquish their grandfathered status if they fail to renew their annual registrations before they expire each year. The amended rule requires that to be a designated employee, the employee must work on the premises of the dental laboratory at least 30 hours per week. No comments were received regarding adoption of this amended rule. The amendment is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543a sec.2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; and Article 4551f which provides that the State Board of Dental Examiners may adopt rules relating to dental technicians and laboratories. 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 24, 1997. TRD-9702707 Douglas A. Beran Executive Director State Board of Dental Examiners Effective date: March 18, 1997 Proposal publication date: December 24, 1996 For further information, please call: (512) 463-6400 22 TAC sec.116.20 The State Board of Dental Examiners adopts new sec.116.20, concerning definitions of words and terms used in Chapter 116, Dental Laboratories without changes to the proposed text as published in the December 24, 1996, issue of the Texas Register (21 TexReg 12360). The new rule clarifies the terminology used in dental laboratory rules. No comments were received regarding adoption of the new rule. The new rule is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543a sec.2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; and Article 4551f which provides that the State Board of Dental Examiners may adopt rules relating to dental technicians and laboratories. 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 24, 1997. TRD-9702708 Douglas A. Beran Executive Director State Board of Dental Examiners Effective date: March 18, 1997 Proposal publication date: December 24, 1996 For further information, please call: (512) 463-6400 22 TAC sec.116.22 The State Board of Dental Examiners adopts an amendment to sec.116.22, concerning In House dental laboratories without changes to the proposed text as published in the December 24, 1996, issue of the Texas Register (21 TexReg 12360). The new rule includes the employees of a dentist operating an in-house laboratory and includes a requirement similar to a statutory requirement, that the in house laboratory be on the premises where the dentist or dental organization practices dentistry. No comments were received regarding adoption of this rule. The amendment is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543a sec.2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; and Article 4551f which provides that the State Board of Dental Examiners may adopt rules relating to dental technicians and laboratories. 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 24, 1997. TRD-9702709 Douglas A. Beran Executive Director State Board of Dental Examiners Effective date: March 18, 1997 Proposal publication date: December 24, 1996 For further information, please call: (512) 463-6400 22 TAC sec.116.24 The State Board of Dental Examiners adopts new sec.116.24, concerning criteria used when reviewing dental laboratory registration applications with changes to the proposed text as published in December 24, 1996, issue of the Texas Register (21 TexReg 12361). The new rule as published provided that the Dental Laboratory Certification Council would review all applications and recommend applications for registration to assure qualified dental laboratories are registered by the State Board of Dental Examiners. Written comments were received from the Dental Laboratory Association of Texas. The association proposed that the wording of the rule be amended to include wording in the statute that provides that the Dental Laboratory Certification Council shall review all applications to determine if they are eligible for registration. The board agrees with this proposed change. The new rule is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543a sec.2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; and Article 4551f which provides that the State Board of Dental Examiners may adopt rules relating to dental technicians and laboratories. sec.116.24.Registration Application. The Dental Laboratory Certification Council (DLCC) shall review each application for registration or renewal of registration to determine if the applicant meets the requirements of Article 4551f. The DLCC shall provide the Board with a list of applicants who are eligible for registration with the Board. Applications will be forwarded with a recommendation to the State Board of Dental Examiners for registration if the provisions of Article 4551f and the rules in this section are met and the following criteria are met: (1) application/renewal is complete and all required information is provided, (2) current and active CDT certification for designated CDT, or, for grandfathered laboratories, proof of continuing education hours as outlined in sec.116.4 of this title (relating to Continuing Education) is attached and current, (3) appropriate fee is attached. 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 24, 1997. TRD-9702710 Douglas A. Beran Executive Director State Board of Dental Examiners Effective date: March 18, 1997 Proposal publication date: December 24, 1996 For further information, please call: (512) 463-6400 22 TAC sec.116.25 The State Board of Dental Examiners adopts new sec.116.25, concerning the responsibility of the owner and manager of a dental laboratory in Texas without changes to the proposed text as published in the December 24, 1996, issue of the Texas Register (21 TexReg 12361). The new rule clarifies that the owner and manager of a laboratory are directly responsible for the registrations and operations of a laboratory and are subject to criminal penalties and loss of registration. No comments were received regarding adoption of this new rule. The new rule is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543a sec.2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; and Article 4551f which provides that the State Board of Dental Examiners may adopt rules relating to dental technicians and laboratories. 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 24, 1997. TRD-9702711 Douglas A. Beran Executive Director State Board of Dental Examiners Effective date: March 18, 1997 Proposal publication date: December 24, 1996 For further information, please call: (512) 463-6400 CHAPTER 117.Faculty and Students in Accredited Dental Schools or College 22 TAC sec.117.1 The State Board of Dental Examiners adopts an amendment to sec.117.1 concerning exemption status for faculty members, students, dental interns, and dental residents in accredited dental schools or colleges with changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10490). The amended rule sets forth in rule the statutory exemption for faculty, dental students, dental residents, dental interns, dental hygiene students and provides for SBDE identification numbers and fees. The amended rule provides clarification that faculty, students, interns, and residents may provide clinical dental services to the public but within the confines of a dental school program and not via private practice and that faculty, interns, and residents may prescribe controlled substances in the clinical practice via a unique identification number that is issued by the State Board of Dental Examiners but is not equivalent to a Texas dental license. The title to Chapter 117 is changed to clarify that it applies to faculty and students and to track the statutory language specifying accredited schools or colleges. Comments were received from the Dental Hygiene Advisory Committee on December 6, 1996, and from the Texas Dental Hygienists' Association. The association pointed out that it believed the board could not adopt the language in the rule concerning dental hygienists unless the language was first proposed by the Dental Hygiene Advisory Committee or the public. The board is not persuaded by this comment as the Dental Hygiene Advisory Committee was provided with full opportunity to comment concerning the rule and in fact the board has adopted changes proposed by the Dental Hygiene Advisory Committee. The Dental Hygiene Advisory Committee proposed that the exemption language for dental hygiene students be the same as for dental students in so far as requirements for supervision by faculty members are set forth. The two exemptions are worded somewhat differently since the statutory language for each exemption is different. Nonetheless, the request that the rule require faculty supervision for dental hygiene students is reasonable even though the statute does not include such a requirement. Accordingly, the recommendations of the Dental Hygiene Advisory Committee are included in the rule as adopted. The amendment is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543a sec.2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; Article 4543a sec.2 which provides the State Board of Dental Examiners with the authority to adopt and prescribe rules and regulations in harmony with the provisions of the Dental Practice Act, Articles 4543 et seq; Article 4551b sec.9 which provides that the Board may by rule define the conditions under which residents and interns are exempt from certain provisions of the Dental Practice Act, and Article 4551b sec.10 which provides an exemption for dental hygiene students, and Article 4551b(l) which provides an exemption for dental school faculty and Article 4551(b)(2) which provides an exemption for students of dental schools. sec.117.1.Exemptions. (a) The definition of dentistry as contained in Texas Civil Statutes Articles 4543-4551j, as amended, shall not apply to the following: (1) Members of the faculty of a reputable dental college or school who are not licensed to practice dentistry in Texas where such faculty members perform their services for the sole benefit of such school or college. (2) Students of a reputable dental college or school who are candidates for a degree and who perform their operations without pay except for actual cost of materials, in the presence of and under the direct personal supervision of a demonstrator or teacher who is a member of the faculty of a reputable dental college or school approved by the State Board of Dental Examiners, or for and on behalf of and in a school, hospital, state institution, public health clinic, or other facility approved for student dental service by the State Board of Dental Examiners. (3) Students of a reputable dental hygiene college or school who are candidates for a degree who practice dental hygiene without pay in strict conformity with the laws of this state regulating the practice of dental hygiene under the direct personal supervision of a demonstrator or teacher who is a member of the faculty of a reputable dental hygiene college or school approved by the State Board of Dental Examiners, or for and on behalf of and in a school, hospital, state institution, public health clinic, or other faculty approved for student dental hygiene service by the State Board of Dental Examiners. (4) Dental interns who pursue advanced education in dentistry under the auspices of an institution, such as a dental school or hospital, which offers the type of advanced program designed to meet accreditation requirements as established by the Commission on Dental Accreditation of the American Dental Association. Dental interns may perform any clinical service included in the program of advanced education for which he/she is enrolled, as long as such service is accomplished under the auspices of the sponsoring institution, and as authorized by the program supervisor. A dental intern not licensed in Texas may not assess fees for clinical services rendered. An unlicensed dental intern may not engage in private practice. (5) Dental residents who pursue advanced education in dentistry under the auspices of an institution, such as a dental school or hospital, which offers the type of advanced program designed to meet accreditation requirements as established by the Commission on Dental Accreditation of the American Dental Association. The residency program usually follows an internship and the objective customarily is to prepare specialists in selected fields of clinical dentistry. Dental residents may perform any clinical service included in the program of advanced education for which he/she is enrolled, as long as such service is accomplished under the auspices of the sponsoring institution, and as authorized by the program supervisor. A dental resident not licensed in Texas may not assess fees for clinical services rendered. An unlicensed dental resident may not engage in private practice. (b) Members of the faculty of a reputable dental college or school who perform their services for the sole benefit of such school or college shall be entitled to apply for and to receive a non-renewable identification number issued by the SBDE to be used solely for the purpose of applying for a Controlled Substances narcotics registration from the Texas Department of Public Safety and the Drug Enforcement Administration to prescribe, administer, or dispense controlled substances. (c) Dental interns and residents shall be entitled to apply for and to receive an identification number issued by the SBDE to be used solely for the purpose of applying for a Controlled Substances narcotics registration from the Texas Department of Public Safety and the Drug Enforcement Administration to prescribe, administer, or dispense controlled substances. (d) The SBDE will void each identification number issued to faculty members two years after the date of issuance. Identification numbers issued to interns and residents will be voided upon the termination of the internship or residency as applicable. (e) The SBDE will notify the Texas Department of Public Safety and the Drug Enforcement Administration when an identification number is issued and when an identification number is voided. (f) Each application for an SBDE identification number shall be accompanied by a fee in an amount set by the Board. 