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 16. ECONOMIC REGULATION PART VIII. Texas Racing Commission CHAPTER 303.General Provisions SUBCHAPTER D. Texas Bred Incentive Programs Programs for Horses 16 TAC sec.303.94 The Texas Racing Commission adopts an amendment to sec.303.94, concerning the rules for the Texas Bred Incentive Program for Arabian horses without changes to the proposed text as published in the June 3, 1997, issue of the Texas Register (22 TexReg 4856). The amendment was presented to the Commission as a petition for rulemaking under 16 Texas Administrative Code, sec.307.303. The petitioner is the Texas Arabian Breeders Association, the officially designated breed registry for Arabian horses in Texas. The amendment is adopted to ensure that more citizens of this state will be eligible to participate in and receive financial awards through the Texas Bred Incentive Program for Arabian horses. The amendment extends the period during which an Arabian horse may be accredited as Texas-bred under the "grandfather clause". No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.08, which authorizes the commission to adopt rules relating to the accounting, audit, and distribution of all amounts set aside for the Texas-bred 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 July 12, 1997. TRD-9709087 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: August 15, 1997 Proposal publication date: June 3, 1997 For further information, please call: (512) 833-6699 CHAPTER 313. Officials and Rules of Horse Racing SUBCHAPTER C.Claiming Races 16 TAC sec.313.312 The Texas Racing Commission adopts an amendment to sec.313.312, concerning protests relating to claimed horses without changes to the proposed text as published in the June 3, 1997, issue of the Texas Register (22 TexReg 4857). The amendment is adopted to ensure licensees who claim horses will be better informed about the physical condition of the horses. The amendment requires the Commission to notify the claimant of a horse if the horse tested positive for a prohibited substance. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of racetracks. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 12, 1997. TRD-9709088 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: August 15, 1997 Proposal publication date: June 3, 1997 For further information, please call: (512) 833-6699 CHAPTER 315.Officials and Rules of Greyhound Racing SUBCHAPTER B.Entries and Pre-Race Procedures 16 TAC sec.315.102 The Texas Racing Commission adopts an amendment to sec.315.102, concerning the number of double entries that may be entered in a greyhound race without changes to the proposed text as published in the June 3, 1997, issue of the Texas Register (22 TexReg 4857). The amendment is adopted to ensure that the number of greyhounds available for competition will increase and racing greyhounds will be given sufficient time to rest between races. The amendment is the result of a petition for rulemaking under 16 Texas Administrative Code, sec.307.303, submitted by Corpus Christi Greyhound Race Track. The amendment authorizes up to two double entries in each race. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of racetracks. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 12, 1997. TRD-9709089 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: August 15, 1997 Proposal publication date: June 3, 1997 For further information, please call: (512) 833-6699 CHAPTER 321.Pari-mutuel Wagering SUBCHAPTER B.Distribution of Pari-mutuel Pools 16 TAC sec.321.111, sec.321.117 The Texas Racing Commission adopts the repeal of sec.321.111 and sec.321.117, concerning the distribution of the twin trifecta wagering pool and the tri- superfecta wagering pool without changes to the proposed text as published in the June 3, 1997, issue of the Texas Register (22 TexReg 4858). The repeals are adopted to ensure pari-mutuel wagering will be conducted with the utmost integrity. New versions of these rules are being adopted to replace the repealed rules. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.11.01 which authorizes the Commission to adopt rules to strictly regulate pari-mutuel wagering. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 12, 1997. TRD-9709090 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: October 6, 1997 Proposal publication date: June 3, 1997 For further information, please call: (512) 833-6699 The Texas Racing Commission adopts new sec.321.111 and sec.321.117, concerning the distribution of the twin trifecta wagering pool and the tri-superfecta wagering pool without changes to the proposed text as published in the June 3, 1997, issue of the Texas Register (22 TexReg 4858). The new sections are adopted to ensure pari-mutuel wagering will be conducted with the utmost integrity. The new sections replace the old versions which are being repealed to conform the rules to the Model Rules for Pari-mutuel Wagering promulgated by the Association of Racing Commissioners International. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.11.01 which authorizes the Commission to adopt rules to strictly regulate pari-mutuel wagering. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 12, 1997. TRD-9709091 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: October 6, 1997 Proposal publication date: June 3, 1997 For further information, please call: (512) 833-6699 16 TAC sec.321.112 The Texas Racing Commission adopts an amendment to sec.321.112, concerning the distribution of the pick (n) wagering pool without changes to the proposed text as published in the June 3, 1997, issue of the Texas Register (22 TexReg 4864). The amendment is adopted to ensure pari-mutuel wagering will be conducted with the utmost integrity. The amendment clarifies the distribution of the minor pool and the procedure for distributing the pool on mandatory payout days. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.11.01 which authorizes the Commission to adopt rules to strictly regulate pari-mutuel wagering. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 12, 1997. TRD-9709092 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: October 6, 1997 Proposal publication date: June 3, 1997 For further information, please call: (512) 833-6699 TITLE 30. ENVIRONMENTAL QUALITY PART I. Texas Natural Resource Conservation Commission CHAPTER 122. Federal Operating Permits SUBCHAPTER D. Affected State Review, United States Environmental Protection Agency Review, and Citizen Petition The Texas Natural Resource Conservation Commission (commission) adopts the repeal of sec.122.316, concerning Hearing and Comment Procedures for Operating Permits, without changes to the proposed text as published in the April 4, 1997, issue of the Texas Register (22 TexReg 3281). The commission also adopts new sec.122.340, concerning Notice and Comment Hearing, in a new undesignated head entitled "Notice and Comment Hearing," and new sec.122.345, concerning Notice of Proposed Final Action, in a new undesignated head entitled "Notice of Proposed Final Action." The new sections are adopted with changes to the proposed text as published in the April 4, 1997, issue of the Texas Register (22 TexReg 3281). The purpose of the repeal of sec.122.316 is to allow the adoption of new sec.122.340, concerning Notice and Comment Hearing, and sec.122.345, concerning Notice of Proposed Final Action. The repeal of sec.122.316 was originally scheduled to be included in the proposed major revisions to 30 TAC Chapter 122, concerning Federal Operating Permits (the proposed revisions to Chapter 122 were proposed in the May 13, 1997, issue of the Texas Register (22 TexReg 4140)). This proposed major revision to Chapter 122 enables the commission to submit a revised program to the United States Environmental Protection Agency (EPA) to obtain full program approval of the Texas Title V Operating Permits Program. The EPA's rule implementing the operating permits program, 40 Code of Federal Regulations (CFR) Part 70, requires states to provide public notice and it allows for options in how that notice can be provided. This reorganization of the existing rules and selection of a different option for providing notice is intended to meet the requirements of 40 CFR Part 70. Although the elimination of the requirement to publish notice of hearings in the Texas Register, and the proposal to allow for a combined public notice could have been done as a part of the major revisions to Chapter 122, the commission wanted to have the option to combine the notices in order to meet the statutory deadline for the issuance of permits subject to Title IV of the Federal Clean Air Act concerning Acid Deposition Control. EXPLANATION OF ADOPTED RULES. Section 122.316 outlined the hearing and comment procedures, and these requirements are incorporated into the new sec.122.340 and sec.122.345. Texas Health and Safety Code, sec.382.0561(a), provides that hearings regarding federal operating permits are not subject to the requirements of the Government Code, Administrative Procedure Act, Chapter 2001 or 2002. Because hearings for federal operating permits are not contested case hearings, they are not subject to the procedures in 30 TAC Chapter 55, concerning Request for Contested Case Hearings. The commission intends that the processing of hearing requests will be done under Chapter 122 and not under Chapter 55. The applicant for a federal operating permit is required to publish two types of public notices: a notice of a draft federal operating permit; and a notice of a hearing on the draft permit, if a hearing is requested during the public comment period. Texas Health and Safety Code, sec.382.031(a), requires notice of a hearing to be published in a newspaper of general circulation in the municipality in which the site is located or is proposed to be located or in the municipality nearest to the location or the proposed location of the site. This notice must be published at least 30 days prior to the date set for the hearing. In addition to the notice required by sec.382.031(a), sec.122.316 requires notice of a hearing on a draft federal operating permit to also be published in the Texas Register. As a part of the ongoing efforts by the commission to provide for public notice and easy access to information about permits, the commission is adopting procedures that will simplify the public notice requirements for both applicants and the public by requiring the notice of a hearing to be published in a newspaper of general circulation, and eliminating the notice of hearing that would have been published in the Texas Register. The publication of notice of a hearing in a newspaper of general circulation is intended to meet the requirements of sec.382.031(a) to provide at least 30 days' notice of a hearing. The commission is also adopting new procedures that allow for the combination of the notice of a draft permit with the notice of hearing. The elimination of the Texas Register notice of hearing and the ability to combine notices of draft permits and hearings will enable the commission to provide for an efficient and user- friendly public notice process and it will allow the commission to meet deadlines required by the Federal Clean Air Act, sec.503(c), 40 CFR Part 70, Operating Permit Program, sec.70.4(b)(11), and Texas Health and Safety Code, sec.382.0542(b). EXPLANATION OF COMBINED HEARING NOTICE. The adopted rules provide the executive director the discretion to allow the notice of hearing to be combined with the notice of a draft permit. When the notices are combined, the notice of the draft permit will include information regarding the date, time, and location for a hearing. If no hearing requests are received during the public comment period from a person who may be affected by emissions from the site, then the pre- scheduled hearing will not be held. If a hearing is requested during the public comment period by a person who may be affected by emissions from the site, and the hearing request is reasonable, the executive director will hold the hearing. If it is not possible to combine the notice of the draft permit with the notice of the hearing, the executive director will require the publication of separate notices. Since the public notice requirements currently in sec.122.316 have not been implemented at this point in time, the agency is merely changing its option of the method to publish hearing notices as 40 CFR 70 allows. The publication of the combined notice in the newspaper is beneficial to the general public in that it gives better hearing notice to the public and allows the public better opportunity to comment on the draft permit(s). Since the combined notice will contain the information relevant to the scheduling of hearings, the public will have immediate knowledge of the details regarding the hearing and will be better able to plan in order to attend a hearing, if one is held. A combined notice allows for the presentation of information related to the draft permit to be done at one time in a newspaper of general circulation in the area near the site. If the requirement to publish notice in the Texas Register was retained, it is likely that the commission would not be able to allow a combined notice. This is because of the strict requirements of the Texas Register for the submission of items to be published and the timing of those submissions. In order for the commission to successfully implement the combined notice concept in conjunction with the requirement to publish notice in the Texas Register, the commission would have to coordinate the publication by applicants of the notice of the draft permit in a newspaper and the dates for Texas Register submission and publication. This is a complex undertaking, because not all newspapers are published daily (some are weekly and bi-weekly). The Texas Register is currently published at least 100 times a year. However, during the 1997 Texas legislative session, Senate Bill 1177 was passed (effective September 1, 1997) which amended Government Code, sec.2002.013, to require that the Texas Register be published at least 52 times a year. This reduction in the availability of the Texas Register will further complicate the ability to coordinate notices with newspaper publication schedules. Since notice of hearings must be provided at least 30 days prior to the date of the hearing, it is possible that the newspaper notice or the Texas Register notice might not be published in time to meet the 30-day requirement, thus forcing a costly republication of the newspaper notice or a delay while waiting for the next Texas Register publication. Federal Clean Air Act, sec.503(c), and 40 CFR Part 70, sec.70.4(b)(11) are the federal requirements that dictate the permit issuance schedule for the federal operating permit program. Health and Safety Code, sec.382.0542(b), provides the schedule for taking final action on applications submitted pursuant to the requirements of the federal operating permit program. The commission is required to take final action on at least one-third of those applications every year of the first five years of the operating permit program. In addition, the commission is also required to review and take final action on the applications subject to Title IV of the Federal Clean Air Act concerning Acid Deposition Control. Title IV requires sources subject to that program to obtain permits that address issues related to acid rain. The commission must issue the acid rain permits by December 31, 1997. The ability to use the combined notice and the elimination of the Texas Register notice will greatly increase the commission's ability to meet this deadline along with