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 24, 1997. TRD-9702716 Douglas A. Beran Executive Director State Board of Dental Examiners Effective date: March 18, 1997 Proposal publication date: December 24, 1996 For further information, please call: (512) 463-6400 CHAPTER 119.Special Areas of Dental Practice 22 TAC sec.119.3 The State Board of Dental Examiners adopts an amendment to sec.119.3, concerning redesignation of a dental practice specialty with changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10491). The amended rule changes the dental specialty currently designated as "oral pathology" to "oral and maxillofacial pathology" to comply with Resolution 67H- 1995 adopted by the American Dental Association House of Delegates in 1995. The amended rule provides clarification to the general public of terminology regarding the dental specialty "oral and maxillofacial pathology." The title is changed to include the words "and Maxillofacial". No comments were received regarding adoption of this amended rule. The amendment is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Article 4543 a sec.2 and Articles 4543 and Article 4551d which State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act. 119.3. Oral and Maxillofacial Pathology. Oral and maxillofacial pathology is that branch of science which deals with the nature of the diseases affecting the oral and adjacent regions, through study of its causes, its processes and its effects, together with the associated alterations of oral structure and function. The practice of oral and maxillofacial pathology shall include the development and application of this knowledge through the use of clinical, microscopic, radiographic, biochemical or other laboratory examinations or procedures as may be required to establish a diagnosis and/or gain other information necessary to maintain the health of the patient, or to correct the result of structural or functional changes produced by alterations from the normal. 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 24, 1997. TRD-9702717 Douglas A. Beran Executive Director State Board of Dental Examiners Effective date: March 18, 1997 Proposal publication date: December 24, 1996 For further information, please call: (512) 463-6400 TITLE 31. NATURAL RESOURCES AND CONSERVATION PART X. Texas Water Development Board CHAPTER 371. Drinking Water State Revolving Fund The Texas Water Development Board adopts new Chapter 371, concerning the creation, capitalization by federal grant and state match, purposes and administration of the drinking water state revolving fund (dwsrf). Sections 371.2, 371.12, 371.13, 371.18, 371.20, 371.35, and 371.102 are adopted with changes to the proposed text as published in the January 14, 1997, issue of the Texas Register (22 TexReg 708). Sections 371.1, 371.3, 371.4, 371.11, 371.14- 371.17, 371.19, 371.21, 371.31-371.34, 371.36-371.39, 371.51, 371.52, 371.61, 371.62, 371.71, 371.72, 371.81-371.89, and 371.101 are adopted without changes to the proposed text as published in the January 14, 1997, Texas Register (22 TexReg 708) and will not be republished. The fund will provide low interest loans to eligible applicants of the state pursuant to 42 United States Code 300f et seq. and the Texas Water Code, sec.sec.15.601-l5.609 and 17.0821. Comments on the proposed sections were received from the Environmental Protection Agency, Texas Rural Water Association, and the City of Edinburg. The comments centered around the need for additional language for clarification, the method of providing financial assistance, and affordability factors in the rating system. The following changes have been made to address clarification issues. Section 371.2, Definition of Terms, changes the cite of the Safe Drinking Water Act and revises "administrative costs" to clarify that "servicing debt obligation" is limited to the State's administrative costs of servicing debt obligations. Further, the definition of "population" is revised to require that applicant-supplied data must be acceptable to the Executive Administrator and must include information on the population for which the project is designed. Section 371.12, Types of Financial Assistance, has been changed to entitle the section "Uses of the Fund" and to add new subsection (6) which provides that the fund may be used for up to 4% of the funds allotted to the State to cover the reasonable costs of administration of the program. Section 371.13, Projects Eligible for Assistance, is revised to read that projects are eligible for assistance if they will facilitate compliance with secondary as well as primary drinking water regulations. Further, sec.371.13 now specifies that projects are not eligible for DWSRF funds if the primary purpose of the project is to supply or attract growth. Section 371.18, Capitalization Grant Requirements for Applicants, which lists federal requirements that must be satisfied is changed to include Executive Order 12549, Debarment and Suspension, and the Wilderness Act. Section 371.20, Intended Use Plan, is changed to add paragraph (b)(4) providing a public notice period of 30 days prior to and a comment period for 30 days following the public hearing on the Intended Use Plan. Section 371.35, Required Environmental Review and Determinations, has been changed at sec.371.35(b)(2)(B) to add the requirement of the applicant's Responsiveness Summary to the issues raised at the public hearing on the project as part of the information that must be submitted to the executive administrator. The section is changed to add to the requirement of an Environmental Assessment, sec.371.35(c)(2)(G), a summary of the public comments and the response to those comments by the applicant. Reference to the Wilderness Act is added at sec.371.35(d). Section 371.102, Final Accounting, is changed to clarify that the applicant will retain construction records for three full state fiscal years. One commenter expressed concern that requiring every applicant to provide a water conservation plan may conflict with the Safe Drinking Water Act (Act) as an automatic exclusion from funding. The comment acknowledges the exemptions to the requirement; that is, where the request for funding is for $500,000 or less or an emergency exists. Response: The Act recognizes the importance of water conservation and adds a new section on water conservation to the Act. Section 1455 (a) and (b) of that Act set out requirements for EPA to develop and publish guidelines for water conservation plans within approximately the next eighteen months. The Act further provides that states may require submission of water conservation plans that are consistent with the guidelines as a condition of funding from the DWSRF. Therefore, because of the State statutory requirement for water conservation plans and the intent of the Act to encourage water conservation plans, staff does not recommend that the language of this section of the proposed rule be revised. One commenter opposed requiring a bond counsel and financial advisor to access the DWSRF and expressed concern that DWSRF loan requests for amounts under $250,000 will not be economically feasible because of the requirement to hire a bond counsel and financial advisor. Response: Staff is currently examining this question and may consider future changes to the rule. One commenter expressed concern that the sec.371.19(c) Affordability Factor, while allowing a rating factor for areas where the per capita income averages 25% or more below the state average, does not allow Economically Distressed Areas to compete effectively with other areas of the State. The commenter contends that the identified Economically Distressed Areas should receive a greater rating factor due to the extreme indigence associated with this designation. Response: TNRCC has developed a priority rating criteria which are based on data currently available and which assigns greater priority ratings to water systems presenting greater risks to public health. The criteria includes an affordability factor which is added to the sum of all the public health risk- associated factors. So affordability is considered in the development of the criteria. However, in the Act, itself, considerations of affordability do not outweigh public health risk factors. Staff therefore disagree with a revision to the section as proposed. Introductory Provisions 31 TAC sec.sec.371.1-371.4 The new sections are adopted under the authority of the Texas Water Code, sec.6.101 and sec.15.605 which provide the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State and specifically the SRF Program. sec.371.2. Definitions of Terms. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Words defined in the Texas Water Code, Chapter 15 and not defined here shall have the meanings provided by Chapter 15. Act - The federal Safe Drinking Water Act, as amended 1996, and its subsequent amendments or successor provisions. Administrative costs - All reasonable and necessary costs of administering any aspect of the DWSRF program, including administrative costs associated with servicing debt obligations of recipients of DWSRF financial assistance. Administrator - The chief officer of the Environmental Protection Agency appointed by the President of the United States. Applicant - An eligible applicant which files an application with the board for financial assistance or associated actions. Application for assistance - All the information required for submittal in: sec.371.32 of this title (relating to Required General Information), sec.371.33 of this title (relating to Required Fiscal Data), sec.371.34 of this title (relating to Required Legal Data), sec.371.35 of this title (relating to Required Environmental Review and Determinations), sec.371.36 of this title (relating to Required DWSRF Engineering Feasibility Report), and sec.371.37 (relating to Required Water Conservation Plan), or sec.371.38 of this title (relating to Pre-Design Funding Option) for those applicants choosing the pre- design funding option. Authorized representative - The signatory agent of the applicant authorized and directed by the applicant's governing body to make application for assistance and to sign documents required to undertake and complete the project, on behalf of the applicant. Board - The Texas Water Development Board. Bonds - All bonds, notes, certificates, book-entry obligations, and other obligations issued or authorized to be issued by any political subdivision. Building - The erection, acquisition, alteration, remodeling, improvement or extension of a water project. Capitalization grant - Federal grant assistance awarded to the state for capitalization of the Drinking Water State Revolving Fund. Closing - The time at which the requirements for loan closing have been completed pursuant to sec.371.71 of this title (relating to Loan Closing) and an exchange of debt for funds to either the applicant, an escrow agent bank, or a trust agent has occurred. Commission - The Texas Natural Resource Conservation Commission. Commitment - An action of the board evidenced by a resolution approving a request for financial assistance from the fund. Construction - Any one or more of the following activities: (A) preliminary planning to determine the feasibility of a water project; (B) engineering, architectural, environmental, legal, title, fiscal, and economic or other pertinent studies; (C) surveys, designs, plans, working drawings, specifications, procedures; (D) building or the inspection or supervision thereof; and (E) activities authorized under sec.371.14 of this title (relating to Other Authorized Activities). Construction fund - A dedicated source of funds, created and maintained by the applicant at an official depository, or a designated depository approved by the executive administrator, used solely for the purposes of construction of a project as approved by the board. Contaminant - any physical, chemical, biological, or radiological substance or matter in water. Contract documents- The engineering description of the project including engineering drawings, maps, technical specifications, design reports, instructions and other contract conditions and forms that are in sufficient detail to allow contractors to bid on the work. Cost-effectiveness determination - A determination based on engineering, environmental, and financial analyses that a proposed project or component part will result in the minimum total monetary (resources) costs over time, but without overriding adverse social, economic and environmental considerations. Debt - All bonds issued or to be issued by any political subdivision. Delivery - The time at which payment is made by the board to the loan recipient against the purchase price of the loan recipient's debt and at which the board takes possession of the instruments evidencing the loan recipient's debt. Delivery may occur simultaneously with a release of funds, or without release of funds pursuant to an escrow agreement. DWSRF- Drinking Water State Revolving Fund, a program of financial assistance administered by the board for water projects pursuant to the Act and Texas Water Code, Chapter 15. Eligible applicant - A political subdivision as defined pursuant to Texas Water Code, Chapter 15. Environmental determination - A finding by the executive administrator regarding the potential environmental impacts of a proposed project and describing what mitigative measures, if any, the applicant will be required to implement as a condition of financial assistance. Environmental information document - A written analysis prepared by the applicant describing the potential environmental impacts of a proposed project, sufficient in scope to enable the executive administrator to prepare an environmental assessment to allow an environmental determination to be made by the executive administrator. Environmental review - The process whereby an evaluation is undertaken by the board, consistent with