the one-third requirements of sec.382.0542(b). If not removed, the requirement to publish a hearing notice in the Texas Register will adversely affect the agency's ability to issue Title V federal operating permits in an efficient and streamlined manner, because of the additional processing time that it will take to coordinate two separate notices. TAKINGS IMPACT ASSESSMENT. The commission has prepared a Takings Impact Assessment for the rules in accordance with Texas Government Code, sec.2007.043. The following is a summary of that assessment. The purpose of this rulemaking is to eliminate the requirement to publish notice of hearings in the Texas Register and to allow for the combination of the public notice of the draft permit and the hearing notice into one notice, and this combined notice shall be published in a newspaper of general circulation. These rules will substantially advance this specific purpose since they require the applicant to publish the hearing notice in a newspaper of general circulation and provide the option of allowing the combination of the two notices into one notice. The promulgation and enforcement of these rules will not burden private real property because the adopted rules will enable the commission to meet the statutory deadlines for taking final action on applications for federal operating permits and the reorganization of the existing rules and selection of a different option for providing notice is intended to meet the requirements of 40 CFR Part 70. COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW. The commission has determined that this rulemaking action is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, sec.sec.33.201 et. seq.), the rules of the Coastal Coordination Council (31 TAC Chapters 501-506), and the commission's rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 31 TAC sec.505.11(b)(2), sec.505.22(a), and 30 TAC sec.281.45(a)(3) relating to actions and rules subject to the CMP, agency rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission has reviewed this rulemaking action, including comments received, if any, for consistency, and has determined that this rulemaking action is consistent with the applicable CMP goals and policies. The permits issued under Chapter 122, concerning Federal Operating Permits, do not authorize the increase in air emissions nor do these permits authorize new air emissions. Therefore, in compliance with 31 TAC sec.505.22(e), the commission affirms that this rule is consistent with CMP goals and policies. PUBLIC HEARING AND COMMENTERS. A public hearing was held on May 5, 1997, in Austin. The comment period closed on May 5, 1997. Written comments were received from one interested party, Texas Eastman Division, Eastman Chemical Company; there was no oral testimony given at the public hearing. The commenter strongly supported the intent of the proposed revisions, and did not suggest changes or clarifications. The commenter stated that it believes that the notice and comment type of hearing allows for more simplified and direct public participation than the contested case hearing. The commenter also supported the change that eliminates the publication of the hearing notice in the Texas Register, and instead, requires the publishing of the notice in a local newspaper. In addition, the commenter supported the combination of the draft permit notice and the hearing notice where possible. Texas Health and Safety Code, sec.382.031(a), requires that notice of a hearing to be published in a newspaper of general circulation at least 30 days prior to the date set for the hearing. The notice required by sec.122.340(e) is intended to meet the requirements of sec.382.031(a). Section 122.340(d) of the proposed rule requires the executive director to mail notice 30 days before the date of a hearing to the applicant, to any person who made a timely request for a hearing, and to persons who have submitted comments. The notice requirements of sec.382.031(c) explicitly state that if a hearing notice is required by Chapter 382 to be given to a person, the notice must be served either personally or mailed to the person at the person's most recent address that is known to the commission. There is no notice of hearing requirement in Chapter 382 regarding federal operating permits that requires a hearing notice to be served personally or mailed to a person. So, the commission has determined that the proposed requirement to mail notice in sec.122.340(d) is unnecessary. Although the commission does not believe that there is a legal requirement to provide mailed notice of operating permit hearings, the commission considered whether such notice would be an effective and efficient method for informing the public about hearings for federal operating permits. One of the goals of the proposed rule was to provide the executive director the discretion to allow the notice of hearing to be combined with the notice of a draft permit. The combined notice will provide hearing scheduling information to the public at the same time that they learn about a draft permit. The hearing notice will provide the time, location, and nature of the hearing and it will also contain a brief description of the purpose of the hearing. The combined notice will also have instructions for how to request a hearing or how to obtain additional information about the draft permit. If no hearing requests are received during the public comment period from a person who may be affected by emissions from the site, then the pre-scheduled hearing will not be held. The combined notice will also provide the name and phone number of the commission office to call to verify that a hearing will be held. The commission has determined that this kind of contemporaneous notice is actually more valuable and relevant for interested members of the public because the combined notice will provide wider dissemination of information about the draft permit. In addition, the combined notice will provide earlier notification of a hearing, if one is held. If the commission included a requirement to provide mailed notice of hearings 30 days in advance of the hearing date, the benefit of using the combined notice would be diminished. Because the commission intends to hold the hearings approximately one to two weeks after the end of the public comment period, a 30-day mailed notice requirement would significantly lengthen the dates that would be available for hearings. The commission intends to utilize this option for contemporaneous notice as often as possible for federal operating permits. Therefore, sec.122.340(d) has been revised in the final rule to eliminate the requirement for 30 days' advance mailed notice of a notice and comment hearing. There were also several other minor changes made to the rule language in both sections to correct grammatical mistakes and to make stylistic changes. 30 TAC sec.122.316 STATUTORY AUTHORITY. The repeal is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.031, which provides for mailed notice of hearings when required by Health and Safety Code, Chapter 382; sec.382.056, which provides for notice of intent to obtain permits and request hearings; sec.382.0561, which concerns federal operating permits and hearings for those permits; and sec.382.0562, concerning the notice of decision related to applications for federal operating permits. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 9, 1997. TRD-9708938 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 30, 1997 Proposal publication date: April 4, 1997 For further information, please call: (512) 239-1966 Notice and Comment Hearing 30 TAC sec.122.340 The new section is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.031, which provides for mailed notice of hearings when required by Health and Safety Code, Chapter 382; sec.382.056, which provides for notice of intent to obtain permits and request hearings; sec.382.0561, which concerns federal operating permits and hearings for those permits; and sec.382.0562, concerning the notice of decision related to applications for federal operating permits. sec.122.340. Notice And Comment Hearing. (a) Notice and comment hearing requirements apply to initial issuances, significant permit revisions, reopenings, and renewals. (b) Any hearing regarding a permit will be conducted under the procedures in this section, and not under the APA. (c) Any person who may be affected by emissions from a site regulated under this chapter may request the executive director to hold a hearing on the draft permit. The request must be made during the 30-day public comment period. (d) The executive director shall decide whether to hold a hearing. The executive director is not required to hold a hearing if the basis of the request by a person who may be affected by emissions from a site is determined to be unreasonable. If a hearing is requested by a person who may be affected by emissions from a site regulated under this chapter, and that request is reasonable, the executive director shall hold a hearing. (e) At the applicant's expense, notice of a hearing on a draft permit must be published in the public notice section of one issue of a newspaper of general circulation in the municipality in which the site or proposed site is located, or in the municipality nearest to the location of the site or proposed site. The notice must be published at least 30 days before the date set for the hearing. The notice must include the following: (1) the time, place, and nature of the hearing; (2) a brief description of the purpose of the hearing; and (3) the name and phone number of the commission office to be contacted to verify that a hearing will be held. (f) At the executive director's discretion, the hearing notice may be combined with the notice of the draft permit required by this chapter. (g) Any person, including the applicant, may submit oral or written statements and data concerning the draft permit. (1) Reasonable time limits may be set for oral statements, and the submission of statements in writing may be required. (2) The period for submitting written comments is automatically extended to the close of any hearing. (3) At the hearing, the period for submitting written comments may be extended beyond the close of the hearing. (h) A tape recording or written transcript of the hearing must be made available to the public. (i) Any person, including the applicant, who believes that any condition of the draft permit is inappropriate or that the preliminary decision to issue or deny the permit is inappropriate, shall raise all reasonably ascertainable issues and submit all reasonably available arguments supporting that position by the end of the public comment period. (j) Any supporting materials for comments submitted under subsection (i) of this section must be included in full and may not be incorporated by reference, unless the materials are one of the following: (1) already part of the administrative record in the same proceedings; (2) state or federal statutes and regulations; (3) EPA documents of general applicability; or (4) other generally available reference materials. (k) The executive director shall keep a record of all comments received and issues raised in the hearing. This record is available to the public. (l) The draft permit may be changed based on comments pertaining to whether the permit provides for compliance with the requirements of this chapter. (m) The executive director shall respond to comments consistent with sec.122.345 of this title (relating to Notice of Proposed Final Action). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 9, 1997. TRD-9708939 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 30, 1997 Proposal publication date: April 4, 1997 For further information, please call: (512) 239-1966 Notice of Proposed Final Action 30 TAC sec.122.345 The new section is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.031, which provides for mailed notice of hearings when required by Health and Safety Code, Chapter 382; sec.382.056, which provides for notice of intent to obtain permits and request hearings; sec.382.0561, which concerns federal operating permits and hearings for those permits; and sec.382.0562, concerning the notice of decision related to applications for federal operating permits. sec.122.345. Notice of Proposed Final Action. (a) After the public comment period or the conclusion of any notice and comment hearing, the executive director shall send notice by first-class mail of the proposed final action on the application to any person who commented during the public comment period or at the hearing, and to the applicant. (b) The notice must include the following: (1) the response to any comments submitted during the public comment period; (2) identification of any change in the conditions of the draft permit and the reasons for the change; (3) a description and explanation of the process for public petitions to the EPA; (4) the date by which the petition must be filed; and (5) a statement that any person affected by the decision of the executive director may petition the Administrator. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 9, 1997. TRD-9708940 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: July 30, 1997 Proposal publication date: April 4, 1997 For further information, please call: (512) 239-1966 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 19.Nursing Facility Requirements for Licensure And Medicaid Certification SUBCHAPTER Z.Preadmission Screening and Resident Review (PASARR) 40 TAC sec.19.2500 The Texas Department of Human Services (DHS) adopts an amendment to sec.19.2500 with changes to the proposed text published in the May 9, 1997, issue of the Texas Register (22 TexReg 4055). Justification for the amendment is a streamlined process. Effective October 19, 1996, Public Law 104-315 deleted the federal requirement for an annual resident review. Nursing facilities are required to use the minimum data set, which collects the same information as the annual resident review. The amendment will function by deleting the annual resident review from the Preadmission Screening and Resident Review process. The preadmission screening and change in condition will continue to be conducted on admissions and when there is a change in a person's mental and physical condition, as it relates to the mental illness, mental retardation, or a related condition (MI, MR, RC) diagnosis. During the public comment period, DHS received comments from the Texas Health Care Association (THCA). A summary of the comments received and DHS's responses follows. Comment: 40 TAC sec.19.2500(c)(1). THCA recommends that the wording be changed to reflect that the facility will notify the agency(s) of changes in condition only as it relates to MI, MR or RC diagnosis. Response: The department agrees. The rules will be changed to reflect, "The nursing facility will promptly notify the mental health mental retardation authority, and PASARR unit of DHS after a significant change in the physical or mental condition of a resident that relates to the MI, MR or RC diagnosis." Comment: 40 TAC sec.19.2500(e)(4). This rule excludes the Director of Nurses or another appropriate nursing facility representative from being included in the interdisciplinary team to develop a plan for specialized services and/or alternate placement. Although the proposed language includes "other professionals as appropriate," the nursing facility representative would be an essential part of the team since they are involved with the day to day care of the individual. Response: The department will change the rule to reflect, "An interdisciplinary team will be