the National Environmental Policy Act and other federal, state, and local laws and requirements, to determine whether a proposed project may have significant impacts on the environment and therefore require the preparation of an environmental impact statement, as detailed in sec.371.5 of this title (relating to Required Environmental Review and Determinations). EPA - The Environmental Protection Agency. Escrow- The transfer of funds to a custodian of the funds which will act as the escrow agent or trust agent. Escrow agent - The third party appointed to hold the funds which are not eligible for release to the loan recipient. Escrow agent bank - The financial institution which has been appointed to hold the funds which are not eligible for release to the loan recipient. Executive administrator - The executive administrator of the board or a designated representative. Financial assistance - Loans by the board from the DWSRF to eligible applicants. Fund - The DWSRF created pursuant to the Texas Water Code, Subchapter J, Chapter 15. Funding year - The particular federal fiscal year (October 1 - September 30) for which funds are made available to the DWSRF. Intended use plan - A plan identifying the intended uses of the amount of funds available through the DWSRF for financial assistance and administrative costs for each fiscal year as described in the Act, sec.1452. Lending rate- Interest rate assessed to loan applicants for loans through the DWSRF. Market interest rates - Interest rates comparable to those attained for municipal securities in an open market offering. Municipality - a city, town, or other public body created by or pursuant to State law, or an Indian Tribe. Population- That number of people who reside within the territorial boundaries of or receive wholesale or retail water service from the applicant based upon data that is acceptable to the executive administrator and which includes the following: (A) information in the DWSRF engineering feasibility report or latest official census for an incorporated city; or (B) information on the population for which the project is designed, where the applicant is not an incorporated city or town. Primary drinking water regulation - a regulation promulgated by EPA which: (A) applies to public water systems; (B) specifies contaminants which, in the judgment of the Administrator, may have any adverse effect on the health of persons; (C) specifies for each such contaminant either: (i) a maximum contaminant level, if, in the judgment of the Administrator, it is economically and technologically feasible to ascertain the level of such contaminant in water in public water systems, or (ii) if, in the judgment of the Administrator, it is not economically or technologically feasible to so ascertain the level of such contaminant, each treatment technique known to the Administrator which leads to a reduction in the level of such contaminant sufficient to satisfy the requirements of the Act, sec.300f; and (D) contains criteria and procedures to assure a supply of drinking water which dependably complies with such maximum contaminant levels; including quality control and testing procedures to insure compliance with such levels and to insure proper operation and maintenance of the system, and requirements as to: (i) the minimum quality of water which may be taken into the system; and (ii) siting for new facilities for public water systems. Priority list - A list of projects, ranked according to priority order, for which DWSRF assistance may be requested. Project - The scope of work describing a construction endeavor for which financial assistance is sought. Project engineer - The engineer or engineering firm retained by the applicant to provide professional engineering services during the planning, design, and/or construction of a project. Public water system - (A) In General. The system for the provision to the public of water for human consumption through pipes or other constructed conveyances, if such system has at least fifteen service connections or regularly serves at least twenty-five individuals. Such term includes: (i) any collection, treatment, storage, and distribution facilities under control of the operator of such system and used primarily in connection with such system; and (ii) any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system. (B) Connections. A connection to a system that delivers water by a constructed conveyance other than a pipe shall not be considered a connection, if: (i) the water is used exclusively for purposes other than residential uses (consisting of drinking, bathing, and cooking, or other similar uses); (ii) the Administrator or the Commission determines that alternative water to achieve the equivalent level of public health protection provided by the applicable national primary drinking water regulation is provided for residential or similar uses for drinking and cooking; or (iii) the Administrator or the Commission determines that the water provided for residential or similar uses for drinking, cooking, and bathing is centrally treated or treated at the point of entry by the provider, a pass-through entity, or the user to achieve the equivalent level of protection provided by the applicable national primary drinking water regulations. (C) Irrigation Districts. An irrigation district in existence prior to May 18, 1994, that provides primarily agricultural service through a piped water system with only incidental residential or similar use shall not be considered to be a public water system if the system or the residential or similar users of the system comply with subparagraphs (B)(ii) and (B)(iii) of this paragraph. (D) Transition Period. A water supplier that would be a public water system only as a result of modifications made shall not be considered a public water system until two years after August 6, 1996. If a water supplier does not serve 15 service connections or 25 people at any time after the conclusion of the 2-year period, the water supplier shall not be considered a public water system. Release - The time at which funds are made available to the loan recipient. Secondary drinking water regulation - A regulation promulgated by EPA which applies to public water systems and which specifies the maximum contaminant levels which, in the judgment of the Administrator, are requisite to protect the public welfare. Such regulations may vary according to geographic and other circumstances and may apply to any contaminant in drinking water: (A) which may adversely affect the odor or appearance of such water and consequently may cause a substantial number of the persons served by the public water system providing such water to discontinue its use; or (B) which may otherwise adversely affect the public welfare. State - State of Texas. State allotment - The sum allocated to the State of Texas for a federal fiscal year, from funds appropriated by congress pursuant to the Act. Trust agent - The party appointed by the applicant and approved by the executive administrator to hold the funds which are not eligible for release to the loan recipient. Water conservation plan - A report outlining the methods and means by which water conservation may be achieved in an area, as further defined in sec.371.37 of this title (relating to Required Water Conservation Plan). Water conservation program - A comprehensive description and schedule of the methods and means to implement and enforce a water conservation plan. 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 25, 1997. TRD-9702673 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: March 18, 1997 Proposal publication date: January 14, 1997 For further information, please call: (512) 463-7981 Program Requirements 31 TAC sec.sec.371.11-371.21 The new sections are adopted under the authority of the Texas Water Code, 6.101 and 15.605 which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State and specifically the SRF Program. sec.371.12. Uses of the Fund. The fund may be used for the following purposes: (1) to make loans on the condition that: (A) the interest rate for each loan is less than or equal to the market interest rate; (B) principal and interest payments on each loan will commence not later than one year after completion of the project for which the loanwas made, and each loan will be fully amortized not later than 20 years after the completion of the project; (C) the recipient of each loan will establish a dedicated source of revenue for the repayment of the loan; and (D) the fund will be credited with all payments of principal and interest on each loan; and (2) to buy or refinance the debt obligation of a municipality or an intermunicipal or interstate agency within the State at an interest rate that is less than or equal to the market interest rate in any case in which a debt obligation is incurred after July 1, 1993; (3) to guarantee or purchase insurance for a bond (all of the proceeds of which finance a project eligible for assistance under this section) if the guarantee or purchase would improve credit market access or reduce the interest rate applicable to the bond; (4) as a source of revenue or security for the payment of principal and interest on revenue or general obligation bonds issued by the board if the proceeds of the sale of the bonds will be deposited into the fund; (5) to earn interest on the amounts deposited into the fund; and (6) to cover the reasonable costs of administration of the programs under the chapter up to 4% of the funds allotted to the State. sec.371.13. Projects Eligible for Assistance. (a) Projects are eligible for assistance if they will facilitate compliance with the primary or secondary drinking water regulations applicable to the public water system or otherwise significantly further the health protection objectives of the Act. Such projects include: (1) capital investments to upgrade or replace infrastructure in order to continue providing the public with safe drinking water, including projects to replace aging infrastructure; (2) projects to correct exceedances of the health standards established by the Act; (3) projects to consolidate water supplies where the supplies have an inadequate quantity of water, the water supply is contaminated or the system is unable to maintain compliance with the national primary drinking water regulations for financial or managerial reasons and the consolidation will achieve compliance; (4) purchase of capacity in another system if the purchase is part of a consolidation plan and is cost-effective considering buy-in fees and user fees; (5) projects to restructure a system if the system is not in compliance with the primary drinking regulations or the applicant lacks the technical, managerial and financial capability to maintain the system, if the restructuring will return and maintain the system in compliance with the Act, sec.1452 (a)(3)(B). (b) Projects proposed for public water systems for which applicants do not have the technical, managerial, and financial capacity to maintain the system are not eligible for assistance unless the requirements of subsection (a) (5) of this section are met. (c) Projects are not eligible to receive DWSRF funds if the primary purpose of the project is to supply or attract growth. If the primary purpose is to solve a compliance or pubic health problem, the entire project, including the portion necessary to accommodate a reasonable amount of growth over its useful life, is eligible. sec.371.18. Capitalization Grant Requirements for Applicants. All projects which receive assistance from the fund under this chapter shall satisfy the following federal requirements as they apply: (1) National Environmental Policy Act of 1969, PL 91-190; (2) Archeological and Historic Preservation Act of 1974, PL 93-291; (3) Clean Air Act, 42 U.S.C. 7506(c); (4) Coastal Barrier Resources Act, 16 U.S.C. 3501 et seq.; (5) Coastal Zone Management Act of 1972, PL 92-583, as amended; (6) Endangered Species Act, 16 U.S.C. 1531, et seq.; (7) Executive Order 11593, Protection and Enhancement of the Cultural Environment; (8) Executive Order 11988, Floodplain Management; (9) Executive Order 11990, Protection of Wetlands; (10) Farmland Protection Policy Act, 7 U.S.C. 4201 et seq; (11) Fish and Wildlife Coordination Act, PL 85-624, as amended; (12) National Historic Preservation Act of 1966, PL 89-665, as amended; (13) Safe Drinking Water Act, sec.1424(e), PL 92-523, as amended; (14) Wild and Scenic Rivers Act, PL 90-542, as amended; (15) Demonstration Cities and Metropolitan Development Act of 1966, PL 89-754, as amended; (16) Section 306 of the Clean Air Act and sec.508 of the Clean Water Act, including Executive Order 11738, Administration of the Clean Air Act and the Federal Water Pollution Control Act with Respect to Federal Contracts, Grants, or Loans; (17) Age Discrimination Act, PL 94-135; (18) Civil Rights Act of 1964, PL 88-352; (19) Section 13 of PL 92-500; Prohibition against sex discrimination under the Federal Water Pollution Control Act; (20) Executive Order 11246, Equal Employment Opportunity; (21) Executive Orders 11625 and 12138, Women's and Minority Business Enterprise; (22) Rehabilitation Act of 1973, PL 93-112 (including Executive Orders 11914 and 11250); (23) Uniform Relocation and Real Property Acquisition Policies Act of 1970, PL 91-646; (24) Executive Order 12549, Debarment and Suspension; and (25) The Wilderness Act, 16 U.S.C. 1131 et seq. sec.371.20. Intended Use Plan. (a) Each fiscal year the board shall prepare an intended use plan to meet the requirements of the Act and to assist the board in its financial planning. The intended use plan will identify projects anticipated to receive assistance from that year's available funds. The list of projects by priority ranking included in the intended use plan may also serve as the comprehensive project priority list required by the Act. (b) The process for listing projects in the intended use plan, will be as follows. (1) On or before 1 April each year the executive administrator will solicit project information from eligible applicants desiring to have their projects placed on the subsequent year's intended use plan. The required information will consist of: (A) a description of the proposed project; (B) county map showing location of service area; (C) estimated total project cost, certified by a registered professional engineer; (D) estimated project schedule; and (E) population currently served by the applicant. (2) To be included in the draft intended use plan, the applicant must submit the required information signed by a representative of the applicant not later than June 1 of each year. (3) After a public hearing, the intended use plan and project priority list will be presented to the board for consideration at a regularly scheduled meeting. (4) Public notice shall be given 30 days prior to the hearing and the comment period shall remain open 30 days following the hearing. (c) Applications for funding from a particular fiscal year may be considered for funding at any time between the date of establishment of the funding line for that year's intended use plan as described in sec.371.21 of this title (relating to Criteria and Methods for Distribution of Funds) and the date of establishment of the funding line for the subsequent year's intended use plan. (d) Any funds from a particular intended use plan which have not been committed by board action when the funding line for a subsequent intended use plan is established will be included in the funds available to be committed from the subsequent intended use plan. 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 25, 1997. TRD-9702674 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: March 18, 1997 Proposal publication date: January 14, 1997 For further information, please call: (512) 463-7981 Application for Assistance 31 TAC sec.sec.371.31-371.39 The new sections are adopted under the authority of the Texas Water Code, 6.101 and 15.605 which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State and specifically the SRF Program. sec.371.35. Required Environmental Review and Determinations. (a) General. The applicant's preparation of the environmental information and the executive administrator's review and issuance of a determination forms an integral part of the planning process required of any potential applicant to the fund. There are three levels of environmental information required, varying according to the nature and scope of the project and the environment in which it is proposed. Correspondingly, the appropriate level of review will be conducted by the board and formal determinations documenting the review are issued. The categorical exclusion (CE) is directed toward those applicants proposing only minor rehabilitation or functional replacement of existing equipment. Although the environmental information required is small, the proposed project must fit a narrow range of criteria defined in paragraph (1)(A) of this subsection. The CE must be revoked and an environmental information document (EID) must be prepared if the project is subsequently modified so as to exceed the limits of the criteria. The majority of applicants will prepare an EID, developed in accordance with guidance available from the board. In addition to a greater amount of information to be supplied by the applicant, a public hearing must be held on the proposed project and the determination, a finding of no significant impact (FNSI), is also subject to public comment for a period not less than 30 days following its issuance. All applicants whose proposed projects do not meet the criteria for either a CE or environmental impact statement (EIS) must prepare an EID. Although there are other criteria involved, as described in paragraph (1)(C) of this subsection and subsection (d)(3) of this section, an EIS is usually required of those projects that are so major in scope or involve such environmentally sensitive areas (i.e., floodplains, endangered species habitat, etc.) that the proposed project may have significant adverse social or environmental impacts. An EIS requires close coordination and involvement of the board and other agencies in its preparation and results in a record of decision (ROD). The board's staff shall endeavor to provide guidance as to the appropriate level of environmental information to applicants during the pre- planning process. All applicants are urged, however, to review the criteria and contact the board's staff, particularly if there is doubt as to the level of environmental information that is appropriate to the proposed project. Based on the environmental information, the executive administrator will conduct an independent and interdisciplinary environmental review consistent with the National Environmental Policy Act (NEPA) of all projects funded through the DWSRF. This review will further insure that the proposed project will comply with the applicable local, state, and federal laws and board rules relating to the protection and enhancement of the environment. Based upon the staff's review, the executive administrator will make formal determinations regarding the potential social and environmental impacts of the proposed project. As necessary, the determinations will include mitigative provisions recommended to be applied as a condition of receiving financial assistance. Funds will not be released for building until a final environmental determination has been made. Proposed projects using the pre-design funding option will follow the environmental review procedures described under paragraph (2)(C) of this subsection. (1) Basic environmental determinations. There are three basic environmental determinations that will apply to projects proposed to be implemented with assistance from the fund. These are: a determination to categorically exclude a proposed project from a formal environmental review, a FNSI based upon a formal environmental review supported by an EID, and a determination to provide or not provide financial assistance based upon a ROD following the preparation of an EIS. The appropriate determination will be based on the following criteria. (A) The CE determination applies to categories of projects that have been shown over time not to entail significant impacts on the quality of the human environment. (i) Proposed projects which meet the following criteria may be categorically excluded from formal environmental review requirements. (I) The proposed project is directed solely toward minor rehabilitation of existing facilities, functional replacement of equipment, or toward the construction of related facilities adjoining the existing facilities that do not affect the degree of treatment or the capacity of the works. Examples include replacement of existing distribution lines within the same rights-of-way or easements, rehabilitation of existing equipment and structures, and the construction of structures on existing sites. (II) The proposed project is in a community of less than 10,000 population and is for minor expansions or upgrading of existing systems. (ii) CE's will not be granted for proposed projects that entail: (I) the construction of new distribution lines; (II) providing capacity for a population 30% or greater than the existing population; (III) known or expected impacts to cultural resources, threatened or endangered species, or other environmentally sensitive areas; or (IV) the construction of facilities which will not be, or apparently will not be, cost-effective or are likely to cause significant public controversy. (B) The FNSI will be based upon an environmental review by the staff supported by an EID prepared by the applicant in conformance with guidance developed by the executive administrator. Based upon its review, the staff will prepare an environmental assessment (EA) resulting in the issuance of either a FNSI or a public notice that the preparation of an EIS will be required. All applicants whose projects do not meet the criteria for either a CE or EIS will be required to prepare an EID. The executive administrator's issuance of a FNSI will be based upon an EA documenting that the potential environmental impacts will not be significant or that they may be mitigated without extraordinary measures. (C) The ROD may only be based upon an EIS prepared in conformance with the format and guidelines described in subsection (b)(3) of this section. An EIS will be required when the executive administrator determines any of the following: (i) the proposed project will significantly affect the pattern and type of land use or growth and distribution of the population; (ii) the effects of a proposed project's construction or operation will conflict with local or state laws or policies; (iii) the proposed project may have significant adverse impacts upon: (I) wetlands; (II) floodplains; (III) threatened and endangered species or their habitats; (IV) cultural resources including parklands, preserves, other public lands, or areas of recognized scenic, recreational, agricultural, archeological, or historic value; (iv) the proposed project will displace population or significantly alter the characteristics of existing residential areas; (v) the proposed project may directly or indirectly (e.g., through induced development) have significant adverse effect upon local ambient air quality, local noise levels, surface and ground water quantity or quality, fish, shellfish, wildlife or their natural habitats; (vi) the proposed project may generate significant public controversy; or (vii) the water supply is proposed to be obtained from a surface or groundwater source where the characterization of quality and/or quantity is being challenged or for which the proposed withdrawal might adversely affect the quality or quantity. (2) Other determinations that are required of the board. (A) Recognizing that a project may be altered at some time after an environmental determination on the proposed project has been issued, the executive administrator will provide that, prior to approval of the alterations, the contract documents, loan application, or related documents will be examined for consistency with the environmental determination. If minor inconsistencies are found and the amended project will not entail adverse environmental impacts different from those previously identified, the project may be allowed to proceed without additional formal environmental review. When substantive inconsistencies are found or new adverse environmental impacts may result, the executive administrator will revoke a CE and require the preparation of an EID or an EIS, consistent with the criteria of paragraph (1) of this subsection, or require the preparation of amendments to an EID or supplements to an EIS, as appropriate. Based upon the staff's review of the amended project, the executive administrator will: (i) reaffirm the original environmental determination through the issuance of a public notice or statement of finding; (ii) issue a FNSI when a CE has been revoked, or issue a public notice that the preparation of an EIS will be required; (iii) issue an amendment to a FNSI, or revoke a FNSI and issue a public notice that the preparation of an EIS will be required; or (iv) issue a supplement to a ROD, or revoke the ROD and issue a public notice that financial assistance will not be provided. (B) When five or more years have elapsed between the last environmental determination and the submittal of an application to the fund, the executive administrator will re-evaluate the proposed project, environmental conditions and public views, and prior to presentation of the application to the board, proceed in accordance with subparagraph (A) of this paragraph. (C) For projects using the pre-design funding option, board staff will use preliminary environmental data provided by the applicant, as specified in sec.371.38 of this title (relating to Pre-Design Funding Option), and make a written report to the executive administrator on known or potential significant social or environmental concerns before an application for pre-design funding is taken to the board. Prior to release of funds for design, these projects must have approval by the board after the appropriate level of environmental review has been conducted during planning, as provided under this section. (3) Other determinations that are available to the board. (A) The executive administrator may adopt previous environmental determinations issued by the EPA and other federal agencies whose determinations may be considered to be current and applicable under the environmental review requirements of this section. In so doing, the executive administrator will insure that all mitigative measures specified in the previous determinations are applied as conditions of the loan agreement and that such adoption will be consistent with the requirements of these rules. The executive administrator will adopt the previous determination by means of a statement of findings, when the proposed project and its previous determination are to be adopted without substantial modifications, or in a FNSI which will explain modifications to the proposed project, potential environmental impacts identified during an environmental review, and any mitigative measures proposed in addition to those included in the federal environmental determination to be adopted. (B) In order to better inform the public, the executive administrator may issue a statement of findings to interested agencies and public groups describing the outcome of a mitigative condition required by an environmental determination. (b) Required environmental information. A minimum of three copies of all information required in this subsection shall be submitted to the executive administrator. (1) Applicants seeking a CE for their proposed projects will provide the executive administrator with sufficient documentation to demonstrate compliance with the criteria of subsection (a)(1)(A) of this section. At a minimum, this will