constituted by the physician, mental health/mental retardation professional, Director of Nurses or other professionals as appropriate, the resident and legal representative, responsible party or SDM to develop a plan for specialized services and/or alternate placement." In addition, the department deleted the duplicate sentence in (b)(4)(D) and added titles for subsections (f) and (g). The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs, and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. sec.19.2500.Preadmission Screening and Resident Review (PASARR). (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise: (1)-(11) (No change.) (12) Legal representative - The parent of a minor child, the legal guardian, or the surrogate decision maker of the applicant or the resident of a nursing facility. (13) Level I - identification screening - The process of identifying individuals with an indication of mental illness, mental retardation and/or a related condition, who require a Level II PASARR assessment. (14) Level II - PASARR assessment - Preadmission Screening and Resident Review assessment of persons with mental illness, mental retardation, and/or a related condition conducted in accordance with 42 United States Code Annotated, sec.1396r. (15) Medical staff - Any staff licensed to practice medicine, such as a physician, registered nurse, or a licensed vocational nurse. (16) Mental illness - A mental disorder is a schizophrenic, mood, paranoid, panic, or other severe anxiety disorder; somatoform disorder; personality disorder; other psychotic disorder; or another mental disorder that may lead to a chronic disability and does not have a primary diagnosis of dementia (including Alzheimer's disease or a related disorder). The disorder results in functional limitations in major life activities within the past three to six months that would be appropriate for the individual's developmental stage. The individual typically has at least one of the following characteristics on a continuing or intermittent basis: serious difficulty in the areas of interpersonal functioning; and/or concentration, persistence, and/or pace; and/or adaptation to change. Within the past two years, the disorder has required psychiatric treatment more than one time and more intensive than outpatient care and/or the individual has experienced an episode of significant disruption to the normal living situation for which supportive services were required to maintain functioning at home or in a residential treatment environment or which resulted in intervention by housing or law enforcement officials. (17) Mental retardation - A diagnosis of mental retardation (mild, moderate, severe, and profound) and significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period. (18) New admission - An individual who is admitted to any nursing facility in which he has not recently resided and to which he cannot qualify as a readmission. (19) Nursing facility - A Texas Medicaid-certified institution, except for a facility certified as an intermediate care facility for persons with mental retardation or related conditions (ICF/MR/RC), providing nursing services to nursing facility residents. (20) Nursing facility applicant - An individual seeking admission to a Texas Medicaid- certified nursing facility. (21) Nursing facility resident - An individual who resides in a Texas Medicaid- certified nursing facility and receives services provided by professional medical nursing personnel of the facility. (22) QMHP - Qualified Mental Health Professional. An individual who has at least one year of experience working with persons with mental illness. (23) QMRP - Qualified Mental Retardation Professional. An individual who has at least one year experience working with persons with mental retardation and/or a related condition. (24) Parkinson's Disease - A degenerative disease of the central nervous system as diagnosed by a physician in accordance with the Classification of Diseases 9th Revision Clinical Modification (ICD-9-CM). (25) PASARR - Preadmission screening and resident review. (26) PASARR determination - A decision made by Texas Department of Human Services (DHS) PASARR Determination Program professional staff to establish if an individual requires the level of services provided in a nursing facility, as defined by medical necessity, if the individual has the need for specialized services for mental illness, mental retardation, and/or a related condition. The decisions are based on information included in the Level II PASARR Assessment. (27) Readmission - An individual who is readmitted to a nursing facility from a hospital to which he or she was transferred for the purpose of receiving care. (28) Related condition - A severe, chronic disability as defined in 42 Code of Federal Regulations sec.435.1009, in the definition of persons with related conditions, that meets all of the following conditions: (A) it is attributable to: (i) cerebral palsy or epilepsy; or (ii) any other condition including autism, but excluding mental illness, found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of persons with mental retardation, and requires treatment or services similar to those required for these persons. (B) it is manifested before the person reaches age 22. (C) it is likely to continue indefinitely. (D) it results in substantial functional limitations in three or more of the following areas of major life activity: (i) self-care; (ii) understanding and use of language; (iii) learning; (iv) mobility; (v) self-direction; and (vi) capacity for independent living. (29) Specialized services for individuals with mental illness - The implementation of an individualized plan of care developed under and supervised by an Interdisciplinary Team, which includes a physician, and other qualified mental health professionals, that prescribes specific therapies and activities for the treatment of persons who are experiencing an acute episode of severe mental illness, which necessitates supervision by trained mental health personnel. (30) Specialized services for individuals with mental retardation or a related condition - A continuous program for each client, which includes aggressive, consistent implementation of specialized and generic training, treatment, health services and related services that is directed toward: (A) the acquisition of the behaviors necessary for the client to function with as much self- determination and independence as possible; and (B) the prevention or deceleration of regression or loss of current optimal functional status. Specialized services do not include services to maintain generally independent clients who are able to function with little supervision or in the absence of a continuous specialized services program. (31) Substantial risk of serious harm to self and/or others - Harm which may be demonstrated either by a person's behavior or by evidence of severe emotional distress and deterioration in his mental condition to the extent that the person cannot remain at liberty, as determined by a court of law. (32) Terminal illness - As defined for hospice purposes in 42 Code of Federal Regulations sec.418.3 in the definition of terminally ill. (33) Ventilator dependent - Reliance upon a respirator or respiratory ventilator as a life support system to assist with breathing. (b) Preadmission screenings. (1) Purpose. All new admissions (private pay, Medicare beneficiaries, and Medicaid recipients) must be screened prior to admission to a nursing facility to determine if: (A) -(C) (No change.) (2) Exemptions. The following individuals are not subject to preadmission screenings: (A) (No change.) (B) individuals who: (i)-(ii) (No change.) (iii) have been certified by their attending physician prior to admission to the nursing facility that they are likely to require less than 30 days