consist of: (A) a brief, complete description of the proposed project and its costs; (B) a statement indicating that the project is cost-effective and that the applicant is financially capable of constructing, operating and maintaining the facilities; and (C) a plan map or maps of the proposed project showing: (i) the location of all construction areas, (ii) the planning area boundaries, and (iii) any known environmentally sensitive areas. (2) An EID must be submitted by those applicants whose proposed projects do not meet the criteria for a CE and for which the executive administrator has made a preliminary determination that an EIS will not be required. The executive administrator will provide guidance on both the format and contents of the EID to potential applicants prior to initiation of planning. (A) At a minimum, the contents of an EID will include: (i) the purpose and need for the project; (ii) the environmental setting of the proposed project and the future of the environment without the project; (iii) the alternatives to the project as proposed and their potential environmental impacts; (iv) a description of the proposed project; (v) the potential environmental impacts of the project as proposed including those which cannot be avoided; (vi) the relationship between the short term uses of man's environment and the maintenance and enhancement of long term productivity; (vii) any irreversible and irretrievable commitments of resources to the proposed project; (viii) a description of public participation activities conducted, issues raised, and changes to the project which may be made as a result of the public participation process; and (ix) documentation of required public participation activities and coordination with appropriate governmental agencies. (B) Prior to the applicant's adoption of the DWSRF engineering feasibility report, the applicant will hold a public hearing on the proposed project and the EID, and provide the executive administrator with a verbatim transcript of the hearing. The executive administrator will provide guidance to the applicant regarding the contents of the hearing notice and of the hearing. The hearing will be advertised at least 30 days in advance in a local newspaper of general circulation within the area to be impacted by the proposed project. Notice of the public hearing and availability of the documents also will be sent at least 30 days in advance of the public hearing to all local, state, and federal agencies and public and private parties that may have an interest in the proposed project. Included with the transcript will be a list of all attendees, any written testimony, and the applicant's Responsiveness Summary to the issues raised. (C) The applicant will provide copies of the EID to all federal, state, and local agencies and others with an interest in the proposed project. The executive administrator will provide guidance to the applicant regarding coordination requirements. (3) The format of an EIS will encourage sound analysis and clear presentation of alternatives, including the no action alternative and the preferred alternative, and their environmental, economic, and social impacts. The following format must be followed by the applicant unless the executive administrator determines there are compelling reasons to do otherwise: (A) a cover sheet identifying the applicant, the proposed project(s), the program through which financial assistance is requested, and the date of publication; (B) an executive summary consisting of a 10 to 15 page precis of the critical issues of the EIS in sufficient detail that the reader may become familiar with the proposed project and its cumulative effects. The summary will include: (i) a description of the existing problem; (ii) a description of each alternative; (iii) a listing of each alternative's potential environmental impacts, mitigative measures and any areas of controversy; and (iv) any major conclusions; (C) the body of the EIS, which will contain the following information: (i) a complete and clear description of the purpose and need for the proposed project and objectives; (ii) a balanced description of each alternative considered by the applicant. The descriptions will include the size and location of the facilities and pipelines, land requirements, operation and maintenance requirements, and construction schedules. The alternative of no action will be discussed and the applicant's preferred alternative(s) will be identified. Alternatives that were eliminated from detailed examination will be presented with the reasons for their elimination; (iii) a description of the alternatives available to the board including: (I) providing financial assistance to the proposed project; (II) requiring that the proposed project be modified prior to providing financial assistance to reduce adverse environmental impacts, or providing assistance with conditions requiring the implementation of mitigative measures; and (III) providing no financial assistance; (iv) a description of the alternatives available to other local, state, and federal agencies which may have the ability to issue or deny a permit, provide financial assistance, or otherwise effect or have an interest in any of the alternatives; (v) a description of the affected environment and environmental consequences of each alternative. The affected environment on which the evaluation of each alternative will be based includes, as a partial listing, hydrology, geology, air quality, noise, biology, socioeconomics, land use, and cultural resources of the planning area. The executive administrator will provide guidance, as necessary, to the applicant regarding the evaluation of the affected environment. The discussion will present the total impacts of each alternative in a manner that will facilitate comparison. The effects of the no action alternative must be included to serve as a baseline for comparison of the adverse and beneficial impacts of the other alternatives. A description of the existing environment will be included in the no action section to provide background information. The detail in which the affected environment is described will be commensurate with the complexity of the situation and the significance of the anticipated impacts. (4) The draft EIS will be provided to all local, state and federal agencies and public groups with an interest in the proposed project and be made available to the public for review. The final EIS will include all objections and suggestions made before and during the draft EIS review process, along with the issues of public concern expressed by individuals or interested groups. The final EIS must include discussions of any such comments pertinent to the project or the EIS. All commentors will be identified. If a comment has led to a change in either the project or the EIS, the reason should be given. The board's staff will always endeavor to resolve any conflicts that may have arisen, particularly among permitting agencies, prior to the issuance of the final EIS. In all cases, the comment period will be no less than 45 days. (5) Material incorporated into an EIS by reference will be organized to the extent possible into a supplemental information document and be made available for public review upon request. No material may be incorporated by reference unless it is reasonably available for inspection by interested persons within the comment periods specified in subsection (b)(4) of this section. (6) Preparation of the EIS will be done, at the discretion of the executive administrator: directly by its own staff; by consultants to the board; or by a consultant, contracted by the applicant subject to approval by the executive administrator. In the latter two cases, the consultants will be required to execute a disclosure statement prepared by the executive administrator signifying they have no financial or other conflicting interest in the outcome of the project. When an EIS is prepared by contractors, either in the service of the applicant or the board, the executive administrator will independently evaluate the EIS prior to issuance of the ROD and take responsibility for its scope and contents. The board staff who undertake this evaluation will be identified under the list of preparers along with those of the contractor and any other parties responsible for the content of the EIS. (7) The following public participation requirements are the minimum allowable to the applicant and the board. (A) Upon making the determination that an EIS will be required of a proposed project, the executive administrator will publish in the Texas Register and distribute a notice of intent to prepare an EIS. (B) As soon as possible after the notice of intent has been issued, the executive administrator will convene a meeting of the affected federal, state, and local agencies, the applicant, and other interested parties to determine the scope of the EIS. A notice of this scoping meeting may be incorporated into the notice of intent or prepared and issued separately. In no case will the notification period be less than 45 days. As part of the scoping meeting the board will, at a minimum: (i) determine the significance of issues and the scope of those significant issues to be analyzed in depth in the EIS; (ii) identify the preliminary range of alternatives to be considered; (iii) identify potential cooperating agencies and determine the information or analyses that may be needed from cooperating agencies or other parties; (iv) discuss the method for EIS preparation and the public participation strategy; (v) identify consultation requirements of other laws and regulations; (vi) determine the relationship between the preparation of the EIS and the completion of the DWSRF engineering feasibility report and any necessary arrangements for coordination of the preparation of both documents. (C) Following the scoping process, the executive administrator will begin the identification and evaluation of all potentially viable alternatives to adequately address the range of issues developed in the scoping. A summary of this, including a list of the significant issues identified, will be provided to the applicant and other interested parties. (D) The draft EIS will be the subject of a formal public hearing and any other public participation activities determined to be appropriate during the scoping process. Both the draft EIS and final EIS will be distributed and made available for public review in a fashion consistent with the requirements of paragraph (2)(B) of this subsection except that the advertisement period for the public hearing and comment periods for the draft EIS and final EIS will be no less than 45 days. The executive administrator will publish, in the Texas Register and a newspaper(s) of general circulation in the project area, a notice of availability of the EIS giving locations at which it will be available for public review at least 45 days prior to making any environmental determination. (c) Environmental Review. (1) When the executive administrator has determined that an applicant's proposed project may be excluded from a formal environmental review or has determined that a CE is to be rescinded, the executive administrator will prepare a public notice of the determination and the availability of supporting documentation for public inspection. The notice will be published in a local newspaper of community-wide circulation by the applicant. The executive administrator, concurrent with the publication, will distribute the notice to all interested parties. (2) An environmental review of the proposed project, supported by the applicant's EID, will be conducted by the executive administrator to determine whether any significant impacts are anticipated and whether any changes may be made in the proposed project to eliminate significant adverse impacts. As part of this review, the executive administrator may require the applicant to submit additional information or undertake additional public participation and coordination to support the environmental determination. Based on the environmental review, the executive administrator will prepare an EA, describing: (A) the purpose and need for the proposed project; (B) the proposed project, including its costs; (C) the alternatives considered and the reasons for their rejection or acceptance; (D) the existing environment; (E) any potential adverse impacts and mitigative measures; (F) any proposed conditions to the provision of financial assistance and any means provided for the monitoring of compliance with the conditions; and (G) a summary of the public comments and response to those comments made by the applicant. (3) Based upon this EA, the executive administrator will issue a FNSI or issue a notice of intent to prepare an EIS. The FNSI will include a brief description of the proposed project, its costs, any mitigative measures proposed for the applicant as a condition of its receipt of financial assistance, and a statement to the effect that comments supporting or disagreeing with the FNSI may be submitted for consideration by the board. The EA will be attached to the FNSI when mitigative measures are specified by conditions of the financial assistance. The FNSI will be distributed to all parties, governmental entities, and agencies that may have an interest in the proposed project. No action regarding approval of the DWSRF engineering feasibility report will be taken by the executive administrator for at least 30 days after the issuance of the FNSI. Additionally, except for projects utilizing the pre-design option under sec.371.38 of this title (relating to Pre-Design Funding Option), no funds for building will be released for at least 30 days after the issuance of the FNSI. For projects utilizing the pre-design option, approval of the release of funds for planning will be made prior to the issuance of the FNSI, but no approval for release of funds for design or building will be made until at least 30 days after the issuance of the FNSI. (4) Except for projects utilizing pre-design funding under sec.371.38 of this title (relating to Pre-Design Funding Option), the executive administrator will prepare a concise public ROD following the public hearing on the draft EIS and the comment period on the final EIS and before the decision to approve the DWSRF engineering feasibility report or to provide or deny financial assistance to the proposed project. The ROD will describe those mitigative measures to be taken which will make the selected alternative environmentally acceptable. For projects utilizing the pre-design funding option under sec.371.38 of this title (relating to Pre-Design Funding Option), the ROD shall be made prior to the board's approval of the release of funds for design. (d) Application of other laws and authorities. In addition to the requirements of state law and rules, the Act, and the NEPA, the board must, as required by the initial guidance for the state water pollution control revolving fund and the drinking water capitalization grant agreement, insure that each project proposed to receive DWSRF financial assistance complies with the following federal laws and authorities respecting the human environment: the Archeological and Historic Preservation Act of 1974, Public Law 93-191; the Historic Sites Act; the Clean Air Act, 42 United States Code 7506(c); the Coastal Barrier Resources Act, 16 United States Code 3501 et seq., the Coastal Zone Management Act of 1972, Public Law 92-583, as amended; the Endangered Species Act, 16 United States Code 1531 et seq.; Executive Order 11953, Protection and Enhancement of the Cultural Environment; Executive Order 11988, Floodplain Management; the Flood Disaster Protection Act of 1973, Public Law 93-234; Executive Order 11990, Protection of Wetlands; the Farmland Protection Policy Act, 7 United States Code 4201 et seq.; the Fish and Wildlife Coordination Act, Public Law 85-624, as amended; the National Historic Preservation Act of 1966, Public Law 89-665, as amended; the Safe Drinking Water Act, sec.1424(e), Public Law 92-523, as amended; the Wild and Scenic Rivers Act, Public Law 90-542, as amended; and the Wilderness Act, 16 U.S.C. 1131 et seq. Because particular federal and/or state agencies are charged with the enforcement of or permitting under many of these laws and authorities, the executive administrator will provide guidance to applicants to the fund regarding consultation requirements and will encourage proper coordination of project planning with the appropriate agencies. Because of their complexity and critical importance to the board's administration of the fund, the board has adopted the following sections to effect proper compliance with the requirements of the Flood Disaster Protection Act of 1973, the Coastal Barrier Resources Act, and Executive Order 11988. (1) The board will not provide financial assistance from the DWSRF for any project element that is proposed to be constructed in a floodplain when the applicant's community is sanctioned by the Federal Emergency Management Agency (FEMA) in its administration of the National Flood Insurance Program, pursuant to the requirements of the Flood Disaster Protection Act of 1973, Public Law 93- 234. (2) The board will not provide financial assistance from the fund to any entity proposing construction in or extension or expansion of water service into any area within the Coastal Barrier Resources System other than those permitted by the Coastal Barrier Resources Act, 16 United States Code 3501 et seq. (3) Pursuant to the requirements of Executive Order 11988, the board will avoid direct and indirect support of development in floodplains wherever there is a practicable alternative. Therefore, both to preserve the significant natural functions and values of floodplains and to protect human health and safety. (A) The board may provide financial assistance from the fund for the transportation or treatment of drinking water in a floodplain only when the proposed project will provide service to: (i) areas of existing development in a floodplain; (ii) facilities such as marinas which, by their nature, must be located in floodplains; (iii) areas of projected growth if an EID demonstrates that the proposed development will be consistent with FEMA's floodplain management criteria for flood prone areas (40 Code of Federal Regulations 60.3) and will have no significant impacts on natural functions and values of floodplains; (iv) areas of projected growth if an EIS demonstrates that there is no practicable alternative to such growth, that such growth will be consistent with the floodplain management criteria cited in clause (iii) of this subparagraph and that the benefits of such growth outweigh its costs to the natural functions and values of the effected floodplains or risks to human health and safety. (B) When regional systems are proposed, the board will require the regional authority and the member entities to demonstrate compliance with these rules. (C) For the purposes of this subsection, the following definitions will apply: (i) Areas of existing development - All or part of the project planning area which, at the time of the board's issuance of its environmental determination, is: (I) occupied by existing structures or facilities; (II) substantially surrounded by existing structures and facilities and which serves no significant independent natural floodplain function; or (III) characterized by substantial investment in public infrastructure (e.g., roads and utilities are available to individual users) but which is only partially occupied by structures or facilities. (ii) Floodplain or 100-year floodplain - Those lowland, relatively flat areas usually adjoining inland or coastal waters that have a 1% or greater chance of flooding in any given year. In determining these areas, the applicant will use flood insurance rate maps or flood hazard boundary maps approved by FEMA. Where these maps are unavailable, the applicant should produce its own map(s) delineating the 100-year floodplain and showing 100-year flood elevations. Such maps should be prepared in accordance with FEMA's Guidelines and Specifications for Study Contractors. (iii) Natural functions and values of the floodplain include: (I) maintenance of water quality; (II) transport, storage, and absorption of floodwaters; (III) groundwater recharge; (IV) flow of debris; (V) wildlife habitat; (VI) cultural and historical resource repository; (VII) agricultural resources; and (VIII) aesthetic resources. (D) The board will, as appropriate and consistent with the requirements of these rules and Executive Order 11988, require assurances or include conditions to the provision of DWSRF financial assistance to insure compliance with these rules. 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 25, 1997. TRD-9702675 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: March 18, 1997 Proposal publication date: January 14, 1997 For further information, please call: (512) 463-7981 Board Action on Application 31 TAC sec.371.51, sec.371.52 The new sections are adopted under the authority of the Texas Water Code, 6.101 and 15.605 which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State and specifically the SRF 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 February 25, 1997. TRD-9702676 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: March 18, 1997 Proposal publication date: January 14, 1997 For further information, please call: (512) 463-7981 Engineering Design 31 TAC sec.371.61, sec.371.62 The new sections are adopted under the authority of the Texas Water Code, 6.101 and 15.605 which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State and specifically the SRF 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 February 25, 1997. TRD-9702677 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: March 18, 1997 Proposal publication date: January 14, 1997 For further information, please call: (512) 463-7981 Prerequisites to Release of Funds 31 TAC sec.371.71, sec.371.72 The new sections are adopted under the authority of the Texas Water Code, 6.101 and 15.605 which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State and specifically the SRF 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 February 25, 1997. TRD-9702678 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: March 18, 1997 Proposal publication date: January 14, 1997 For further information, please call: (512) 463-7981 Building Phase 31 TAC sec.sec.371.81-371.89 The new sections are adopted under the authority of the Texas Water Code, 6.101 and 15.605 which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State and specifically the SRF 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 February 25, 1997. TRD-9702679 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: March 18, 1997 Proposal publication date: January 14, 1997 For further information, please call: (512) 463-7981 Post Building Phase 31 TAC sec.371.101, sec.371.102 The new sections are adopted under the authority of the Texas Water Code, 6.101 and 15.605 which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State and specifically the SRF Program. sec.371.102. Final Accounting. Upon completion of the project and after the applicant submits the final funds requisition, a final accounting will be made to the executive administrator. The applicant will retain all DWSRF construction records for three full state fiscal years following the submission of the final funds requisition. 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 25, 1997. TRD-9702680 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: March 18, 1997 Proposal publication date: January 14, 1997 For further information, please call: (512) 463-7981 TITLE 34. PUBLIC FINANCE PART IV. Employees Retirement System CHAPTER 87.Deferred Compensation 34 TAC sec.sec.87.1, 87.3, 87.5, 87.17 The Employees Retirement System of Texas (ERS) adopts amendments to sec.sec.87.1, 87.3, 87.5, and 87.17, concerning the Deferred Compensation Program, without changes to the proposed text as published in the December 13, 1996, issue of the Texas Register (21 TexReg 11938). These rules are being adopted to implement changes in federal laws concerning deferred compensation plans that were recently enacted by the Small Business Job Protection Act of 1996. The changes include the indexing of contribution limits, permitting inservice distributions in certain limited situations, and allowing participants to make a one-time election to change their distributions date. No comments were received regarding adoption of the amendments. These amendments are adopted under Government Code, Title 6, Subtitle A, Chapter 609 sec.609.508, which provides authorization for the board to adopt rules, regulations, plans, and procedures to carry out the purposes of this Act. Statutes affected by these proposed amendments are Government Code, Title 6, Subtitle A, Chapter 609, Subchapter C. 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 28, 1997. TRD-9702854 Sheila W. Beckett Executive Director Employees Retirement System Effective date: March 21, 1997 Proposal publication date: December 13, 1996 For further information, please call: (512) 867-3336 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 94. Nurse Aides 40 TAC sec.sec.94.2-94.13 The Texas Department of Human Services (DHS) adopts amendments to sec.sec.94.2- 94.13. Sections 94.2, 94.3, 94.5-94.8, 94.10, 94.11, and 94.13 are adopted without changes to the proposed text as published in the October 22, 1996, issue of the Texas Register (21 TexReg 10422). The text will not be republished. Sections 94.4, 94.9, and 94.12 are adopted with changes. Justification of the amendments is to promote Nurse Aide Training and Competency Evaluation Programs (NATCEPs) continued training of nurse aides and DHS's certification of nurse aides by making technical language changes, permitting alternative settings for clinical training, identifying the hearings process to dispute loss of NATCEP approval, and clarifying the requirements for the recertification of nurse aides. The amendments will function by providing updated rules to facilitate the training and certification of nurse aides and the processes of approving and withdrawing NATCEPs. The department received comments regarding adoption of the amendments from the Texas Association for Home Care and Texas Health Care Association. A summary of the comments and DHS's responses follow. Comment: Home and community support services agencies and the public do not have a regulatory mechanism through which to report certified nurse aides' alleged acts of abuse, neglect or misappropriation of client property in home care settings to DHS for investigation. DHS should amend the language in sec.94.3(g) and sec.94.11(c) to require home and community support services agencies to report findings of abuse, neglect or misappropriation against certified nurse aides in home care settings to DHS. Response: DHS does not regulate home and community support services agencies. Only the Texas Department of Health (TDH) has the authority to investigate reports of alleged acts by employees of home and community support services agencies. Comment: A laboratory setting approved for the clinical portion of the nurse aide training program under sec.94.4(c)(3)(A) will not allow hands on experience with nursing home residents. Will the clinical skills exam occur in the approved laboratory setting or a nursing facility? Response: A NATCEP using an approved laboratory setting or another approved setting must provide individuals on whom trainees must practice and demonstrate clinical competency in nurse aide skills as stated in sec.94.4(c)(3). A NATCEP may use the approved laboratory setting or another approved setting for the skills exam. Comment: Remove the requirement in sec.94.4(c)(3)(A) that an approved laboratory or other setting for the clinical portion of the NATCEP must have tubs and showers. This requirement limits