of nursing facility services; (C) individuals who have a terminal illness as defined for hospice purposes in 42 Code of Federal Regulations sec.418.3, in the definition of terminally ill; and (D) residents who: (i) transfer from their current nursing facility residence to a new nursing facility residence; (ii) have not had any interruption in continuous nursing facility residence other than for acute care hospitalization; and (iii) have not had any change in their mental condition. For residents who transfer from one nursing facility to another, the transferring nursing facility is responsible for ensuring copies of the most recent PASARR assessment accompany the transferring resident. (3) Level I Identification Screening. Individuals who are suspected of having mental illness, mental retardation, or a related condition (MI/MR/RC) are identified through the medical necessity screening process. (A) Medical staff document for the presence of MI if the individual meets the following criteria: (i) (No change.) (ii) has a level of impairment that results in functional limitations in major life activities within the past three to six months in the areas of interpersonal functioning, concentration, persistence, pace and/or adaptation to change; and (iii) (No change.) (B) Medical staff document for the presence of MR and/or RC if the individual: (i) (No change.) (ii) has any history of MR and/or RC identified in the past; or (iii) presents any evidence (cognitive or behavioral functioning) that may indicate the presence of MR and/or a RC. (C) Identification of MI, MR, or RC requires that an individual receive a Level II assessment prior to admission to a nursing facility. (D) An individual, who has medical necessity, may be immediately admitted to or continue residing in a nursing facility if: (i) MI, MR, or RC was substantiated in writing; (ii) (No change.) (iii) an individual is comatose, functioning at the brain stem level, ventilator dependent, terminally ill, or has a serious medical condition such as chronic obstructive pulmonary disease, anencephaly, Parkinson's disease, Huntington's disease, amytrophic lateral sclerosis, and congestive heart failure which result in an impairment so severe that the individual could not be expected to benefit from specialized services; (iv)-(vi) (No change.) (4) Level II Assessment. DHS staff must assess the need for nursing facility and specialized services. (A) -(B) (No change.) (C) It is the responsibility of the nursing facility to contact the PASARR unit of DHS and request screening of any resident suspected of having MI, MR, or RC. (c) Change in condition. (1) The nursing facility will promptly notify the mental health mental retardation authority, and PASARR unit of DHS after a significant change in the physical or mental condition of a resident that relates to the MI, MR, or RC diagnosis. (2) The PASARR unit of DHS will conduct a review, as described in subsection (b)(4) of this section, and make a determination, as described in subsection (d) of this section. (3) DHS staff must evaluate and contact the attending physician when there is a question regarding an individual's capacity to understand and meaningfully participate in the decisions regarding his eligibility to remain in the nursing facility, be alternately placed, receive specialized services, and/or initiate appeals. (A) A surrogate decision maker will be assigned by the attending physician if there is a question regarding capacity and the individual meets the criteria in the Consent to Medical Treatment Act, Health and Safety Code, Chapter 313, as referenced in sec.19.420(a)(3) of this title (relating to Documentation for the Delegation of Long-Term Care Resident's Rights). (B) An individual will be referred to probate or county court for the assignment of a legal guardian if: (i) no surrogate decision maker is available; or (ii) there is a question regarding capacity, but the individual does not meet the criteria for a surrogate decision maker under sec.19.420(a)(3) of this title (relating to Documentation for the Delegation of Long-Term Care Resident's Rights). (d) Determination process. (1) The assessment data is analyzed by a qualified mental health and/or mental retardation professional in order to determine whether: (A) -(B) (No change.) (C) An individual requires specialized services for mental retardation or a related condition. A response by a person to the environment is evidence that the person requires specialized services. (2)-(4) (No change.) (5) DHS will notify all individuals and their legal representative or surrogate decisionmaker(SDM) of the results of their PASARR determination through a letter sent to them, the nursing facility administrator, the attending physician, and the local Texas Department of Mental Health and Mental Retardation authorities, the Texas Department on Aging (TDoA), and the local Medicaid eligibility unit. Individuals who have undergone a preadmission screening or change in condition will be notified within 10 calendar days of the determination. (6) Any individual, or his legal representative or responsible party or SDM, not in agreement with the PASARR determination may file an appeal with DHS to receive a DHS fair hearing according to Chapter 79 of this title (relating to Legal Services). (A) -(B) (No change.) (e) Specialized services and alternate placement. (1) The Texas Department of Mental Health and Mental Retardation (TDMHMR) contracts with the local MHMR authority to purchase case management, specialized services, and procure alternate placement services for persons determined by DHS to require specialized services and/or request alternate placement. (2) A case manager will be assigned for those residents who require specialized services and/or request alternate placement. (3) (No change.) (4) An interdisciplinary team will be constituted by the physician, mental health/mental retardation professional, Director of Nurses, or other professionals as appropriate, the resident and legal representative, responsible party or SDM to develop a plan for specialized services and/or alternate placement. This team will identify those additional services required for specialized services that are not already being provided by the nursing facility and covered in the nursing facility daily vendor rate. (5) The case manager will provide a written report monthly to the primary or attending physician and to the nursing facility regarding the delivery of specialized services and alternate placement activities. The report will be retained in the resident's clinical record. (6) The nursing facility must allow TDoA staff or representatives from Advocacy, Inc., to counsel and inform affected residents of their rights and options under PASARR. (7) Specialized services and nursing facility services are to be coordinated and integrated for maximum benefit to the resident. A nursing facility must allow for the MHMR authority or a subcontracted provider to provide specialized services within the facility. If a nursing facility accepts individuals or has individuals who require specialized services for their mental condition, it must establish and maintain a written cooperative agreement with the local MHMR authority that includes: (A) general responsibilities of the facility and the provider for delivering the appropriate and mutually supportive services to those residents requiring specialized services for their MI/MR/RC; (B) a provision allowing the MHMR authority staff to access the resident's clinical record and assessment information to avoid unnecessary duplication of services, with appropriate consent of the eligible resident, legal representative, responsible party or SDM; (C) a provision allowing the MHMR authority staff an opportunity to participate in or provide information for the facility's admission, programmatic, and