clinical setting options available to the NATCEP. For example, NATCEPs at junior colleges could not comply with the requirement. Response: DHS views the tubs or showers as necessary equipment on which a trainee performs major clinical skills. DHS will not remove this requirement. Comment: In sec.94.4(c)(3)(A), expand "other health care site" to include "any other site" that meets the equipment qualifications for clinical training but only if a nursing facility, laboratory setting or other health care site is unavailable. Response: DHS agrees to include "any other site" which meets the training equipment requirements and DHS would approve such a site for clinical training only if a nursing facility, laboratory setting, or other setting was unavailable. Comment: Add language to sec.94.4(c)(3)(A) stating that the approval of a laboratory setting or other setting should only be granted if no other setting, such as a nursing home or hospital, is available within a five mile radius of the facility. This requirement will impress upon a NATCEP the importance of trying to secure health care setting for the clinical training. Response: DHS disagrees with the comment. Language in sec.94.4(c)(3)(A) already stresses the importance of trying to secure an other setting, such as a nursing home or hospital, over a laboratory setting. The last sentence of the section states, "A NATCEP must provide documentation with its application that shows the NATCEP attempted to secure a facility with NATCEP approval or other setting, which must be identified by type of setting, name and address, for clinical training prior to securing clinical training in a laboratory setting or any other setting." Comment: Subsection 94.9(c)(1)(B) incorrectly states that a facility may submit for an informal dispute resolution (IDR) on the behalf of a skills examiner losing approval by referring to subsection (b). Delete the reference to subsection (b). Response: DHS agrees and has deleted the reference to subsection (b). Comment: All facilities that lose NATCEP approval should have the opportunity for an IDR as provided in Chapter 42 in the Code of Federal Regulations (CFR) in sec.sec.431.151-431.153 or sec.498. Amend sec.sec.94.9(c)(1)(B) and 94.9(d) to provide this opportunity for all facilities. Response: DHS does not agree with this recommendation. Section 488.331 in 42 CFR identifies the IDR as the process for disputing survey findings, while sec.sec.431.151-431.153 and sec.498 in 42 CFR identify formal hearings as the process for appealing remedies. In the preamble to the final enforcement rules in the Federal Register (11/10/94, pp. 56228-56229), the Health Care Financing Administration (HCFA) recommends limiting appeals of a NATCEP loss as a consequence of a remedy to an IDR. As the result of HCFA's recommendation and sec.431.152(f)(2) not providing a formal appeal for the loss of a NATCEP resulting from remedies, DHS provides facilities the opportunity to dispute the consequence of NATCEP loss through the same IDR at which a facility disputes the survey findings. Also, since 42 CFR does not provide the opportunity for a facility to dispute or appeal a noncompliance with the NATCEP or CEP standards, DHS does provide a state level formal appeal for such underlying factors resulting in loss of NATCEP. DHS does not see the need for providing an IDR for noncompliance factors leading to NATCEP loss that are appealable through an formal appeal. Comment: Sections 94.9(d) and 94.9(e)(3) state that no facility will be "entitled to a formal hearing as provided by sec.sec.431.151-431.153, Subpart D or 42 CFR and part sec.498 of 42 CFR." Change the word "and" to "or" between the CFR citations. Response: DHS agrees and has made the change. Comment: Section 94.9(e) should permit all facilities the right to request a formal hearing at the state level to contest the loss of NATCEP approval. A facility that is entitled to a formal hearing as provided by sec.sec.431.151- 431.153, Subpart D of 42 CFR will not be given a formal opportunity to contest the loss of NATCEP approval. In 42 CFR 431.153(b)(3) it specifically provides that loss of approval of NATCEP is not subject to appeal as part of a formal hearing conducted under that subpart. Similarly, 42 CFR 498.3(d)(10)(iii) provides that the loss of approval of a NATCEP is not an initial determination and, therefore, cannot be reviewed by the administrative law judge. There is no rational basis for denying some facilities the opportunity to formally contest the loss of a NATCEP while denying other facilities this opportunity based on whether the facility is entitled to a formal hearing to address other issues. Response: DHS sees facilities as having due process requirements met by being able to appeal the underlying factors that lead to NATCEP loss as provided in 42 CFR sec.sec.431.151-431.153. In addition, in Regional Survey and Certification Letter Number: 96-06, HCFA, in consultation with its Office of General Council, determined that the withdrawal of approval of NATCEP/CEP is an automatic statutory consequence of the imposition of a remedy or is predicated on the existence of a condition such as a nurse staffing waiver or extended survey. A facility may appeal a remedy but may not appeal the consequence of a remedy. Comment: Subsection sec.94.9(d) appears to provide that a facility that is entitled to a formal appeal under the federal rules, i.e., for a remedy or denial of payment for new admissions or monetary penalties that has actually been imposed would not be allowed to appeal a NATCEP withdrawal, but would be limited to rebutting the survey findings only through the IDR process. The commenter does not agree with this. Even if the facility can appeal a remedy under the federal rules, it cannot contest the NATCEP withdrawal at the HCFA hearing so this essentially leaves the facility without any meaningful due process since the IDR cannot be called due process. Further, the Texas Administrative Procedures Act (APA) requires a hearing on the denial of a license, certificate or permit no matter what federal law says. This appears to be a violation of the APA. Response: DHS does not agree with the comment. First, sec.94.9(d) does not limit rebutting the survey findings through an IDR. The subsection states that a facility may dispute a NATCEP withdrawal during the same IDR at which it disputes the survey findings. However, a facility still has the right to appeal remedies resulting from the survey findings at a formal hearing as provided in 42 CFR sec.sec.431.151-431.153 or sec.498. Section 94.9 addresses the processes for disputing loss of NATCEP approval and does not address the processes for the disputing of survey findings or remedies. Second, the department is not violating the APA because NATCEP approval is not equivalent to a license, certificate or permit. Comment: Subsection 94.9(e) indicates that a facility not entitled to a formal appeal under federal law is entitled to a formal appeal of the NATCEP loss. Apparently, that would include facilities that had NATCEPs withdrawn due to an extended survey, had a temporary manager appointed, or had been closed can appeal since no formal hearing is provided for those adverse actions under the federal rules. What happens if, as is often the case, the provider has both an extended survey (which cannot be appealed) and monetary penalties (which can be appealed)? Which rules applies? Apparently, facilities that could file an appeal of a NATCEP withdrawal can also file an IDR. However, they must also begin the formal appeal process long before the IDR process must be completed (i.e., formal appeal must be filed within 20 days of notice of denial). If an IDR is filed, the appeal should not be due until after the IDR has been ruled on. Response: First, in the case of both an extended survey and monetary penalties, the appeal rules for the monetary penalties would apply to the facility, which has the opportunity to request an IDR to dispute the survey findings leading to the monetary penalties and subsequent loss of NATCEP. Second, the comment is incorrect that the formal appeal process begins long before the IDR process must be completed. The department does not send the notice of NATCEP loss withdrawal until the IDR is completed. Comment: The department should delete the sentence in sec.94.9(f)(2) stating, "If the right to an IDR or formal hearing is deemed to be waived, the proposed action will be taken." It is self-evident that a facility that waives its right to a formal appeal will lose the approval of its NATCEP as stated in the notice letter from the Department. Failure to request IDR should not result in the immediate loss of the NATCEP, if the facility has a formal hearing pending pursuant to sec.sec.431.151-431.153, Subpart D of 42 CFR or part sec.498 of 42 CFR. In such cases, approval of the NATCEP should not be withdrawn or denied until a final administrative order upholding the findings of noncompliance that led to the extended/partial extended survey or other remedy that is the basis for the proposed withdrawal is issued. Response: DHS disagrees with the recommended deletion, but agrees to amend sec.94.9(f)(2) and add sec.sec.94.9(g) and 94.9(c)(4) to better clarify when a proposed action will be taken. The amendment will state that a facility waiving all of its available administrative appeals will result in the proposed action being taken. The text that was in sec.94.9(f) is now reformatted as sec.94.9(h). Comment: Section 94.12 is too vague. Spell out the criteria for retraining and retesting. Response: DHS agrees and has added language to sec.94.12 to clarify the criteria. In addition, DHS added a Social Security Administration cite to sec.94.4(f)(1) to aid users of the rule and has corrected a typographical error in sec.94.6(a)(4). The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32; the Health and Safety Code, Chapter 250; and Texas Government Code, sec.531.021. The Human Resources Code, Chapters 22 and 32, provide the department with the authority to administer public and medical assistance programs. The Health and Safety Code, Chapter 250, provides the department with the authority to administer the nurse aide program and registry. The Texas Government Code, sec.531.021, 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, and the Health and Safety Code, sec.sec.250.001-250.009. sec.94.4. Nurse Aide Training and Competency Evaluation Program Requirements. (a) (No change.) (b) A person or entity which desires to offer a NATCEP shall file an application for approval on official forms prescribed by the Texas Department of Human Services (department) which shall include but not be limited to: (1)-(2) (No change.) (3) the name of the program director and program instructor and verification that they meet the requirements in sec.94.6 of this title (relating to Program Director, Program Instructor, Supplemental Trainers, and Skills Examiner Requirements); (4) the total number of classroom and clinical hours; (5) a list of facilities to be used for clinical training and letter(s) of agreement from the facilities signed by the chief executive officer or administrator of the facilities, if cooperative agreements are made between the NATCEP and the facility unless the facility is exempt under subsection (c) of this section; (6) the location of the classroom course and verification that the classroom and skills training room(s) including adequate space, cleanliness, safety, lighting, and temperature controls; (7) verification that the NATCEP shall follow the rules and the curriculum established by the department and shall agree to permit unannounced visits by the department or its designee; and (8) additional information and supporting documentation requested by the department. (c) An applicant for a NATCEP may request an exemption from clinical training in a facility by filing an application on an official form which: (1) is submitted as a non-facility-based program; (2) is established to train nurse aides for a facility which is prohibited from participation in the training and testing of nurse aides under subsection (f) of this section or under sec.94.9 of this title (relating to Withdrawal of Approval of a Nurse Aide Training and Competency Evaluation Program, Program Director or Skills Examiner. The name of the prohibited facility must be submitted on the application; and (3) includes, as an alternative to clinical training in a facility, 24 clock hours of supervised skills training in a laboratory or other settings in which trainees, under the direct supervision of a licensed nurse, must practice and demonstrate competency while performing skills on an individual, except for pericare and rectal temperatures. (A) The laboratory setting, other setting, such as a facility with NATCEP approval, licensed personal care home, hospital, or health care setting, and any other site must provide equipment, but not limited to beds, chairs, tables, sinks, tubs or showers, and supplies required to perform all of the skills listed on the nurse aide performance record. Manikins must be available for performing skills such as pericare and rectal temperatures. The department requires documentation with the NATCEP application that shows the NATCEP attempted to secure a facility with NATCEP approval or other setting, which must be identified by type of setting, name and address, for clinical training prior to securing clinical training in a laboratory setting or any other site. (B) The laboratory or other setting must ensure a safe and effective learning environment for trainees and volunteer subjects. (d) If an entity or person desires to offer more than one NATCEP for which the required number of classroom hours or the location of the classroom course differs, the entity or person shall file a separate application for each of these separate NATCEPs. (e) A course which exceeds both the curriculum content and hours required by the department must teach the NATCEP curriculum in one distinct and separate segment of the longer course. (f) A NATCEP offered by or in a facility shall not be approved by the department if within the previous two years, the facility: (1) has operated under a waiver under 42 United States Code (USC), sec.1395i- 3(b)(4)(C)(ii)(II) (Social Security Act (SSA)), sec.1819(b)(4)(C)(ii)(II)) or under 42 USC, sec.1396r(b)(4)(C)(ii) (SSA, sec.1919(b)(4)(C)(ii) relating to the services of a registered nurse; (2) has been subject to an extended (or partial extended) survey under 42 USC, sec.1395i-3(g) (SSA, sec.1819(g)) or under 42 USC, sec.1396r(g) (SSA, sec.1919(g)); (3) has been assessed a civil money penalty described in 42 USC, sec.1395i-3(h) (SSA, sec.1819(h)) or in 42 USC, sec.1396r(h) (SSA, sec.1919(h)) of not less than $5,000; or (4) has been subject to: (A) denial of payment under 42 USC sec.1395i-3(h) (SSA, sec.1819(h)) or under 42 USC, sec.1396r(h) (SSA, sec.1919(h)); (B) appointment of temporary management under 42 USC sec.1395i-3(h) (SSA, sec.1819(h)) or under 42 USC, sec.1396r(h) (SSA, sec.1919(h)); (C) termination of participation under 42 USC sec.1395i-3(h)(4) (SSA, sec.1819(h)(4)) or under 42 USC, sec.1396r(h)(1)(B)(i) (SSA, sec.1919(h)(1)(B)(i)); or (D) closure of the facility under 42 USC sec.1396r(h)(2) (SSA, sec.1919(h)(2)). (g) Each NATCEP must teach a minimum of 75 clock hours of training, including at least: (1) 51 clock hours of classroom training defined as classroom and skills training which does not involve direct care of residents by trainees; and (2) 24 clock hours of clinical training defined as hands on care of residents in a nursing facility or an alternative to clinical training as described in subsection (c) of this section by trainees under the direct supervision of a licensed nurse. (h) Each NATCEP must teach the curriculum established by the department including: (1) at least 16 introductory hours of training in the following areas prior to any direct contact with a resident: (A) communication and interpersonal skills; (B) infection control; (C) safety/emergency procedures including the Heimlich maneuver; (D) promoting residents' independence; and (E) respecting residents' rights; (2) personal care skills; (3) basic nursing skills; (4) mental health and social service needs; (5) care of cognitively impaired residents; (6) basic restorative services; and (7) residents' rights. (i) A NATCEP must have an approved program director and program instructor who meets the requirements of sec.94.6(a) and (b) of this title (relating to Program Director, Program Instructor, Supplemental Trainers, and Skills Examiner Requirements) at the time of initial approval and during the time training is occurring. (j) A NATCEP must ensure that trainees: (1) complete at least the first 16 hours of training (Section I of the curriculum) prior to any direct contact with a resident; (2) do not perform any services for which they have not been trained and have been found to be proficient by an instructor; (3) who are performing skills on individuals as part of a NATCEP are under the direct supervision of a licensed nurse; (4) who are providing services to a resident are under the general supervision of a licensed nurse; and (5) are clearly identified as trainees during the clinical training. (k) A NATCEP must notify the department of any change in the information presented in an approved application. Such changes must be approved by the department prior to the effective date of the change. The department will conduct a review of the program if it determines that the changes are substantive. (l) Each NATCEP must use a department performance record to account for major duties/skills taught, trainee performance of duty/skill, satisfactory or unsatisfactory performance, and name of instructor supervising the performance. At the completion of the NATCEP, the trainee and his employer, if applicable, will receive a copy of the performance record. (m) The NATCEP must maintain records which must be available to the department or its designees at any reasonable time and which include for each new session of the NATCEP: (1) dates and times of all classroom and clinical hours; (2) full name and social security number of each trainee; (3) attendance record of each trainee; and (4) final course grade for the training portion of the NATCEP indicating pass or fail for each trainee. (n) Each NATCEP must meet the requirements of this chapter and include the competency evaluation program specified in sec.94.5(b)-(n) of this title (relating to Competency Evaluation Program Requirements). (o) A nurse aide who is employed by, or who has received an offer of employment from, a facility on the date on which the nurse aide begins a NATCEP may not be charged for any portion of the NATCEP, including any fees for textbooks or other required course materials. (p) If an individual does not meet the requirements of subsection (o) of this section, but becomes employed as a nurse aide by, or receives an offer of employment as a nurse aide from a facility not later than 12 months after completing a NATCEP, the state provides for the reimbursement of costs incurred in completing the NATCEP on a pro rata basis during the period in which the individual is employed as a nurse aide. (q) The ratio of instructors to trainees in skills and clinical training must ensure that each trainee is provided safe and effective assistance and supervision. (r) Each NATCEP must primarily provide educational and training opportunities for the trainee(s) rather than primarily provide nursing or nursing-related services to the facility, its residents, or clients. (s) The graduates' success rate on the examination will be monitored by the department and may be utilized as a criteria for withdrawing NATCEP approval. (t) The department must approve a NATCEP prior to operation or solicitation or enrollment of trainees. (u) Department approval of a NATCEP covers only approval of the required curriculum and hours and should not be considered approval of additional content or hours. (v) An orientation given by a facility to a nurse aide employed in the facility does not constitute a part of a NATCEP. sec.94.9. Withdrawal of Approval of a Nurse Aide Training and Competency Evaluation Program, Program Director or Skills Examiner. (a) The department may withdraw approval of a nurse aide training and competency evaluation program (NATCEP): (1) as the result of noncompliance with any part of sec.94.4 (a)-(e) and (g)-(v) of this title (relating to Nursing Aide Training and Competency Evaluation Program Requirements) or any part of sec.94.5 of this title (relating to Competency Evaluation Program Requirements); (2) as the result of the facility's refusing to permit unannounced visits by the department; or (3) for a NATCEP offered by or in a facility, based on sec.94.4(f) of this title (relating to Nurse Aide Training and Competency Evaluation Program Requirements). (b) The department may withdraw approval of a skills examiner because of noncompliance with sec.94.6 of this title (relating to Program Director, Program Instructor, Supplemental Trainers, and Skills Examiner Requirements). (c) If the department proposes to withdraw approval of a NATCEP or skills examiner, the department must notify the NATCEP or skills examiner by mail at the last known address as shown in the department's records or by personal delivery. (1) The notice must state the facts or conduct alleged to warrant the action and state that: (A) the skills examiner may request a formal hearing; or (B) the entity providing the NATCEP, if entitled under subsection (e) of this section, may request a formal hearing, or, if entitled under subsection (d) of this section, may request a review of the NATCEP withdrawal during the informal dispute resolution (IDR) available to refute the adverse survey action resulting in the withdrawal of NATCEP approval. (2) A written request for an IDR must be submitted as provided in sec.19.2147 of this title (relating to Informal Dispute Resolution). The department will hold the IDR pursuant to the applicable provisions of sec.19.2147 of this title (relating to Informal Dispute Resolution). (3) A written request for a formal hearing must be submitted within 20 days of the date the withdrawal notice is received. The hearing will be held pursuant to the applicable provisions of the department's hearing procedures as provided in sec.sec.79.1601- 79.1614 of this title (relating to Formal Appeals). (4) When an entity providing the NATCEP or a skills examiner is entitled to a formal hearing, the department does not withdraw NATCEP or skills examiner approval unless an adverse action results from the hearing. (d) A facility may request an IDR if approval of a NATCEP offered by or in a facility is withdrawn based on sec.94.4(f) of this title (relating to Nurse Aide Training and Competency Evaluation Program Requirements) and the facility is entitled to a formal appeal of an adverse action which arose from the same survey activity that resulted in the withdrawal of approval of the NATCEP, as provided in 42 Code of Federal Regulations (CFR) sec.431.153 (relating to Evidentiary Hearing) or Part 498 of 42 CFR (relating to Appeals Procedures for Determinations that Affect Participation in Medicare and for Determinations that Affect the Participation of ICFs/MR and Certain NFs in Medicaid). The IDR the facility may request is the IDR the facility is allowed to request under 42 CFR sec.488.331 and sec.19.2147 of this title (relating to Informal Dispute Resolution). This subsection does not entitle a facility to an additional IDR beyond those provided for in 42 CFR sec.488.331 and sec.19.2147 of this title (relating to Informal Dispute Resolution). An IDR to refute survey findings is the only appeal available to dispute the withdrawal of approval of a NATCEP under the circumstances described in this subsection. However, if the formal appeal of an adverse action results in the adverse action which caused loss of NATCEP approval being overturned, the facility's NATCEP approval will not be withdrawn. If the facility does request the formal appeal of an adverse action to which it is entitled under 42 CFR sec.431.153 (relating of Evidentiary Hearing) or Part 498 of 42 CFR (relating to Appeals Procedures for Determinations that Affect the Participation of ICFs/MR and Certain NFs in Medicaid), the department will not take action concerning approval of the facility's NATCEP until the appeal has been completed. (e) An entity providing a NATCEP may request a formal hearing if approval of a NATCEP is withdrawn: (1) as a result of noncompliance with any part of sec.94.4(a)-(e) and (g)-(v) of this title (relating to Nurse Aide Training and Competency Evaluation Program Requirements) or any part of sec.94.5 of this title (relating to Competency Evaluation Program Requirements); (2) as a result of the entity providing the NATCEP refusing to permit unannounced visits by the department; or (3) for a NATCEP offered by or in a facility, based on sec.94.4(f) of this title (relating to Nurse Aide Training and Competency Evaluation Program Requirements) and the facility is not entitled to a formal appeal of an adverse action which arose from the same survey activity that resulted in the withdrawal of approval of the NATCEP, as provided in 42 CFR sec.431.153 (relating to Evidentiary Hearing) of Part 498 of 42 CFR (relating to Appeals Procedures for Determinations that Affect Participation in Medicare and for Determinations that Affect the Participation of ICFs/MR and Certain NFs in Medicaid). The facility may request an IDR as part of the survey process as provided in 42 CFR sec.488.331 and 40 TAC sec.19.2147 of this title (relating to Informal Dispute Resolution). This subsection does not entitle a facility to an additional IDR beyond those provided for in 42 CFR sec.488.331 and sec.19.2147 of this title (relating to Informal Dispute Resolution). (f) The entity providing the NATCEP or the skills examiner is deemed to have waived the right to either an IDR or a formal hearing, as those rights are set out in this section if: (1) the entity providing the NATCEP or the skills examiner does not request in writing the IDR or formal hearing; or (2) the entity providing the NATCEP or the skills examiner fails to appear or be represented at the scheduled IDR or formal hearing. If the right to an IDR or a formal hearing is deemed to be waived, the proposed action will be taken. (g) The department will take the proposed action toward NATCEP or skills examiners approval if an entity providing the NATCEP or a skills examiner waives all federal and state administrative appeals available to the entity or skills examiner. (h) Students who have started a NATCEP from which approval is proposed to be or has been withdrawn shall be allowed to complete the NATCEP. sec.94.12. Requirements for Recertification. (a) A certified nurse aide who has had 24 consecutive months during which he or she has neither performed nursing or nursing-related services nor has acted as a nurse aide for monetary compensation loses his or her certification and is removed from active status on the Nurse Aide Registry as stated in sec.94.11(b) of this title (relating to Registry; Findings; Inquiries). (b) A person for whom subsection (a) of this section applies: (1) must successfully complete a new competency evaluation program (CEP); or (2) may, at his or her option, successfully complete a new nurse aide training and competency evaluation program (NATCEP). (c) A person for whom subsection (a) of this section applies and who complies with subsection (b) of this section will be recertified as a nurse aide and be placed back on the Nurse Aide Registry by the Texas Department of Human Services. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 25, 1997. TRD-9702683 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: April 4, 1997 Proposal publication date: October 22, 1996 For further information, please call: (512) 438-3765