discharge-planning meetings when the specialized services needs of an eligible resident are being considered; and (D) a provision allowing the nursing facility staff to participate in or provide information to the MHMR authority case manager during each resident's specialized services planning. (8) The case manager must provide and the nursing facility must maintain, as a separate document in the resident's record, a copy of the original Individual Specialized Services Plan developed by the interdisciplinary team, and any subsequent changes. (9) The case manager must provide to the facility and the facility must document in the comprehensive care plan the following information from the specialized services plan, the designated provider, the case manager, other written report, and documented telephone contacts: (A) efforts to resolve the differences between the specialized services plan and the comprehensive care plan; (B) specialized services objectives; (C) the resident's adjustment to the specialized services program; and (D) changes and modification to the plan. (10) The facility must ensure that all residents who may benefit from specialized services are identified. (11) If the individual requires specialized rehabilitation services, the facility must cooperate in obtaining the screening or evaluation. (12) For those residents who have been determined to be appropriately placed in a nursing facility and to need specialized services and who desire alternate placement, the following alternate placement activities occur: (A) The MHMR authority shall locate alternate placement in consultation with the resident or his legal representative. (B) The resident, his legal representative, or SDM must approve the alternate placement. (C) If the resident, the legal representative, or SDM refuse all alternate placement options, the resident may remain in the nursing facility and receive specialized services there until an acceptable option is found. (13) For those residents who have been determined to not need nursing facility services and to need specialized services and who have 30 continuous months of nursing facility residence, a choice will be offered to either seek alternate placement or remain in the nursing facility. If the resident, legal representative, or SDM chooses alternate placement, the following alternate placement activities occur: (A) The MHMR authority shall locate alternate placement in consultation with the resident, his legal representative, or SDM. (B) The resident, his legal representative, or SDM must approve the alternate placement. (C) Until the resident, his legal representative, or SDM approves an alternate placement, the resident may remain in the nursing facility and receive specialized services. (14) For those residents determined not to need nursing facility services and to need specialized services but who do not have 30 months continuous residence, the resident will be discharged according to procedures stated under sec.19.502 of this title (relating to Transfer and Discharge). (f) Limitations on provider charges. Nursing facilities which admit or retain individuals with a diagnosis of mental illness, mental retardation, or a related condition who have not been screened by DHS or who admit or retain individuals who do not need nursing facility services and who require specialized services will not be reimbursed for that individual, as described in sec.19.1708 of this title (relating to Limitations on Provider Charges to Patients). (g) Discharge planning. Nursing facilities must provide discharge planning services to all residents who are to be alternately placed as described in this section and provide residents those rights described in sec.19.502 of this title (relating to Transfer and Discharge). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 10, 1997. TRD-9709003 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: August 1, 1997 Proposal publication date: May 9, 1997 For further information, please call: (512) 438-3765 CHAPTER 72.Memoranda of Understanding with Other State Agencies Memorandum of Understanding Concerning the Capacity Assessment of Persons Who Are Elderly and Persons with Mental Retardation and/or Development Disabilities 40 TAC sec.72.501 The Texas Department of Human Services (DHS) adopts an amendment to sec.72.501 without changes to the proposed text published in the February 11, 1997, issue of the Texas Register (22 TexReg 1600). Justification for the amendment is provision of a uniform and thorough process for evaluating a nursing facility resident's need for guardianship referral to probate court and the requirement to review and modify the Memorandum of Understanding found in Health and Safety Code, sec.533.044. The amendment will function by defining who may initiate and administer the assessment tool and require the departments to write a final report on the pilot study of the tool and by implementing use of the tool at nursing facilities, licensed by DHS, and residential services facilities, certified by, operated by, or contracting with the Texas Department of Mental Health and Mental Retardation (TDMHMR). The department received comments from Texas Health Care Association (THCA) and an individual. A summary of all the comments received and DHS's responses follow: Comment: Add language to sec.72.501(d) stating that a capacity assessment will be initiated when a person communicates a report of resident incapacity orally, in writing, or by any other method to any member of the planning team or interdisciplinary care team. A person should address a written report of incapacity to the planning team or interdisciplinary care team. Response: The department does not believe the MOU needs to be amended; however, the rule for administering the capacity assessment will specify that reporting suspected incapacity may be orally or in writing and that written reports should be directed to the planning team or the interdisciplinary care team. Comment: The preamble of the MOU in the Texas Register stated there is no anticipated economic cost to persons who are required to comply with the proposed section. If it is implemented as proposed, there will be a cost to every nursing facility in the state, specifically for professional staff time required to gather the information. Response: These amendments only affect the MOU. Use of the assessment tool is currently required only as part of an on-going pilot project. When rules are proposed mandating use of the capacity assessment tool, then the department will address the anticipated economic impact of implementing the capacity assessment at nursing facilities. Comment: The capacity assessment information should be used only for individuals with an indication of a need for guardianship. There is concern about the duplication of information on this tool that is already collected by nursing facilities through other documents such as the Minimum Data Set (MDS), which is quite comprehensive. Information collected from other documents in the specific facility should be used as much as possible in order to avoid duplication of effort. Response: The department agrees the focus of the capacity assessment is to assess the need for a guardianship. Regarding completion of the assessment, DHS agrees that background information such as current residence, prescribed medications and diagnoses, may be taken from a resident's nursing facility documents. However, it disagrees with using the MDS to complete the capacity assessment. The MDS is not designed to assess a person's decision-making capacity for self-care and financial management. Comment: The first sentence in sec.72.501(c) states that "the capacity assessment tool will be administered to an elderly person . . . when incapacity is suspected or reported." Currently, there is no rule binding nursing facilities to utilize the capacity assessment for self-care and financial management. However, the wording in the MOU requires the nursing facility to complete the assessment on every admission if incapacity is suspected or reported. In a nursing facility, this could include almost every admission-- short-term memory loss, long-term memory loss, depression, physical impairments, etc. We suggest that instead, the assessment be available where a decision needs to be made about guardianship. If a patient has a surrogate decision-maker, for example, the referral to court for guardianship might not be indicated, and completion of the tool not necessary. The nursing facility already has the MDS assessment on the resident. The Capacity Assessment should be reserved as a tool that is available when the individual does not have a legal representative to speak on their behalf and referral for guardianship is indicated. Change "will" to "may" in sec.72.501(c) to read "the capacity assessment may be administered . . ." Response: The department disagrees with the comment. The MOU states that a capacity assessment will be administered to determine the need for guardianship when incapacity is suspected or reported to a member or members of the interdisciplinary care plan team at a nursing facility. It does not require administering an assessment on every nursing facility admission. if the person has a legal guardian or a surrogate decision maker, a capacity assessment will not be initiated. The use of "will" in sec.72.501(c) conveys the meaning of sec.533.044, Health and Safety Code, which mandates the adoption of a MOU that requires the administration of a uniform assessment tool to assess the need for a guardian. Comment: Change "will" to "may" in sec.72.501(d) to state, "A capacity may be initiated when incapacity is suspected by or reported to . . ." Response: The use of "will" in sec.72.501(d) conveys the meaning of sec.533.044, Health and Safety Code, which mandates the adoption of an MOU that requires the initiation of a uniform assessment tool to assess the need for a guardian. Comment: There needs to be consistency between different types of providers on the administration of the capacity assessment tool. Section 72.501(e)(1) of the MOU states the licensed or certified professional designated by the planning team administers the tool in a residential services facility. However, sec.72.501(e)(2) states the social worker completes the tool with optional assistance from members of the interdisciplinary care plan team in a nursing facility. Instead of requiring the social worker in a nursing facility, the requirements should be consistent with the requirement for residential services facilities. Delete sec.72.501(e)(2) and reword sec.72.501(e)(1) to include nursing facilities. Response: The department disagrees with this comment and is implementing the recommendation of the Advisory Committee which called for the social work staff to administer the assessment tool. Part of the Advisory Committee's rational was that residential services facilities and nursing facilities serve different populations. As a result, the professionals providing services at these facilities also differ. A social worker is the professional at a nursing facility who monitors the psychosocial well-being of each resident and is the most qualified professional to oversee the administration of the capacity assessment with assistance from professionals on the interdisciplinary care plan team. Comment: Allow the capacity assessment information, listed in sec.72.501(f), to be taken from the MDS information already collected for the nursing facility residents. Response: The department disagrees with the comment. The MDS is not designed to assess a person's decision-making capacity for self-care and financial management. The assessment cannot be completed solely by obtaining information from the MDS. The amendment is adopted under the Health and Safety Code, sec.533.044, and the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs. The amendment implements the Health and Safety Code, sec.533.044, and the Human Resources Code, sec.sec.22.001-22.030. sec.sec.72.501. Uniform Assessment Tool for Assessing Decision-Making Capacity. (a) Introduction and legal authority. The Texas Department of Mental Health and Mental Retardation (TDMHMR) and Texas Department of Human Services (TDHS)(the agencies) by rule adopt a joint memorandum of understanding (MOU) as required by the Texas Health and Safety Code sec.533.044 which requires the use of a uniform assessment tool to assess whether an elderly person, a person with mental retardation, a person with a developmental disability, or a person who is suspected of being a person with mental retardation or a developmental disability and who is receiving services in a facility regulated or operated by TDMHMR or TDHS needs a guardian of the person or estate, or both. This agreement is entered into pursuant to the provisions of the Human Resources Code sec.22.002(f), and is therefore not subject to the provisions of the Interagency Cooperation Act. (b) Facilities. The agencies prescribe these as the facilities which must use the capacity assessment tool: (1) TDMHMR: residential services facilities (community-based residential services at community centers, state schools, state centers, and intermediate care facilities for persons with mental retardation or related conditions (ICFs- MR/RC)); (2) TDHS: nursing facilities. (c) Circumstances of capacity assessment. In a residential services facility and a nursing facility, the capacity assessment tool will be administered to an elderly person, a person with mental retardation, a person with a developmental disability, which was not diagnosed as a result of the development of mental illness before age 22, or a person who is suspected of being a person with mental retardation or a developmental disability when incapacity is suspected or reported. (d) Initiation of capacity assessment. A capacity assessment will be initiated when incapacity is suspected by or reported to: (1) member(s) of the planning team at a residential services facility; and (2) member(s) of the interdisciplinary care plan team at a nursing facility. (e) Administration of capacity assessment. The capacity assessment will be administered by: (1) the licensed or certified professional designated by the planning team at a residential services facility; and (2) the social worker at a nursing facility, with optional assistance from member(s) of the interdisciplinary care plan team. (f) Focus of capacity assessment. The assessment tool will be used to assess the capacity of an identified person's ability to make decisions concerning the person's own welfare and financial affairs, including the person's: (1) need for a guardianship and the type of guardianship that is appropriate for the person; (2) ability to care for the person's own physical health or to manage the person's own financial affairs; (3) ability to provide food, clothing, or shelter for himself or herself; (4) decision-making ability; and (5) ability to communicate a decision. (g) Agencies' administration of capacity assessment. Beginning September 1, 1996, the agencies will produce a report on the results of the capacity assessment pilot study, develop the final version of the capacity assessment tool and implement the use of the capacity assessment tool at residential services facilities and nursing facilities. (h) Annual review. No later than the last month of each state fiscal year, TDMHMR and TDHS shall review and modify the MOU as necessary. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 10, 1997. TRD-9709002 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: August 1, 1997 Proposal publication date: February 11, 1997 For further information, please call: (512) 438-3765